State Records Committee Appeal 05-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NEAL K. OSTLER, Petitioner/Appellant,vs. STATE OF UTAH, DEPARTMENT OF PUBLIC SAFETY, DEPARTMENT OF COMMERCE, DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, DEPARTMENT OF HEALTH, DEPARTMENT OF HUMAN SERVICES, DIVISION HUMAN RESOURCES, ATTORNEY GENERAL'S OFFICE, LABOR COMMISSION, SALT LAKE COMMUNITY COLLEGE, DIVISION OF CONSUMER PROTECTION, and the DIVISION OF OCCUPATION AND PROFESSIONAL LICENSING, Respondents/Appellees.

DECISION AND ORDERCase No. 05-01

By this appeal, Neal K. Ostler seeks access to various documents referencing his name that he believes are in the custody of the agencies of the State of Utah set forth above. By stipulation of the parties, each of his appeals has been consolidated into this case. Assistant Attorney General Chad Steur represented the agencies. Mr. Ostler appeared telephonically and represented himself. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on January 13, 2005, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act ("GRAMA") specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). GRAMA further provides that "[t]he disclosure of records to which access is governed or limited pursuant to court rule . . . is governed by the specific provisions of that . . . . rule . . . ." Utah Code Ann. 63-2-201(6); see also Utah Code Ann. 63-2-201(3)(b) (addressing records to which access is "restricted" pursuant to court rule).

2. Respondents denied all or part of Mr. Ostler's requests, relying on Utah Code Ann. 63-2-201(6)(a) and (3)(b). Mr. Ostler currently has several lawsuits pending against the State of Utah and its agencies. See Ostler vs. Salt Lake City Corporation, et al., Case No. 2:04CV00627 (D. Utah) (filed on August 16, 2004); Ostler vs. State of Utah, et al., Case No. 2:04-CV-0435 (D. Utah) (filed August 26, 2004); Ostler vs. Salt Lake City Corporation, et al., Case No. 040904240 (Third Judicial District Court) (filed on or about March 1, 2004); and Ostler vs. State of Utah, et al., Case No. 2:01CV291 (D. Utah). Respondents herein took the position that access to the requested records was subject to the Rules of Civil Procedure, specifically the requirement under Rule 26(d) of the Federal Rules of Civil Procedure that "a party may not seek discovery from any source before the parties have met and conferred as required by subdivision (f)."

3. Notably, federal district court Magistrate Judge David Nuffer recently denied Plaintiff's Motion to Stay Pending Limited Discovery under Rule 56(f). Mr. Ostler did not contest the fact that his motion concerns the same subject matter as his government records requests. See Order Denying Plaintiff's Motion to Stay, Case No. 2:04-CV-627TS (D. Utah, Dec. 17, 2004). Thus, the posture of at least one of the court cases referenced above is that Mr. Ostler has been ordered by the Court to respond to Defendants' Motion to Dismiss before any discovery may take place.

4. As we held in Steed v. Duchesne County, Case No. 04-17, "the right to access public government records is not lost, and may not be impaired, when a citizen files a lawsuit against the government entity that maintains those records." GRAMA recognizes, however, that a court may impose limitations on access to records during the course of litigation. Thus, "where a court order is in place regarding the specific documents requested[,] the terms of that court order shall govern disclosure." Id. (citing Utah Code Ann. 63-2-202(7) and -207). We interpret the referenced order to prohibit the release of the records sought by Mr. Ostler at this time. See Fed. R. Civ. P. 26(d).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal is denied. Mr. Ostler's records requests concern access to the same subject matter that the federal district court has denied him in Ostler v. Salt Lake City Corp. et al., Case No. 2:04-CV-627 (D. Utah 2004).

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 Utah Code Ann. 63-2-404. 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.

Entered this 19th day of January, 2005.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chairperson
State Records Committee