State Records Committee Appeal Decision 2009-17

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAMELA BRADY AGENT FOR INTERMOUNTAIN CLAIMS INC, Petitioner, vs.

UTAH DEPARTMENT OF PUBLIC SAFETY/UTAH HIGHWAY PATROL, Respondent.

DECISION AND ORDER

Case No. 09-17

By this appeal, Petitioner, Pamela Brady, Agent for Intermountain Claims Inc., (“Petitioner”), seeks access to an accident report for an auto accident which occurred on May 14, 2009.

FACTS

On or about June 11, 2009, Ms. Brady submitted a request for records in Case Nos. 09UT1196 and 09UT1197 to Respondent, Utah Department of Public Safety/Utah Highway Patrol (“DPS”). DPS responded to the request by providing an Accident Report (DI-9) for Case No. 09UT1196, but denied access to the accident report in Case No. 09UT1197. DPS claimed that pursuant to Utah Code Ann. § 63G-2-202(4), Petitioner was not entitled to access to the “protected” record. Ms. Brady appealed this denial to Lance Davenport, Commissioner for DPS, who denied access for the same reasons. Ms. Brady then appealed Commissioner Davenport’s denial to the Utah State Records Committee (“Committee”).

Ms. Brady was not present at the time set for the hearing of this matter and did not file a written request for a continuance or cancellation of the hearing pursuant to Utah Admin. Code R. 35-1-2(13). Counsel for DPS indicated that a copy of the requested accident report had recently been mailed to Ms. Brady, but did not know whether Petitioner had actually received the report. Accordingly, inasmuch as Petitioner did not request a continuance or a cancellation of the hearing, and there was no indication whether the Petitioner was satisfied the response was complete; the Committee proceeded with the hearing. After having reviewed the written arguments submitted by the parties and hearing oral argument from DPS on October 8, 2009, the Committee now issues the following Decision and Order.

STATEMENT OF REASONSE 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, -304 and –305.

2. Accident reports, except as provided in Utah Code Ann. §§ 41-6a-404, 41-12a-202, and 73-18-13 are protected records. Utah Code Ann. § 63G-2-305(38).

3. Subject to the provisions listed in Utah Code Ann. § 41-6a-404, the department or other responsible law enforcement agency employing the peace officer that investigated the accident shall disclose an accident report to an agent of a person involved in the accident or suffering loss or injury in the accident. Utah Code Ann. § 41-6a-404(3). An “agent” includes a person’s insurer. Utah Code Ann. § 41-6a-404(1)(a)(ii).

4. At the hearing, counsel for DPS indicated that the denial of Ms Brady’s request was the result of miscommunication within DPS. Initially, it was believed that the two accidents were separate cases and entirely unrelated. Further, DPS believed that Petitioner would not be entitled to the first accident report given the understanding that the two cases were unrelated. However, prior to the hearing, counsel for DPS reviewed Ms. Brady’s request again and contacted the investigating Trooper to clarify the issues. The Trooper indicated that although two case numbers were used, both accidents were connected to each other with the first accident possibly being the cause of the second accident. Based upon this clarification, it was determined by DPS that Ms. Brady was entitled to access pursuant to Utah Code Ann. § 63G-2-202 and § 41-6a-404 and therefore, the accident report was provided to Petitioner. Counsel for DPS further indicated that policies and practices at DPS are being reviewed to assure full compliance with the law in the future.

5. Based upon the testimony presented by counsel for DPS, the Committee is convinced that all public records responsive to Petitioner’s request have now been released to the Petitioner.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Pamela Brady, Agent for Intermountain Claims Inc., is denied because all records responsive to Petitioner’s request have been provided to Petitioner.

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 governmental 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 Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental 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.

Dated this 15th day of October 2009.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee