In February, Keith Grover, a Republican state senator in Utah, introduced a bill to modify a portion of the state’s public records law that deals with commercial and non-individual financial information in curious ways. The amendments to the Government Records Access and Management Act, or GRAMA, would criminalize individuals should they “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 intercontinental ballistic missile production (ICBM) in the state. Inkstick’s attorneys alerted the government to the error and sequestered and deleted the document.
An attorney representing the government agency Inkstick is suing told a judge in August that Inkstick’s legal team resolved the inadvertent disclosure in an “appropriate” way. Nonetheless, Northrop Grumman’s attorney suggested the document would not be secure in the possession of Inkstick’s attorneys if a judge later granted them temporary access to it. Both the weapons manufacturer and the government agency it contracted with for state subsidies opposed Inkstick’s lawyers being granted “attorney’s eyes only,” or AEO, access to the contract, a legal mechanism that allows attorneys to view disputed records so that a judge can hear arguments from both sides as to whether a given record should be withheld from the public or not.
Northrop Grumman’s attorney, Mark Wagner, suggested that granting AEO could mean the record ended up in the public realm.
“My client is very concerned about possession of this information by anyone — short of an ultimate court order — because… I’m not suggesting that counsel for Inkstick would improperly disclose it to the public or to its client, but even the existence of the document electronically or through notes or sitting in an office that where it could be inadvertently disclosed through a personnel issue, a procedural issue, a process issue, within and even on the computer systems — I don’t have any clue what kinds of security measures, how robust they are, that Inkstick counsel’s firm employs. I can tell you that Northrop Grumman’s systems are incredibly secure. And… without knowledge of what these other systems are, it perceives a big risk to its business of having this information exist someplace [that] it doesn’t have control over.”
Judge Laura Scott ruled partially in favor of Inkstick, ordering the government to hand over a more significantly unredacted version of the contract to Inkstick’s attorneys.
*
The vague language in state Senator Grover’s bill raises questions about how the government would define what constitutes “improperly” using a record obtained “inadvertently,” such as whether that would criminalize a journalist copied on an email containing a record that the government did not intend to release who then went on to publish that record.
Grover did not respond to requests for comment from Inkstick about what led him to introduce the bill and whether he was familiar with how the inadvertent disclosure described in the amendments resembled Inkstick’s own circumstances.
Steve Baron, a First Amendment and media lawyer with Baron Harris Healy, was skeptical that the bill could stand up to a legal challenge on First Amendment grounds.
He said that the proposed amendments appeared to have “induced ambiguity” — for example, around what “improperly” using a record meant. He also said the bill had “temporal vagueness” around how long the government would have to alert a recipient that a document had been sent inadvertently and whether that could happen even after a journalist had already received and published about a document.
“I think that this statute, at least for these proposed amendments as drafted, are subject to constitutional challenge under the First Amendment,” Baron said.
Baron told Inkstick that in two landmark Supreme Court cases, Fla. Star v. B. J. F. and Bartnicki v. Vopper, the court sided with members of the media over plaintiffs who objected to the publication of sensitive material that had been obtained either inadvertently through government records or a phone wiretap provided anonymously to the media. In the case regarding the wiretap, the Supreme Court wrote that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.”
Baron also called a provision in the Utah GRAMA bill that requires someone who receives a government record improperly to “immediately destroy or return all copies” of it a “fairly draconian” measure, particularly in a section of public records law relating to trade secrets and non-individual financial information.
“It’s got a commercial value, but that’s not the same as, you know, the nuclear codes,” Baron said.
*
The GRAMA maneuver is one of several that points to how Northrop Grumman, one of the world’s top two largest nuclear weapons manufacturers, may exert influence in local public affairs in Utah.
In January, the defense contractor rehired a lobbyist in the state, according to financial disclosures posted to lobbyist.utah.gov. The lobbyist, Ginger Chinn, was formerly a managing director of the Governor’s Office of Economic Opportunity, which is the agency that Inkstick has two public records lawsuits against for documents on subsidies to Northrop Grumman.
GOEO is offering Northrop Grumman at least $59 million in state subsidies to manufacture the controversial new Sentinel ICBM in Utah. Chinn was also formerly employed by the Utah Inland Port Authority which, like GOEO, has offered Northrop Grumman subsidies in the form of property tax rebates. Chinn was previously registered as a lobbyist for Northrop Grumman in 2021, the same year she was employed at UIPA, according to her LinkedIn.
*
A few months before Chinn’s rehiring, Utah’s Republican governor, Spencer Cox, made an appointment that raised a few eyebrows among local politics-watchers.
Amid tumult at the State Records Committee — an administrative body that reviews public records requests that the government has denied in full or in part — the Republican governor nominated a senior employee at Northrop Grumman in Magna to serve on the board. Jeffrey Marshall, an engineer, began serving on the committee in December.
Inkstick’s legal team appeared before the State Records Committee (SRC) in 2023, arguing that the government should release a full, unredacted version of GOEO’s contract to subsidize Northrop Grumman’s ICBM production in the state. The government and Northrop Grumman have insisted on redacting a page that is the heart of the deal — a table that details how many jobs and at what salary Northrop Grumman needs to create in order to receive state subsidies — calling the information a trade secret and Northrop Grumman’s “secret sauce” to getting missile contracts from the US military.
A government attorney argued to the SRC that releasing the contract could benefit America’s adversaries (“Competitors look at [this type of public record]. Not only business competitors but Russia and China are probably watching very closely what Northrop Grumman is doing. I guarantee they are. … So it’s not just a national concern or a state concern, but internationally this is a concern.”). After that warning, the committee retreated to view the record behind closed doors and then voted unanimously against Inkstick.
At the time, one SRC member, however, did express misgivings. “I think it should be on the record that we couldn’t figure out why some of the redactions were redacted,” Marie Cornwall said.
In response to Marshall’s appointment to the committee, Rebekkah Shaw, the executive director of the State Records Committee, told Inkstick by email that the SRC follows Robert’s Rules of Order. She said that if public records disputes involving an SRC member’s employer come up, then the member would “disclos[e] the potential conflict and either recus[e] or as[k] the parties if they want them to recuse themselves for the hearing.”
