State Records Committee Appeal 03-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

Darren C. Bluemel, Petitioner, vs.

Utah Dept. of Public Safety, Respondent.

Case No. 03-01

DECISION AND ORDER

By this appeal, Darren Bluemel seeks access to his DNA profile maintained by the Department of Public Safety. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on January 8, 2003, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Records that contain "data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data" are classified as private under the Government Records Access and Management Act, Utah Code Ann. Sec. 63-2-101 to -1001. Utah Code Ann. Sec. 63-2-302(1). GRAMA states that "a governmental entity shall disclose a private record to the subject of the record" upon request. See Utah Code Ann. Sec. 63-2-202(1). Finally, "[t]he disclosure of records to which access is governed or limited pursuant to . . . another state statute . . . is governed by the specific provisions of that statute . . . ." Utah Code Ann. Sec. 63-2-201(6). Utah Code Ann. Sec. 53-10-406 states:

(1) The bureau shall:

(a) store all DNA specimens received and other physical evidence obtained from analysis of those specimens;

(b) analyze the specimens to establish the genetic profile of the donor or to otherwise determine the identity of persons or contract with other qualified public or private laboratories to conduct the analysis;

(c) maintain a criminal identification data base containing information derived from DNA analysis; . . . .

(3) (a) In accordance with Subsection 63 2 302(1), all DNA specimens received shall be classified as private.

(b) The Department of Public Safety may not transfer or disclose any DNA specimen, physical evidence, or criminal identification information obtained, stored, or maintained under this section, except under its provisions.

(4) Notwithstanding the provisions of Subsection 63 2 202(1), the department may deny inspection if it determines that there is a reasonable likelihood that the inspection would prejudice a pending criminal investigation. Id. (emphasis added).

2. The Committee heard testimony that the DNA profile sought by Mr. Bluemel was in Public Safety's database, but Public Safety was not able to present any specific evidence that there was a "reasonable likelihood that the inspection would prejudice a pending criminal investigation." The evidence presented to the Committee was more in the nature of a generalized concern that disclosure of a DNA profile might affect the investigation of a crime that has not yet been discovered. Since Public Safety could not present specific evidence that inspection would prejudice a pending criminal investigation, the Committee is persuaded that the statutory exception in Utah Code Ann. Sec. 53-10B406(4) is inapplicable to this case.

ORDER

WHEREFORE, IT IS ORDERED THAT, under the current statutory scheme, Mr. Bluemel is entitled to access his DNA profile. Public Safety must follow the mandates set forth by the Legislature in Utah Code Ann. Sec. 63-2-202(1), since Mr. Bluemel is the subject of the record and the exception in Sec. 53-10B406(4) is inapplicable to this case. The decision of the Department of Public Safety to deny access to the requested information is reversed.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (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. Sec. 63-2-404 (2002). The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.⁽¹⁾

PENALTY NOTICE

Pursuant to Utah Code Ann. Sec. 63-2-403(14), the government entity herein shall comply with the order of the records committee and, if records are ordered to be produced, file:

(i) a notice of compliance with the records committee upon production of the records; or

(ii) a notice of intent to appeal.

If the government entity fails to file a notice of compliance or a notice of intent to appeal, the Records Committee may do either or both of the following: (A) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (B) send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies entities.

Entered this 13th day of January, 2003.

BY THE STATE RECORDS COMMITTEE

Cherie Willis, Chairperson
State Records Committee

FOOTNOTES

1. This notice is required by Utah Code Ann. Sec. 63-2-403(12)(d).