In recent months, Utah officials have taken aim at websites such as bustedmugshots.com and mugshots.com, but transparency is taking the hit.

Utah officials accuse the sites of extortion, on the grounds that the sites publish jail booking photos and either charge or direct visitors to a vendor who will remove them — for a fee going as high as hundreds of dollars.

I’ll leave the debate over the ethics of such publications to my colleagues on the Ethics Committee. Instead, let’s look at how Utah’s attempts to deal with it has affected access to public records.

Previously, Utah residents could go on a jail website and see who had been booked and for what crime.

Salt Lake County Sheriff Jim Winder simply took down the photos from the sheriff’s website. Those wanting pictures have to file public records requests under Utah’s Government Access and Management Act.

The Weber and Utah county sheriffs didn’t take the draconian steps Winder did, but they made it harder for the mug-shot sites to scrape photos, and the general public to see who had been booked into the jail.

In Weber County, you have to know the name of the person who has been arrested in order to see the photo. Utah County’s jail website merely posts the pictures in thumbnail size, making the photo barely discernible to people looking at it on a screen, and turning it into a Technicolor blur if it is enlarged to any degree.

But that was not enough for Winder and others.

The Utah State Legislature passed HB408, sponsored by Rep. Paul Ray, R-Clearfield, at Winder’s insistence. The bill requires people seeking mug shots to sign a sworn statement promising not to post the photos on a site that charges people to remove them. Violators would be prosecuted for lying to police, a crime punishable by up to six months in jail.

The bill sailed through the Legislature with no debate or amendments, spurred on by Ray’s pleas to consider the poor soul who got arrested and is trying to get his or her life back in order only to be haunted by their mug shot popping up on web searches.

But this law sets a dangerous precedent. It grants agencies holding public records to weigh what a requester will use a record in whether to grant it to them. The law specifically deals with mug shots, but its principles could easily be extended to other records, which runs counter to the premise that the public doesn’t have to explain why it wants records.

If this were the last shot in this war, that would be bad enough. But wait, there’s more!

This past week, the Salt Lake County Council sustained Winder’s rejection of Kyle Prall’s request for almost 1,400 records to post on his bustedmugshots.com website. Winder stated, and the council affirmed, that the mug shots were copyrighted images and could not be released.

I’ll wait while you clean the beverage you just spit out off your computer screen.

That’s right. A public record, created by a government entity, is being held back because of a copyright claim.

First, U.S. copyright law is clear: Government can’t copyright materials it creates or commissions. That’s why you’re free to copy Dorothea Lange’s “Migrant Mother” photo as much as you want.

Second, if we follow the copyright argument to its illogical conclusion, all public records could be closed off because releasing them would violate copyright. Is that what we really want?

Winder and others do the accused no favors by blocking access to mug shots. Sure, it could be embarrassing to see your jail photo plastered on websites, but making them public provides a great protection, as my colleague David Cuillier points out.

The mug shot, Cuillier argues, provides proof that someone has been arrested and how they were treated at the time of their arrest. Contrast that with Argentina’s “Dirty War,” where countless people viewed as opponents to the military junta essentially “disappeared” when they were taken secretly by the government and tortured and murdered.

“If Utah officials want a Stalinist society, they’re off to a good start,” Cullier said.

The Cherokee Scout in Murphy, N.C., did not do the open-government movement any favors this week.

As Jim Romenesko reported, the paper issued an apology for filing a records request with Cherokee County Sheriff Keith Lovin for a list of concealed-carry permit holders in the county, as well as the application. The paper indicated in a letter to readers that it was looking into allegations that Lovin was only issuing permits to people he favored. There was no indication that the paper was going to publish all the names it got.

But Lovin refused to grant the request, and posted the paper’s request, as well as his response and his vow to “support the constitution [sic] and all amendments including the Second Amendment on the department’s Facebook page. I will continue to uphold my Oath of Office [sic] and serve the Citizens of Cherokee County.” He obviously forgot that his oath was also uphold the laws of North Carolina, including the open-records law that said the concealed-permit information is a matter of public records.

The sheriff’s posting the information on the department’s Facebook page naturally got the gun-rights crowd fired up (no pun intended), who promptly denounced the paper’s efforts.

Which brings us to the withdrawal of the open-records request, as well as the apology from publisher David Brown and editor Robert Horne, who called the request “a lapse of judgment.”

“As publisher of your local newspaper, I want to apologize to everyone we unintentionally upset with our public records request for a list of those who have or have applied for a concealed carry permit. We had no idea the the reaction it would cause.

“Sheriff Keith Lovin had the best interests of the people of Cherokee County at heart when he denied our request. The Scout would like to offer an apology to him as well.”

Brown also brought out his and Horne’s bona fides as local folks, with Brown even noting he had been baptized there.

The only lapse of judgment was backing down on the request and kissing Lovin’s boots.

This does not help the Scout, or its readers. Rather, Lovin has learned that he can make the local paper back off and print only the news he wants. He’s also learned he can break open-records laws, which he is sworn to uphold, without any fear of repercussion.

And it will embolden others to follow Lovin’s example and bully journalists into sticking with the press releases they are being spoon fed.

Would the paper had faced a backlash if it pursued the case? Probably. But nobody ever said that journalism was a risk-free enterprise, especially when it comes to speaking truth to power.

Elijah Lovejoy could have probably lived a longer, more prosperous life if he had not challenged the institution of slavery. While the abolitionist publisher paid with his life, he also sent a message that killing the messenger doesn’t kill the message.

Likewise, thugs in Arizona thought they could keep their misdeeds secret by killing Don Bolles, but instead their crimes got even greater media scrutiny.

In the spirit of Bolles and the Arizona Project his death inspired, maybe we should all file a records request with Lovin for the concealed-carry permit list, and let him know that he may have silenced one news outlet but true journalists never give up.

Lovin’s contact information can be found here.

Utah’s open-government advocates got something After a year-long fight, the Utah State Legislature has finally released 16,000 pages of documents related to the state’s redistricting efforts.

The decision to release the documents came after the Utah Democratic Party threatened to sue the state for access to the record. Lawmakers refused to turn over the records until a $9,250 bill for compiling the data was paid.

Utah’s Government Records Access and Management Act allows fees to be waived if the records request benefits the public. Legislators argued that the Democratic Party’s request failed that test, because they believed it was for a political purposes. But isn’t calling out a Republican-dominated Legislature that drew congressional and legsilative district lines behind closed doors a public benefit?

Lawmakers also said they decided to dump the data online after media outlets filed records requests, which convinced them that there was a public demand for the records.

Click here to see the documents.

Only in Utah, where legislators earned a Black Hole award for attempting to gut the state’s open records law, would a bureaucrat attempt to criminalize talking about a records denial.

The Salt Lake Tribune is challenging the Utah Transit Authority (UTA), which operates a bus and train system serving Salt Lake and Utah counties, for holding back crime statistics. The Tribune is seeking data about crimes that have occurred on the transit system as part of an ongoing series about crime trends in Salt Lake County. Fifteen other agencies have complied.

The Tribune reports that the transit authority, in its response to the paper’s appeal to the State Records Committee, not only wants its denial of the request upheld, but it also wants the paper and its reporters sanctioned for allegedly violating Utah Code 76-8-104, which says a person is guilty of a class A misdemeanor “if he threatens any harm to a public servant, party official, or voter with a purpose of influencing his action, decision, opinion, recommendation, nomination, vote or other exercise of discretion.”

The authority claimed that a Tribune reporter threatened to write a negative story if the records were not turned over.

When Tribune columnist Paul Rolly contacted the authority, he was told that it was a misunderstanding, that the attorney who drafted the response to the appeal was reacting emotionally. Rolly was told by transit authority officials that the authority was not alleging criminal conduct by the paper or its journalists.

Rolly said that Tribune reporter Lee Davidson said he never threatened a UTA spokesman with bad press for not providing the records. He told the spokesman that he would have to write that the UTA was not providing the records, Rolly reported.

The records committee, which cannot issue criminal sanctions anyway, will hear the Tribune’s case Thursday.

In 2011, Utah journalists and activists beat back one of the worst assaults on the state’s Government Records Access and Management Act (GRAMA). While the Utah State Legislature was forced to withdraw House Bill 477 and pass legislation that would strengthen GRAMA, the spirit of the anti-transparency legislation still lives on in the halls of Utah’s Capitol.

The Salt Lake Tribune and the Utah Democratic Party requested documents pertaining to the state’s recent redistricting efforts. Lawmakers produced the records, first for the Democrats, but have only released one box of documents. The hold up? An almost $10,000 bill for researching and copying the records. While the Democrats paid a previously agreed to price of $5,000 for the work, the Republican-dominated legislature slapped an extra fee on, and only allowed the Democrats to take one box of the state’s choosing, holding the others back until the bill is paid.

The Tribune argued for a fee waiver, arguing that it was seeking the records for public benefit. GRAMA clearly defines journalism as inherently in the public interest, but the Legislature’s own records committee — comprised of legislative leaders — denied the request.

Eric Weeks, a legislative attorney, argued  that “When there is a significant cost to taxpayer funds involved in a request, our policy is to charge a fee for that regardless whether there’s a public interest test or not.” Weeks also argued that the state should not be used as a “free research service” by the news media.

That was one of the arguments supporters of HB477 threw out , proposing that the state not only recoup the time of employees tasked with filling records requests, but covering the employee’s benefits and utility costs for their offices.

Revealing the inner workings of Utah’s redistricting process is clearly in the public interest. The public has a right to know if legislators crafted districts with the intent of protecting incumbents and squeezing out opponents, a process that, in 2000, the Wall Street Journal called one of the most egregious cases of gerrymandering in the nation. Using outrageous fees, especially for documents that were already assembled and researched, could be seen as an attempt to keep the process shrouded in secrecy, further undermining public confidence in the Legislature.

But it also suggests that while lawmakers repealed HB477, they still have not got the message that transparent government is the best government.

Today’s wacky freedom of information tidbit comes from across the pond in the United Kingdom.

Zombies, aliens and Santa’s sleigh may be partly to blame for the backlogs in many agencies’ freedom of information responses.

What do these three have to do with FOI, you ask?

They were all on a list of weirdest freedom of information requests in 2011 in the United Kingdom. While laughable, it is problematic when agencies spend precious time responding to frivolous requests like these.

“Across the country, hundreds of freedom of information requests are sent to local authorities every day. Councils are committed to transparency and accountability and put a lot of time and effort into ensuring that legitimate requests for information are met with full and comprehensive responses,” said Councillor Peter Fleming, Local Government Association improvement board chairman, in a news release.  ”However, as this list shows, some of the requests councils receive do not appear to relate very closely to the services they are focused on delivering every day of the year.”

The weirdest request: A petition odd enough to make one question either the requester’s sincerity or mental stability.

“How does the council plan to help the brave soldiers of our infantry if and when Napoleon and his marauding hordes invade the district?” read the request to West Devon District Council.

Many people in the freedom of information community are making good use of new open records legislation by exposing scandals and keeping government officials accountable. But senseless queries delegitimize the crucially important role of  freedom of information.

Read the full top-10 list.

The Local Government Association in the United Kingdom, head of more than 350 English and Welsh councils, compiled the list.

Next week: FOI and UFOs

Whitney is the summer Pulliam/Killgore intern with the Society of Professional Journalists. She recently graduated from Brigham Young University after studying journalism. Connect with her via email –  wevans@hq.spj.org –  or on twitter – @whitevs7

*Know something about Freedom of Information that you think we should cover in a blog post? We want to hear from you! Send information to wevans@HQ.SPJ.org. It may be featured in a future post.

Giraffes have rights, too.

This week we will look back at wacky Freedom of Information requests or denials. Today’s denial was sent in by Charles Davis, associate professor at the Missouri School of Journalism and SPJ Freedom of Information committee member.

A reporter requesting a dead giraffe’s medical records was denied access because of the animal’s privacy rights.

After the death of Ryma in 2002, a giraffe  housed in  Smithsonian’s National Zoo, Washington Post reporter D’Vera Cohn requested the necropsy and pathology reports and the animal’s medical records.

The National Zoo rejected the request out of respect for the dead giraffe’s privacy, said Lucy Spelman, National Zoo director at the time, The Washington Post reported.

However, this denial had some animal rights supporters scratching their heads, including Laurence Tribe of Harvard Law. Tribe supported legislation allowing legal representation for animal rights.

“It is sort of the fox guarding the hen house,”  he said of the National Zoo.  ”They are clearly the ones whose neglect or mistreatment might be at issue.”

Post reporter Cohn had few options after the denial because the Smithsonian is not subject to the Freedom of Information Act, the Washington Post explained, because although federally funded, the Smithsonian does not belong of the Executive branch.

Despite this, the Smithsonian has a disclosure policy and has responded to other requests for information, the Post reported.

For the full article, click here.

Whitney is the summer Pulliam/Killgore intern with the Society of Professional Journalists. She recently graduated from Brigham Young University after studying journalism. Connect with her via email –  wevans@hq.spj.org –  or on twitter – @whitevs7

*Know something about Freedom of Information that you think we should cover in a blog post? We want to hear from you! Send information to wevans@HQ.SPJ.org. It may be featured in a future post.

Police violating open access laws, newspaper says

A gang boundary map is being withheld by police in Ohio.

After learning about its existence, the Toledo Blade requested to see and copy the map of growing gang-related activity and shootings from this year, Blade staff writer Erika Blake reported.

Police claimed that disclosing the map would interfere with ongoing investigations.

The Toledo Blade sued the city of Toledo because it said outright concealment violated Ohio’s open records law. The Blade said police should at least release a redacted version of the map.

The police department’s tight fist on the map came after officers already told a Blade reporter about the map on more than one occasion. The map allegedly hangs on a wall in the Safety Building and is available on the department’s computer system, the lawsuit said.

The lawsuit states public interest should be taken into consideration because city officials are planning to reallocate police resources, including possibly relocating a police station, the Blade reported.

Read more here.

Whitney is the summer Pulliam/Killgore intern with SPJ. She recently graduated from Brigham Young University after studying journalism. Connect with her via email –  wevans@hq.spj.org –  or on twitter – @whitevs7

*Know something about Freedom of Information that you think we should cover in a blog post? We want to hear from you! Send information to wevans@HQ.SPJ.org. It may be featured in a future post.

The Michigan Department of State Police wins the wacky agency of the month award. Last week the agency sent a letter to the Mackinac Center for Public Policy saying it will cost $6.9 million to provide copies of requested records. Don’t allow outrageous copy charges to deter your request.

The nonpartisan group says on its Web site that it wanted to find out how the police have spent Homeland Security money since 2002. In a response to the group’s request, the police said they estimate it will cost $6.1 million for staff time to search and retrieve the documents, and then they estimated they will find 2,045,783 pages (to photocopy at 36 cents a page). Umm, that’s a pretty precise estimate of pages. The letter requests a check for $3.4 million as a deposit.

Michigan is one of the states that allows agencies to charge for staff time for getting records together (see www.rcfp.org/ogg/ for how your state handles copy costs). Some states allow agencies to charge only for the actual cost of copies (printer, paper, toner). Some states have set fees, such as 15 cents per page.

In any case, don’t let an agency thwart a valid request by concocting unreasonable copy fees. In the September-October Quill issue I provide 10 tips for lowering your copy fees (https://www.spj.org/quill_issue.asp?ref=1600). Check them out!

Washington state Gov. Christine Gregoire, a democrat, is following in the footsteps of George W. Bush by claiming “executive privilege” as the basis for denying a public records request.

The Evergreen Freedom Foundation, a libertarian non-profit group, wanted a bunch of records related to an executive order she issued regarding climate change. Her office withheld dozens of documents, claiming executive privilege and the deliberative process exemption. Well, there is a deliberative process exemption in the state public records law, but no “executive privilege” exemption.

The group appealed and threatened legal action, causing the governor’s office to cough up the records. An account of their struggle is posted here. Yet, in a letter an attorney for the governor still claims they can keep records secret because of “executive privilege.”

Gads, what happened to her? When she was attorney general she assured the media (I was in the room when she made some of these promises) that she would fight for open government. Then she becomes governor and turns secretive? Attorneys will come up with all sorts of creative ways to keep records secret. But this story goes to show that if you push hard enough and keep at it, you can cut through the B.S. and get the records the public is entitled to.