Public records bill would impact reporting on government probes

Feb 17, 2022, 6:51 PM | Updated: Sep 23, 2022, 1:00 pm
grama public records...
People waiting outside the Utah House of Representatives chambers on February 16, 2022. Photo: Paul Nelson

SALT LAKE CITY — A bill before the Utah Legislature would make it harder for reporters — and the public — to access some records stemming from internal government investigations. 

Friday at 8 a.m., lawmakers plan to take up House Bill 399, which targets the types of public records available through GRAMA, Utah’s Government Records Access and Management Act.  

GRAMA and compelled testimony

Like the Freedom of Information Act, which allows the public and the media to request records from federal government agencies, GRAMA allows the public and the media to access records from state and local agencies in Utah.  

H.B. 399 affects a small part of GRAMA. Specifically, it would impact official, compelled statements made by government employees as part of an internal investigation. 

Related: How to file a GRAMA request

This type of compelled statement happens most often with police officers.

“They’re required, by law, to make a statement under the threat of dismissal, the threat of being fired, if they don’t comply,” said Sen. Curtis Bramble, R-Provo. 

Related: An explanation of Garrity statements and rights

These compelled statements are known as “Garrity statements,’ based on Garrity v. New Jersey, a U.S. Supreme Court decision.  Essentially, the justices ruled governments can compel police officers to make statements or lose their jobs. However, prosecutors cannot use those statements against the officers in a criminal case.

Bramble supports exempting those statements from public records requests as well.

“It may be protected from convicting him in the court of public opinion,” he said.

Garrity statements in the Gabby Petito investigation  

Under the proposed changes to GRAMA, the public might never have learned details from a police interaction with Gabby Petito in Moab. 

Related: Don’t second-guess Moab police in Gabby Petito case, says lawyer

As part of the city of Moab’s internal investigation into their police department’s encounter with Petito and Brian Laundrie, officers made Garrity statements. Ultimately, the investigation found that the officers made “unintentional mistakes” by not citing Petito for domestic violence.  

Left: Gabby Petito posing with fiancé Brian Laundrie. Right: An image taken from Moab police body camera footage on Aug. 12, 2021. Associated Press

According to Bramble, Garrity statements amount to a rare exception to Fifth Amendment protections for officers.

“With the Fifth Amendment, you can’t be required to make a statement, period,” Bramble said. “Under the Garrity provisions, an employee can be compelled to speak.”

Related: The Fifth Amendment explained

If the bill were to pass, news outlets would not have instant access to Garrity statements. 

Bramble said they would need to request those statements under GRAMA. After that, the news media would need to argue that the public’s right to know outweighs the individual rights of the people mentioned in those statements. If the law enforcement agency or government entity involved declines the request, the news media could take their case to the Utah State Records Committee or to court.

“It’s not beyond their reach, but it places the burden on the media of making the case,” Bramble said. 

‘A trust deficit,’ according to Gov. Spencer Cox 

A chief concern among media organizations and even some public officials boils down to one question: Could this bill keep certain statements hidden from the public? 

Gov. Spencer Cox said governments should make it easier for news media and the public to find information, not harder.  He agrees with the old adage, “sunlight is the best disinfectant.”

“Look, as government right now, we have a trust deficit.  This is true across the world,” Cox said. 

Related: New public access to court records for just $5

The governor has not seen H.B. 399, so he isn’t able to say if he would veto it or not.  But if it passes through the Legislature, he said his team will take a close look at it. 

“Anytime that we are removing access or ‘sunlight,’ I am concerned,” he said.

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Public records bill would impact reporting on government probes