Failure to hand over certain logs that track the wanderings of school computer users on the world wide web–including records showing attempts to visit sexually oriented or other banned sites–could result in a criminal investigation by a county district attorney in Utah. The target of the probe: the Utah Education Network (UEN), a public/private consortium that provides internet service to Utah’s K-12 schools districts.

In April, Michael Sims, an anti-censorship internet activist, filed for access to the school computer logs under Utah’s sunshine law. He wanted to check what web sites were being blocked by internet content filters used by Utah schools.

At first, UEN officials refused Sims’ request, claiming they didn’t own the logs. They said those records belonged to the individual school districts. Sims appealed that denial to the State Records Committee. At a hearing last month, the committee agreed with Sims and ordered that the computer logs, purged of any confidential material, be released.

UEN had 30 days to appeal the committee’s ruling. Instead, it gave Sims data from the previous six weeks–when school was not in session.

When Sims demanded data that showed student activity from the school year, UEN claimed those data had been overwritten in a routine backup procedure. The backup is set to overwrite older records with new data each month. This is to conserve space in computer memory, according to UEN Director Stephen Hess.

Sims, who has been wrangling with Hess for months, doesn’t buy it. “It’s not a bureaucratic snafu when Stephen Hess takes a plain order saying, ‘Provide these records to the public’ and purposefully destroys them to prevent access,” Sims said. “That’s criminal.”

Utah’s Government Records Access and Management Act provides for misdemeanor penalties for intentionally blocking access to public records, but no one has ever been prosecuted for it. Hess insists the network has nothing to hide and is willing to give the logs to Sims from now on.

“We don’t keep them, and we are not required under law to make special disk transfers to keep them longer,” Hess said.

The GRAMA clause

In fact, the backup procedure might have violated the state’s Government Records Access and Management Act (GRAMA). GRAMA makes it illegal for an agency to block access to information. It’s also an offense to destroy materials pending an appeal. But to date, no one’s ever been prosecuted for it.

The state Records Committee, according to Jannette Goodall, the committee’s executive secretary, is preparing a letter to the district attorney’s office explaining how the UEN violated GRAMA.

“If [UEN] deleted something after the order, it’s not [due to] a hole in GRAMA,” said the committee’s attorney, Ralph Finlayson. “It’s a violation of the [committee’s] order. It was incumbent on [the UEN] to stop the deletion.”

But Hess maintains that his agency did its best to comply with GRAMA and satisfy Sims. “There was no foot dragging on our part to get the data to him,” Hess said.

Sims and GRAMA knew at the time of the June 24 hearing that UEN deleted its files every 30 days but did not request a change in that policy, Hess said. He conceded he did not release the data after the directive to do so, but waited another 25 days until he had gotten written permission from school superintendents.

“I work for them,” Hess said. “They’re my bosses.”

Hess charged that the criminal investigation was an attempt by GRAMA to sharpen its public image. Earlier in the summer, he said, the committee’s unwillingness to enforce its laws caused committee member Will Fehr to remark, “We’re a toothless tiger.”

“[GRAMA] decided to make an example of us,” Hess said. He called the prospect of criminal charges “astonishing,” adding, “We were not [being] fairly dealt with . . . by GRAMA.”

GRAMA spokeswoman Goodall said the law was passed to protect the public’s right to gain access to government information in a reasonable amount of time and to help guide agencies in determining classification for records.

Furthermore, said Goodall, the committee discovered that the UEN had failed to file a legally required “records retention schedule.” This document describes the records a public agency is holding and outlines a policy for routine purging, if necessary. It’s required to help the committee determine what information should be considered public and therefore subject to the GRAMA laws, Goodall said.

She said that the UEN apparently was not aware of the schedule requirement. Because UEN is a small agency located on the campus of the University of Utah, Goodall said, the network escaped the committee’s notice. “It’s hard to tell they’re even out there, let alone that they haven’t had any contact with us,” she said.

But ignorance of the law doesn’t let the UEN off the hook. The investigation will most likely first be turned over the University of Utah police, said Salt Lake County Deputy District Attorney Walter Ellett. The UEN is in the jurisdiction of the university, whose investigation will guide county prosecutors.

“When we get the report, we’ll decide what to do,” Ellett told the Salt Lake City Tribune.

Sims belongs to Censorware Project, a grassroots organization that opposes internet filtering and blocking software. He says he is hoping that UEN kept backup files of the data.

“I don’t know of any network system that doesn’t make tape backups,” Sims said. “It would take incredible incompetence from the [UEN’s] technical staff.”

Said Hess: “There are no backup tapes.”

Utah Education Network
http://www.uen.org

The Salt Lake Tribune
http://www.sltrib.com/

The Censorware Project
http://www.censorware.org