State Records Committee Appeal 07-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RUSS RIZZO AND THE SALT LAKE TRIBUNE, Petitioner, vs.

CITY OF WEST JORDAN, Respondent.

DECISION AND ORDER

Case No. 07-14

By this appeal, Russ Rizzo and the Salt Lake Tribune, seek that the State Records Committee overturn the denial for records request from City of West Jordan and compel the City of West Jordan to comply fully with the original GRAMA request. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on August 9, 2007, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

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). Records that are not public are designated as either "private," "protected," or "controlled." See Utah Code Ann. 63-2-302, -303 and -304. The City of West Jordan has prepared a database responsive to Mr. Rizzo's request, and has informed Mr. Rizzo that the City has assessed the actual cost of creating, compiling, and or manipulating the records to be $527.84. Mr. Rizzo has contested that amount as unreasonable. The City of West Jordan has redacted some address information from the database, on the basis that some of the records are classified as "private" pursuant to Utah Code Annotated 63-2-302(2)(d). The City of West Jordan has redacted some address information from the database regarding juvenile perpetrators, on the basis that these records are classified as "protected" pursuant to Utah Code Annotated 63-2-304(10). The City of West Jordan has also redacted some information from the database on the grounds that it is "individually identifiable health information" as defined by 45 C.F.R., Part 164, and therefore not releasable under GRAMA pursuant to Utah Code Ann. 63-2-107.

The Committee is persuaded that the City is not required to provide the information in any other form than what it normally keeps, and if the City chooses to fulfill a request to provide the information in a format not normally maintained, the fees charged to create that format will be upheld.

The Committee is persuaded that the City properly classified the information withheld as "private" pursuant to Utah Code Annotated 63-2-302(2)(d) and "protected" pursuant to Utah Code Ann. 62-2-304(10). However, the Committee finds that with regard to the private and protected information, the Committee is persuaded that in this particular instance the public interest favoring access outweighs the interest favoring restriction of access pursuant to Utah Code Ann. 63-2-403(11)(b), and therefore, the information shall be released.

The Committee is persuaded that it should uphold the classification of the information withheld as exempt from GRAMA. That information includes medical calls with an EMT response that would show personally identifiable health information including demographic health information as defined by HIPAA.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Russ Rizzo and the Salt Lake Tribune is granted in part. The City shall release the information previously withheld as "private" pursuant to Utah Code Ann. 63-2-303(2)(d) and "protected" pursuant to Utah Code Ann. 63-2-304(10). The Committee finds that in this particular instance, the interests favoring release outweigh the interests favoring restriction of access pursuant to Utah Code Ann 63-2-403(11)(b). The Committee does not order the release of the information that was withheld because it contained individually identifiable health information as defined by 45 C.F.R., Part 164. The Committee denies the request for a fee waiver because the City may charge the actual costs to compile a record in a form other than that normally maintained by the City pursuant to Utah Code Ann 63-2-203(2)(a).

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.

PENALTY NOTICE

Pursuant to Utah Code Ann. 63-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file (i) a notice of compliance with the State 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 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 15th day of August, 2007.

BY THE STATE RECORDS COMMITTEE

CARL ALBRECHT, Chairperson
State Records Committee