State Records Committee Appeal 2008-12

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN OBERBECK/SALT LAKE TRIBUNE, Petitioner, vs.

UTAH PUBLIC SERVICE COMMISSION, Respondent.

DECISION AND ORDER

Case No. 08-12

By this appeal, Steven Oberbeck, a reporter with the Salt Lake Tribune, seeks access to records of the Utah Public Service Commission (“PSC”). Mr. Oberbeck requested the names and addresses of persons who filed formal complaints with the PSC against Questar Gas in March, 2008, regarding malfunctioning transponders.

FACTS

On March 26, 2008, Mr. Oberbeck made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). PSC provided copies of the complaints responsive to Mr. Oberbeck’s request. However, PSC also redacted all information concerning the names, addresses, and phone numbers of individuals on the complaints pursuant to Utah Code Ann. § 63G-2-302(2). PSC claimed that the release of this information would be a clear, unwarranted invasion of privacy.

Mr. Oberbeck appealed the partial denial and/or redaction of the names and addresses of the complainants to Julie Orchard, Commission Secretary with PSC, arguing that the information was “clearly public in nature” similar to the identities of parties in civil and criminal lawsuits. On April 22, 2008, Ms. Orchard denied Mr. Oberbeck’s request to the extent that it asked for the addresses, and phone numbers of the complainants. However, PSC, on its own initiative, contacted each of the individuals and inquired as to whether they would waive their privacy right or wish their information to remain “private.” PSC then provided Mr. Oberbeck with the un-redacted records for those individuals who waived their privacy rights.

Mr. Oberbeck now appeals to the State Records Committee (“Committee”) seeking the remaining addresses, and phone numbers of customers of Questar Gas who filed formal complaints with the PSC in March 2008, regarding malfunctioning equipment leading to under reporting of gas usage. The Committee, after having reviewed the materials submitted by the parties, and hearing oral argument and testimony on July 10, 2008, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). The Committee finds that the requested records are considered “public” pursuant to Utah Code Ann. § 63G-2-201(2).

2. Records that are designated “private,” “protected,” or “controlled” under GRAMA are not public records” pursuant to Utah Code Ann. § 63G-2-103(21). PSC argued that the records are “private” pursuant to Utah Code Ann. § 63G-2-302(2). The Committee, having heard argument from both parties, finds the records in Mr. Oberbeck’s request pertaining to the addresses and phone numbers of complainants should be released because PSC did not persuasively argue that the disputed information in the public records should be designated “private,” “protected,” or “controlled.”

3. At oral argument PSC also asserted that the Utah State Legislature’s silence on the issue of personal addresses and phone numbers shows legislative intent to keep this information private. However, the Legislature has delineated how this information may not be disclosed under certain circumstances. For example, Utah Code Ann. § 63G-2-302(1)(f) designates a current or former governmental employee’s home address and home telephone number as “private.” Also, Utah Code Ann. § 63G-2-305(51) states that an individual’s home address and telephone numbers may be “protected” if the governmental entity requires the individual “to provide the information in order to comply with a law, ordinance, rule, or order of a government entity.” Testimony during the hearing showed that the information provided by the non-governmental individuals was voluntary. Therefore neither Utah Code Ann. § 63G-2-302(1)(f) or § 63G-2-305 apply to the present case.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Steven Oberbeck is granted and the decision by PSC to withhold “unredacted copies of all formal complaints filed during the month of March, 2008, against Questar Gas concerning company transponders that were underreporting natural gas usage by its consumers” is reversed. PSC is hereby directed to within ten (10) days of receipt of this Order, identify and produce said records to Mr. Oberbeck.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to a 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. § 63G-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. § 63G-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: (1) a notice of compliance with the Records Committee upon production of the records; or (2) 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: (1) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) 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 17th day of July 2008.

BY THE STATE RECORDS COMMITTEE

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SCOTT WHITTAKER, Chairperson
State Records Committee