SALT LAKE CITY — State lawmakers are getting ready to consider whether some government records should no longer be made public, even if the release of those records would be in the public’s best interest.
Sen. Mike McKell, R-Spanish Fork, introduced Senate Bill 277 on Thursday. It aims to eliminate a provision of Utah’s public records law known as the “balancing test.”
The balancing test currently allows government agencies to release records when the public interest outweighs any privacy concerns.
Government Accountability
The Utah Supreme Court has decided the balancing test must be considered in cases related to government transparency because “the public interest in governmental accountability will often prevail over the interest of insulating an official from unwanted intrusion.”
McKell said he agreed with the Utah Supreme Court, yet he still proposes the elimination of the balancing test.
Critics of his bill say eliminating the balancing test could lead to less government accountability and more corruption.
The balancing test is often used to justify the release of records related to government employees who resign in lieu of discipline.
Grooming students, kissing, partially nude photos
For example, the Tooele County School District recently applied the balancing test to justify releasing records related to a teacher who allegedly confessed to sexual misconduct with a student.
“Mr. (David) Blanchard had violated boundaries with the student,” wrote Tooele County School District HR Director Terry Christensen. “Mr. Blanchard admitted to giving gifts to her at her home, left on her car, Facebook and Instagram conversations and partially nude photos were exchanged, kissing did occur on numerous occasions. TCSD notified him that he was on administrative leave with pay Monday 4/12/2021 and gave him an indication of our intent to terminate 4/13/2021. Mr. Blanchard tendered a resignation in lieu of termination for cause 4/14/2021. We suspect that there was more involvement beyond what was shared.”
McKell referred to Blanchard’s case as “graphic.” He agreed the records should be made public, so long as the identities of any victims or complainants continue to be protected with redactions.
“I think some of these records do need to be made public, but we need to do that with consistency,” McKell said. “We need to follow the law… There are records certainly that you’ve shown me that should be made public at the right time, certainly, and we need to make sure that that does happen.”
McKell said “the right time” to release a record is at the conclusion of a completed investigation.
But many cases, like Blanchard’s, are not fully investigated because the employee tenders his or her resignation prior to the completion of an investigation. Some government agencies allow employees to resign in lieu of discipline.
63G-2-301(3)(o) only allows the release of formal disciplinary records at the conclusion of a completed investigation. Some government agencies, like Tooele County School District, say the statute does not apply to employees who resign in lieu of discipline.
McKell referred to any attempts not to release such records as a “loophole.”
Licking students
FOX 13 News also showed McKell records related to a case involving a Washington County School District employee named Tawney Campbell.
Campbell reportedly admitted to hugging students and kissing/ licking them on the cheek. She identified four students from Snow Canyon High School, plus “one or two” students from Hurricane High School.
She referred to it as an “act of endearment, as if from a puppy dog.”
“She kissed me on the cheek and then licked me on the cheek,” wrote one student. “It made me feel very uncomfortable, and I didn’t know what to do. So I went and talked to (redacted) and he said she did the same thing to him. So we just ignored it because she’s a very bubbly person so we thought it was just her personality.”
Campbell also admitted to taking students to a Hooters restaurant.
According to the district, she “admitted that the first time she ever licked the cheek of a student was in her classroom about three weeks (prior). In that case she was attempting to wake up a student who was asleep on the floor during lunch period. She kneeled on the floor and licked him in the presence of his girlfriend.”
Washington County School District intended to terminate Campbell despite Principal Kim Monkres stating she was “not concerned” with Campbell being a teacher “and would hire her again.”
Campbell resigned in lieu of termination. She received a $11,768 severance.
The district initially declined access to the records because the investigation into Campbell was not completed. FOX 13 News only obtained the records after Washington County School District considered the balancing test.
“I do think records like this should be public,” McKell said.
“If you eliminate the balancing test, how can you guarantee that records like this will be made public?” asked FOX 13 News investigative reporter Adam Herbets. “I understand your intent, but I don’t think that’s what the bill says.”
“Right,” McKell said. “That’s an open question... Without the balancing test, there’s not a guarantee. I think that’s a good question. I think we need to work on that.”
Replacing the State Records Committee
McKell has been outspoken about how much he appreciates reporting by FOX 13 News, which exposes misconduct at all levels of government.
He stated he would feel more comfortable with judges applying the balancing test than the Utah State Records Committee – a panel of seven volunteers appointed by the governor.
His bill proposes the elimination of the State Records Committee. Instead, the committee would be replaced by an administrative law judge appointed by the governor.
“I strongly believe we need to have folks with true legal training making these decisions,” McKell said. “I feel much more comfortable with a judge looking at that balancing test than I do the (State) Records Committee.”
Nevertheless, the current version of McKell’s bill would also prohibit judges – even the Utah Supreme Court – from using the balancing test.
According to the Salt Lake Tribune, only one case decided by the State Records Committee has been overturned by a judge in the last several years.
McKell said an administrative law judge would be able to hear cases significantly faster than the State Records Committee. Currently, the State Records Committee typically meets once or twice per month to hear cases. It often takes several months for the committee to hear an appeal.
“It’s broken,” McKell said. “We’re not doing a good job right now... Timeliness does matter. Efficiency does matter.”
Appealing cases to the State Records Committee does not cost money. McKell did not say whether it would cost money for requestors to appeal record denials to the administrative law judge.
McKell said he is willing to have “difficult conversations” about how his bill would affect requestors and ultimately impact government transparency. He indicated there may be revisions to the bill.
FOX 13 News will be interviewing affected families over the coming weeks and will provide updates if the bill changes.