State Records Committee Appeal Decision 2009-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COREY VONBERG, Petitioner, vs.

UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.

DECISION AND ORDER

Case No. 09-06

By this appeal, Petitioner Corey Vonberg (“Vonberg”) seeks access from the Utah Department of Public Safety (“Department”) to records pertaining to an individual.

FACTS

On or about February 23, 2009, Vonberg requested records pertaining to an individual from the Utah Highway Patrol Office located in Cedar City, Utah, pursuant to the Government Records Access and Management Act. Vonberg requested: (1) incident reports; (2) field identification cards; (3) arrest records; (4) criminal records; or (5) alias records regarding the officer.

In a letter dated March 9, 2009, Richard Townsend, Deputy Commissioner for the Department, acting in his capacity as records officer for the Department, denied Vonberg’s GRAMA request stating that “[t]he records requested are deemed ‘private’ records and are only accessible to the subject of the record; the parent or legal guardian of the subject of the record; or someone with a power of attorney or notarized release form.” Vonberg appealed Townsend’s initial denial of his records request by letter dated March 15, 2009. Townsend, acting in his capacity as the Chief Administrative Officer of the Department, denied Vonberg’s appeal by letter dated March 18, 2009.

Vonberg now appeals the Department’s denial of his records request to the State Records Committee (“Committee”). At the hearing, the two issues argued by the parties were: (1) Whether the Department has a duty to disclose criminal history records held by the Utah Bureau of Criminal Identification (“BCI”); and (2) Whether the Department has in its possession records responsive to Vonberg’s GRAMA request. Having reviewed the materials submitted by the parties and having heard oral argument and testimony on June 11, 2009, the Committee 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. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303 and -304.

2. A record to which access is restricted pursuant to another state statute is not a public record. Utah Code Ann. § 63G-2-201(3)(b).

3. Access to and dissemination of information from a criminal history record or warrant of arrest information from BCI is restricted, pursuant to Utah Code Ann. § 53-10-108, limiting access to such records to entities and/or agencies identified in the statute and subjects of the record.

4. Based upon Townsend’s testimony and pursuant to Utah Code Ann. §§ 53-10-108 and 63G-2-201(3)(b), the Committee finds that the Department properly classified records held by BCI containing criminal history and information as non-public records and, therefore, not subject to Vonberg’s GRAMA request.

5. In response to a GRAMA request, a governmental entity is not required to create a record or provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code Ann. § 63G-2-201(8)(a)(i) & (iii).

6. During the hearing, Townsend testified that no records were found responsive to Vonberg’s request after conducting an exhaustive search of Department records other than records maintained by BCI. Townsend noted that records responsive to Vonberg’s request may be held by local governmental agencies that are not under the control or supervision of the Department.

7. Based upon testimony from Townsend, the Committee is convinced that the Department has conducted a proper and thorough search of its records and properly determined that other than records maintained by BCI, the Department possesses no records responsive to Vonberg’s request.

ORDER

THEREFORE, IT IS ORDERED THAT: (1) The determination of the Department of Public Safety as to the classification of criminal history records in the possession of BCI pursuant to Utah Code Ann. § 53-10-108 and 63G-2-201(3)(b) as non-public records is upheld; (2) The Department’s determination that it possesses no other records responsive to Corey Vonberg’s request is also upheld; and accordingly, (3) Corey Vonberg’s appeal is denied.

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. § 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 18th day of June, 2009.

BY THE STATE RECORDS COMMITTEE

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SCOTT WHITTAKER, Chairperson
State Records Committee