Salt Lake City Transparency Initiative – Is Salt Lake still transparent?

This article discusses how Salt Lake City established a new higher level of transparency, building on the foundation provided by the Utah Open and Public Meetings Act and Government Access and Management Act.

On Beyond GRAMA and the Open Meetings Act – The Proposal for Greater Transparency, Openness, and Inclusion in Salt Lake City Government

by Edwin P. Rutan, II and Esther Hunter

AUTHOR’S NOTE: Ed Rutan, City Attorney, and Esther Hunter, Senior Policy Advisor to the Mayor, are supporting the Transparency Project administratively for the City (2009 archived article of the Utah Bar Association)

The Open and Public Meetings Act (the Open Meetings Act) has been on the books in Utah for thirty years now and the Government Records Access and Management Act (GRAMA) for nearly twenty. These two Acts are fundamental pillars of the way that the business of government is conducted in Utah. The Open Meetings Act states a very clear public policy that the state and its political subdivisions are to “take their actions openly” and “conduct their deliberations openly.” Utah Code Ann. § 52-4-102(2) (2007). Similarly, GRAMA recognizes “the public’s right of access to information concerning the conduct of the public’s business” (while also recognizing “the right of privacy in relation to personal data gathered by governmental entities”). Utah Code Ann. § 63-2-102(1) (2004). These two Acts laid the foundation for a growing public expectation of “transparency” in our local governments.

As important as these two Acts are, they do not require transparency beyond the specific threshold they create. Their structure limits the breadth of transparency that is required in three key respects. First, local government entities are only obligated to provide information under GRAMA on a reactive basis. There is no obligation to provide information without a request. Similarly, GRAMA applies only to existing documents. There is no obligation to create a new document presenting the information in a readily understandable way. In other words, a GRAMA request is like a document request as opposed to an interrogatory. Second, the Open Meetings Act generally does not apply to the operations of the executive branch. In local governments today, the decision- making process of the Mayor and the departments of the executive branch can be every bit as important to the public as the decision-making process of the City Council. Third, GRAMA only directly benefits the person making the request. The information doesn’t necessarily become available to the public at large unless a journalist who subsequently reports on it makes the request. Similarly, the Open Meetings Act directly benefits only those who attend the meeting or who see or read a journalist’s report. The access provided doesn’t necessarily directly benefit the public at large.

To be sure, GRAMA and the Open Meetings Act do not prohibit efforts by government entities to provide increased transparency. Salt Lake City, like many other local governments, already provides access to information well beyond the minimum required by the two Acts. However, the two Acts do not provide local governments with a practical guiding framework for taking transparency to higher levels.

Moreover, the value of open meetings and access to information is dissipated to the extent that members of the public do not understand the governmental processes they are observing, the significance of the information they have received, or both. Public education is understandably beyond the scope of GRAMA and the Open Meetings Act, but it is nonetheless fundamental to the achievement of true transparency.

Even if the public has access to information and fully understands it, a government is not truly “open” if the citizens do not have the opportunity to provide their input at the relevant “impact points.” A variety of state statutes already provide for public input through public hearings and otherwise in specific contexts, but there is no across the board requirement.

Finally, like everything else over the past two generations, the computer has impacted the potential for transparency. More and more cities around the country are pursuing “e-government.”

The Proposal for Greater Transparency, Openness, and Inclusion in the Salt Lake City Government Initiative recently announced by the Mayor and City Council is an effort to provide a centralized focus and policy context for on-going transparency initiatives by the various parts of City government. The project will look beyond the minimum legal requirements of GRAMA and the Open Meetings Act and current City practice to identify new areas where City government can be made more effective through greater transparency. A preliminary proposed “work plan” has been released for public comment. Comments may be submitted online at www.transparencyslcgov.com. Once public comments have been received, a final work plan will be prepared. It is anticipated that the project will address the aspects of transparency discussed below. In addition to specific initiatives, a key output of the project will be an overall City Policy on Transparency to guide future city employee decisions.

E-government and the Ubiquity of Information
At the outset, it is important to note that the benefits of effectively utilizing the full potential of e-government cannot be overemphasized. Salt Lake City has a website that already is award winning and can be made even better by presenting even more “user useful” information in a “user friendly” way. The success of the transparency project in large measure will be determined by the City’s ability to use electronic media to their fullest advantage. Whether it is on the City’s website or Salt Lake City Television Channel 17, the City has the electronic capability to make information available to virtually all members of the public simultaneously.

Proactive Provision of Information
The project will consider providing more information on a “proactive” basis in two senses. First, more of the City’s administrative decisions or actions will be made available online. For example, the City’s Community and Economic Development Department recently decided to place all of the Zoning Administrator’s administrative interpretations on line. Second, the City will consider preparing special written materials to explain complex issues to the public. A recent example is the “Riparian Corridor Fact Sheet” prepared by the City Council to provide basic information on a controversial issue in a readily understandable format.

Opening Executive Branch Processes
Meetings of executive branch employees rarely, if ever, fall within the definitions of a “meeting” and a “public body” in the Open Meetings Act. But it is often within the executive branch that critical policies ultimately adopted by the City Council are initially developed. Public awareness of and input on the progress of issues through the executive branch processes can be critical to the public credibility of the City’s actions. Current City policy already provides that drafts of administrative rules be circulated for comment to a reasonable audience of affected customers, but more can be done to broaden that audience and enable them to provide their input more effectively. For example, the Mayor is planning a new section on the City’s website that would provide updates on policy initiatives in the “pipeline.”

With respect to executive branch meetings themselves, increased openness is certainly possible. For example, the Mayor recently opened to the media a meeting with representatives of The Leonardo on how to proceed with that project.

Public Education
A good example of the challenge is financial transparency. The legislature adopted a bill calling for more financial transparency at the state level during the 2008 session and Salt Lake City, like most municipalities, already provides a good deal of financial information to the public during the annual budget process. However, for most citizens the reams of budget documents can best be described as “mind boggling.” “Truth in taxation” is a frequently heard term but probably few lawyers, much less the public at large, can actually explain the intricacies of how it works.

Another education challenge Salt Lake City faces is making its various processes – from applying for a business license to appealing a land use decision – readily understandable for the citizens affected by those processes. Simply and concisely written descriptions illustrated with flowcharts placed on the City’s website could go a long way toward really opening the doors to City Hall.

Public Input
While some areas of municipal government such as land use planning and municipal finance already have well-established processes for public input, many others do not. Even within these established processes public input may be timed only at discrete points. Exploring possibilities for broader public input will be an important part of the project.

Limits on Transparency
While the City’s focus will be on providing increased access to meetings and information, it must be remembered that the public interest will not be served by unlimited transparency. As noted above, GRAMA recognizes the need to balance personal privacy against the public’s right to know, and the Open Meetings Act recognizes specific, narrow exceptions where the public interest is better served by a closed meeting, including, for example, discussion of the “character, professional competence, or physical or mental health of an individual.” Utah Code Ann. § 52-4-205 (2007). Providing greater sensitivity to the determination of when the public’s right to know trumps the individual’s right of privacy will be an important challenge for the project.

One area where “openness” could actually harm the public interest that we have given preliminary consideration to is what we are referring to as the “free thinking zone.” The challenges that Salt Lake City and other local governments face today require the best, most creative thinking of all their employees. “Out of the box thinking” often is called for, but most “out of the box” thoughts do not withstand the test of closer analysis. That doesn’t mean that they weren’t worthwhile ideas to consider, just that they didn’t pan out in the end. However, there is a very real risk that out of the box thinking, “devil’s advocate” thinking, or other creative thinking could be deterred by the prospect of public disclosure of preliminary ideas that didn’t pan out. Thus another critical challenge for the project will be developing guidelines for determining when a new idea is ready for the public “light of day” without deterring internal creative thought and discussion.

Salt Lake City government is very excited about continuing its progress toward transparency through this project. This project can have a transformational impact on how we serve those who live and work in Salt Lake City. Your comments on the proposed work plan and the various initiatives developed as the project progresses can help make Salt Lake City government work more effectively for you.

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