Records Committee Denies Request to Make UDOT Texts Public 

On Dec. 9, the state records committee denied Salt Lake Tribune reporter Robert Gehrke’s request to make public the text messages sent between contractor Guy Wadsworth and a female Utah Department of Transportation employee. Wadsworth, whose Provo River Construction was scrutinized in late summer prior to the 2010 election for its inclusion in the $1.1 billion contract to rebuild Interstate 15 in Utah County, admitted in September to having an “improper” relationship with the UDOT employee. Whatever “improper” meant will remain private (though it is understood a romantic relationship was involved) as the committee decided the messages were sent in a private capacity and, therefore, were not public record.

“We got spanked pretty hard,” Gehrke says of the decision, which ruled 6 to 1 against disclosure of the text messages. While Gehrke acknowledges disclosure of the texts may have been a long shot since the communications were of a private nature, he stands by the request, since it ensured that at least the committee would independently verify that the records did not involve public business, as UDOT has claimed. “My argument was that these weren’t sent in a private capacity, because she had violated [UDOT’s] conflict-of-interest policies by having a relationship with Mr. Wadsworth,” Gehrke says, adding “the conflict-of-interest policy was meant to keep private affairs from affecting the public.”

Wadsworth’s extramarital affair would not have caused such a stir if it hadn’t been the latest bombshell to hit UDOT and state government, exploding within the craters of other bombshells dropped during the election. It had also been revealed that Wadsworth’s company held private meetings with Utah Gov. Gary Herbert before the winning bidder was announced, with the meetings occurring at roughly the same time the company donated $50,000 to his election campaign. One of the losing companies in the bid, Flatiron/Skanska/Zachry, subsequently received a $13 million settlement from UDOT. When news broke about Wadworth’s affair, the construction-company founder contended in a statement that the tryst had no bearing on the bid process.

Still, Gehrke argued before the committee that the communications of a public employee to the state’s largest contractor—who is heavily mired in taxpayer-funded projects—have public relevance when they’re part of a relationship that violates the state agency’s conflict-of-interest policies, especially when the employee working for UDOT was subject to discipline proceedings because of the relationship. Many standards of state records law allow for the public disclosure of discipline records.

Mark Burns, representing UDOT at the hearing, contended that the texts were not records and that state law did not necessarily allow for the public disclosure of all materials compiled in state agencies’ disciplinary actions. “We’re talking about a clear and unwarranted invasion of personal privacy here,” Burns told the committee. “This section [of state records law] says that it’s not always public and that it in fact can be restricted when it comes to disciplinary actions.”

Ultimately, the committee agreed with Burns, contending that even if UDOT used the texts in its deliberations, that didn’t make them records, especially if they are of a private nature. “I don’t think they’re records,” said committee member Scott Daniels.

“I don’t think they can be bootstrapped into [being] a record later by using it in a disciplinary proceeding.” Committee member Patricia Smith-Mansfield was the only dissenting vote in that she believed UDOT made it a record by using it for discipline, but agreed that the text messages should not be disclosed, isince they were purely personal.

Gehrke’s arguments that a public official in violation of state policies does not have the same privacy standards of a regular citizen is intriguing to local media experts.

“We’ve already acknowledged a relationship happened, so getting into details doesn’t really serve a purpose other than titillating the public or embarrassing these individuals,” Salt Lake City media attorney Jeff Hunt says. Still, he says, that doesn’t mean one should implicitly trust UDOT’s claims that they were private.

“UDOT would say these are purely personal [texts] relating to a relationship between these two, so it cannot bear on the public interest,” Hunt says. “But the other argument is that we shouldn’t have to take your word on it.” Gehrke says that, salacious or not, had the texts been disclosed, the paper would not have published them if they weren’t relevant to the public’s business. By having the texts reviewed in private by the independent records committee, Gehrke could at least count on an impartial evaluation of whether or not they were truly private communications. “The reason we went to the committee is we didn’t feel like we should rely on the representations of UDOT to tell us that ‘you don’t need to see this,’” Gehrke says. “You can trust them to a point, but you’ve got to verify.”