See Which Anti-Transparency Bills Did and Didn’t Pass in Utah
Two bills that could impact Inkstick’s public records lawsuits targeting Northrop Grumman and a Utah agency were introduced in the legislative session that just wrapped up.
Hi,
Government transparency always matters, but I’d say this is a season where it really, really matters and is trending sharply downward. With that in mind, I wanted to bring you an update to a story we brought you in February (“Legal Moves, New Lobbyist Point to Northrop Grumman’s Influence in Utah”).
In that piece, we highlighted a bill introduced by a Republican state senator that strongly appeared to be motivated by reporting we’ve done at Inkstick and our two public records lawsuits targeting Utah’s economic development agency and nuclear weapons manufacturer Northrop Grumman, which produces the new intercontinental ballistic missile in facilities across Utah. We cover that missile closely not just because ICBMs can end life on this planet in about 30 minutes but also because of their skyrocketing price tag, now estimated to cost more than $140 billion. Northrop Grumman’s Sentinel ICBM could have been cancelled or modified last year when it notched cost overruns that ran afoul of congressional spending limits. But the company basically faced no consequences, and now the Trump administration is doubling down on nuclear weapons spending, listing so-called “nuclear modernization” as one of 17 priority areas that will be exempted from any potential budget cuts.
The bill that appeared to be motivated by Inkstick’s reporting would have criminalized individuals who “inadvertently” receive a “private, controlled, or protected” record and then “improperly” use it. The circumstances described in the bill closely resemble the situation Inkstick Media’s legal team in Utah faced last year, when a government employee’s court filing unintentionally disclosed to them an unredacted version of the state’s Economic Development Tax Increment Financing agreement to subsidize Northrop Grumman’s new ICBM production in the state. Inkstick’s attorneys alerted the government to the error and sequestered and deleted the document.
We’re happy to report that that bill did not pass. Steve Baron, a First Amendment and media lawyer with Baron Harris Healy, had told me he was skeptical that the bill could stand up to a legal challenge on First Amendment grounds. It raised some obvious questions, like, how long would the government have to alert a recipient that a document had been sent inadvertently and recall it? Who decides what it means to “improperly” use a government record? I asked that question to Keith Grover, the state senator who introduced the bill, and also asked him if he was aware of how the circumstances laid out in the bill closely resembled a situation faced by Inkstick’s legal team. He never replied to me.
A second bill in Utah did pass, and really could hamper public records litigation. That one will make it much harder for legal teams who represent members of the public pro bono — like mine are doing — to recoup attorney fees if they win and a judge rules that the government wrongly withheld public records. The new legislation requires that the prevailing party prove that the government acted in “bad faith” in withholding the records in order to claim attorney fees.
Baron, the First Amendment attorney, told me that the "bad faith" standard is a "high barrier" for collecting fees.
I think this is a time when we need more sunlight, not less. And that legislation tilts the scale in favor of government agencies who would prefer to drag journalists and watchdogs into long court battles rather than release records that, no matter how unflattering, they indeed are supposed to release.
Relatedly, I spent two years chasing down public records in Utah that helped us to expose worker deaths at Northrop Grumman (“Dying to Make Hypersonic Missiles in Utah”). I relied on records from police and the state’s occupational safety and health agency that often took months to get. That’s how we became the first outlet to name the deceased, speak with their families, describe how they were asphyxiated due to a gas leak and report on how the company largely avoided penalties for their deaths. (Read it here: “Utah Quietly Downgrades Northrop Grumman Worker Death Charges.”)
By the time we published that second story, we were already receiving reports of new worker injuries at the company, including allegations that three workers’ feet were crushed by a falling 6,750-pound piece of equipment.
Yikes.