State Records Committee Appeal 95-10

KIM and NANCY JULIAN, KEVIN JULIAN, by and through his parents, Kim and Nancy Julian, PHILIP and PAM ROUNDY and SPENCER ROUNDY, by and through his parents, Philip and Pam Roundy, Petitioners, v.

UNIVERSITY OF UTAH MEDICAL CENTER and INTERMOUNTAIN TISSUE CENTER, Respondents

DECISION AND ORDER, Case No. 95-10

Petitioners by Notice of Appeal to this Board under date of October 18, 1995, and amended on October 27, 1995, seek a reversal of Respondents' denial of requests made pursuant to the Government Records Access and Management Act Utah Code Ann 63-2-101 et seq. (1991 as amended). Petitioners divide their appeal into eleven areas where, according to Petitioners, Respondents have denied access to records.

Petitioners were represented by Douglas B. Cannon, Esquire, of Fabian & Clendenin, and Respondents were represented by Terence L. Rooney, Esquire, of Snow, Christensen & Martineau. The State Records Committee, having reviewed the written materials submitted by the parties, having heard argument and having participated in asking questions and receiving answers regarding the questions posed to counsel, now issues the following decision and order.

DISCUSSION, DECISION AND ORDER

Because of the numerous requests made, the Committee will discuss each request and denial separately. The appeal is granted in part and is denied in part as indicated in the following:

Request No. 1: Policies relating to the production of documents pursuant to GRAMA.

The records sought under this request are general policies regarding how the Respondents deal with disclosure of documents requested under GRAMA and do not constitute the request of records on individuals. These records are not controlled records as argued by Respondents pursuant to Utah Code Ann. 63-2-303 (1992) in that this section requires that the data or record be on individuals. Seeing that these records do not fall under any protective provision of the Act, Respondents are ordered to make all policies sought under this request available to Petitioners.

Request No. 2: The treatment and care provided for Spencer Roundy and Kevin Julian both before and after the outbreak of Ochrobactrum Anthropi Meningitis.

Pursuant to stipulation by both counsel, Respondents have complied with this request. Therefore no action of the Committee is required.

Request No. 3: The receipt, processing, handling, storage and distribution of the pericardial implants which were used in Spencer Roundy and Kevin Julian

Request No. 4: The processing of all pericardial tissues by the Intermountain Tissue Center between the dates of April 29, 1994 and November 16, 1994.

The arguments raised by Respondents to the two above requests is the same and the decision of the Committee is the same for both. Respondents argue that these records are "controlled" records, that the requests are overly broad, and that GRAMA should not be utilized to further impending litigation.

The Committee determines that the information so sought does not fall under the classification of controlled records in that Utah Code Ann. 63-2-303 (1992) requires that the medical, psychiatric, or psychological data be on individuals. The information so sought, according to counsel, does not constitute information on individuals and therefore is not protected by that provision.

The Committee further finds that the requests are specific enough to constitute understandable requests and are not overly broad. Further, the Committee finds that if records are disclosable under GRAMA, the existence of litigation or impending litigation is not relevant to its determination of whether the records should be released.

The Committee therefore reverses the decision of Respondents and orders that the information requested under Requests 3 & 4 be provided to Petitioners except to the extent that the information contains private data or other information that is excluded by GRAMA.

Request No. 5: Any investigation done by the Intermountain Tissue Center, University of Utah Medical Center, Center for Disease Control, Food and Drug Administration or any other entity relating to the outbreak of Ochrobactrum Anthropi Meningitis at the VA Hospital and PCMC during September 1994 through the present.

Request No. 6: The source and cause of the Ochrobactrum Anthropi Meningitis contracted by Kevin Julian, Spencer Roundy and others, including any test results confirming bacteria found in the Hank's Balanced Salt Solution or other solutions used to prepare the pericardial tissue.

Request No. 11: Communications with Life Technologies or others concerning the cause of the Ochrobactrum Anthropi Meningitis in Kevin Julian, Spencer Roundy and others.

These requests pose the greatest difficulty for the Committee. Counsel for both parties argued vigorously regarding their respective positions. This Committee, in being asked to determine whether records should be released, does so with the understanding that other statutory provisions might restrict access and supersede GRAMA under the provisions of Utah Code Ann. 63-2-201(3)(b).

The Committee acknowledges that the Courts have been struggling in this area. Both Parties have agreed that Benson v. I.H.C. Hospitals, Inc., 866 P.2d 537 (Utah 1993), is the current law in Utah relative to release of the records sought under the three requests stated above. The Committee denied a request to review material in camera and as such the Committee is not in a position to determine the status of all information sought under these requests.

The Committee finds that the requests are not overly broad and that to the extent Benson allows, the information should be released and not be protected. Therefore, for requests 5, 6, and 11, Respondents are ordered to review all documents sought under these requests and segregate and disclose those documents not protected under Benson, in that those not protected do not fall under any protection from disclosure under GRAMA.

Request No. 7: Any protocols, regulations, or rules that the Intermountain Tissue Center has for dealing with tissue implants, including, but not limited to, protocols, regulations or rules that the Intermountain Tissue Center has for Hank's Balanced Salt Solution and pericardial tissue implants.

The Committee determines that the protocols, regulations and rules sought under this request are not controlled records in that they do not pertain to individuals as is required under Utah Code Ann. 63-2-303. There being no other protection under which they should be precluded from the public, Respondents are ordered to make all such documents requested under Request 7 available to Petitioners.

Request No. 8: The formation, existence and function of the Intermountain Tissue Center, including any charters, articles, bylaws. etc.

The parties have informed the Committee that Respondents have complied with this request. As such, the Committee will take no action on this request.

Request No. 9: The relationship between the Intermountain Tissue Center and the University of Utah Medical Center.

The Committee is of the opinion that this request is overly broad and not specific enough to identify the type of record sought. As such, the denial of providing records under this request is sustained.

Request No. 10: The relationship, including contracts, between Life Technologies, Inc. and the University of Utah Medical Center and/or Intermountain Tissue Center.

Respondents maintain that under Utah Code Ann. 63-2- 301(2)(d) contracts between the parties may be exempt from disclosure. Under Utah Code Ann. 63-2-304(5) even proposals may be viewed after bidding has closed. Respondents have presented no legal basis upon which to exclude existing contracts from being disclosed. As such, the Committee orders that Respondents release and make available any contracts or vendor records it has between the Respondents and Life Technologies, Inc.

ORDER

The Order of the Committee is found above in the prior discussion and is adopted in this provision to be consistent with that which is stated there. To the extent the Committee has overturned the denial of Respondents, Respondents are ordered to comply with the directives of the Committee as expressed under the discussion of each of the Requests referred to.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to district Court. The petition for review must be filed no later than 30 days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 (Supp. 1995) and 63-2-502(7) (Supp. 1995). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advice from an attorney.

Entered this 28th day of November, 1995.

MAX J. EVANS,
Chair, State Records Committee