State Records Committee Appeal Decision

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DANIEL KNEISLEY, Petitioner, vs.

DEPARTMENT OF PUBLIC SAFETY, Respondent.

DECISION AND ORDER

Case No. 09-18

By this appeal, Petitioner, Daniel Kneisley (“Kneisley”), seeks records pertaining to a private investigator, Kim Thomas Collins.

FACTS

On or about June 29, 2009, Mr. Kneisley submitted a request to the Department of Public Safety (“DPS”) for “any and all records of the Bureau of Criminal Identification (“BCI”) pertaining to private investigator Kim Thomas Collins (“Collins”), specifically, but not limited to, all records pertaining to any bonds and bonding companies.” DPS responded to Mr. Kneisley’s request and provided all records in its possession related to Mr. Collins’ bond information. Mr. Kneisley made a subsequent request dated July 30, 2009 this time requesting “the entire file of private investigator Kim Thomas Collins.”

Lauralee Blue, on behalf of DPS, responded to Mr. Kneisley by letter dated August 3, 2009, wherein she denied Mr. Kneisley’s request indicating that information supplied by and contained in an application for a private investigators license is “protected” pursuant to Utah Code Ann. § 63G-2-302(2)(d). Ms. Blue further denied Mr. Kneisley’s request because information gathered in the course of investigating an applicant/application is “protected” pursuant to § -305(9).

Mr. Kneisley appealed this denial to Commissioner Lance Davenport with a subsequent clarification that he was specifically seeking “bond information” related to Mr. Collins. On August 26, 2009, Commissioner Davenport denied Mr. Kneisley’s appeal on the basis that all records responsive to Mr. Kneisley’s request had been provided and DPS had no further “bond” records in its possession.

Mr. Kneisley now appeals to the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 12, 2009, 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. § 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. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with reasonable specificity. Utah Code Ann. § 63G-2-204(1)(b). As soon as reasonably possible, the governmental entity shall respond to the request by: (1) approving the request and providing the record; (2) denying the request; (3) notifying the requester that it does not maintain the record and provide, if known, the name and address of the governmental entity that does maintain the record; or (4) notifying the requester that because of extraordinary circumstances, it cannot immediately approve or deny the request. Utah Code Ann. § 63G-2-204(3)(a).

3. Records containing data on individuals, the disclosure of which constitutes a clearly unwarranted invasion of privacy, are private. Utah Code Ann. § 63G-2-302(2)(d).

4. Counsel for DPS asserted during the hearing that DPS had already provided Mr. Kneisley all “bond” documents responsive to his request, because DPS never received a notice of revocation of Mr. Collins’ Bond. Further, inasmuch as DPS never received notice of revocation for Mr. Collins’ Bond, no further/subsequent surety bond information/records are in the possession of BCI/DPS regarding Mr. Collins and DPS cannot provide Mr. Kneisley records they do not have. Mr. Kneisley argued that BCI/DPS had a duty to obtain ongoing surety bond information as part and parcel of Mr. Collins’ annual, private investigator license renewal application process. Also, because Mr. Collins’ surety bond was revoked, Mr. Kneisley believes BCI/DPS should have in its possession further records, which have not been provided by DPS.

5. At the hearing, DPS acknowledged that BCI/DPS did have copies of Mr. Collins’ annual, private investigator license renewal applications. However Counsel for DPS also asserted that nearly all the information contained in the applications was protected pursuant to Utah Code Ann. § 63G-2-302(2)(d) and therefore, Mr. Kneisley should be denied access to the applications. Mr. Kneisley argued the applications are public records and he should be granted access to the applications, with any “private” information such as social security numbers and birthdates, redacted from the records.

6. After reviewing all the records held by BCI/DPS in camera and hearing the arguments and testimony of the parties, the Committee is convinced that BCI/DPS provided Mr. Kneisley the records that were responsive to his written GRAMA request as it pertains to Mr. Collins’ “bonding” records/information. The Committee is further convinced Mr. Collins’ annual, private investigator license renewal applications are public records, however, the Committee acknowledges these records also contain “private” information within the records. The Committee finds that such “private” information may be effectively redacted from the applications and Mr. Kneisley is entitled to redacted copies of the applications.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Daniel Kneisley is denied as to his request for “bonding” records because the Department of Public Safety has already provided all records in its possession responsive to such written GRAMA requests. The appeal of Daniel Kneisley is affirmed as to his request for Kim Thomas Collins’ annual private investigator license renewal applications. The Department of Public Safety is hereby ordered to, within ten (10) days, provide Petitioner with the applications/renewal applications from 2004 through 2008. However, DPS shall first redact any and all private information from such records.

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 19th day of November 2009.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee