A new law designed to encourage municipalities and other government agencies to provide the public access to information may make the private information of employees more vulnerable and open for public consumption, a Valley labor attorney says.
“It’s not a huge change, but it could have a dramatic effect on deciding what documents to release,” said Troy Foster of law firm Lewis & Roca’s labor employment section.
The law, which was passed by the Legislature in the recently ended session and goes into effect in September, allows the court to more easily force public entities to pay the legal fees of someone who is denied a public record. Currently, the requestor has to prove the public body was “arbitrary and capricious” in denying access to documents. Under the new law, the standard is lowered to substantially proving the record should have been provided.
While he acknowledges it is good for the public, Mr. Foster says the law may be problematic for employees, as records potentially damaging to their careers — like personnel files — may be provided when requested because the government agency doesn’t want to risk losing the case and paying legal fees.
“There may ultimately be more access to public records, but public entities are going to have to decide when to say, ‘This is private information,’ because it’s a lot more expensive to do so,” he said.
Sen. Martin: Redact info
Sen. Dean Martin, R-6, sponsored S1225 (Laws 2006, Chapter 249) and says the law addresses situations in which cities or school boards opted to withhold entire documents because one portion contained private information.
“They need to redact it,” he said. “The government needs to start doing that. They can’t hide behind, ‘It has private information,’ anymore.”
Using private information as an excuse for denying legitimate access to records, he said, will result in losing any lawsuits.
Since first being elected in 2000, Mr. Martin has focused on improving the public’s access to government records and documents. He said laws like this give more power to citizens, most of whom are unable to challenge public records denials under the current law because of the onerous expense.
“It basically meant only the rich could get public records… to find out what the government is doing if the government doesn’t want you to know,” he said.
The goal now, Mr. Martin said, is to educate the public to changes in the public records law and to make sure governments follow the new guidelines.
“It’s a small change in the way they operate,” he said, “but it’s a big leap in opening up government.”