State Records Committee Appeal Decision 2012-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

W. ANDREW McCULLOUGH, Petitioner, vs.

UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.

DECISION AND ORDER

Case No. 12-13

By this appeal, Petitioner, W. Andrew McCullough, appeals the denial of his records request to the Utah Department of Public Safety (“Department”).

FACTS

On or about March 26, 2012, a vehicle owned by Mr. McCullough was stopped for a traffic violation. The vehicle was impounded based upon a suspicion that the driver was driving under the influence of an illegal substance. In order to recover his vehicle, Mr. McCullough paid a $330.00 administrative fee to the Driver License Division of the Department (“Division”). Pursuant to Utah Code § 41-6a-1406(6)(c), Mr. McCullough requested that the administrative impound fee be refunded because the “arrested person’s driver license [was not] suspended or revoked” under Utah Code § 53-3-223 or § 41-6a-521. However in order to prove this, Mr. McCullough needed to present “a letter or other report from the Driver License Division presented within 30 days of the final notification from the Driver License Division…” See, Utah Code § 41-6a-1406(6)(c)(i).

On March 30, 2012, Mr. McCullough sent a request to the Division for information regarding the driver’s license status of the individual operating his vehicle at the time it was impounded. On April 3, 2012, Mr. McCullough sent a second request seeking information concerning any action taken by the Division against the person driving his vehicle at the time it was impounded. In a letter dated April 13, 2012, the manager of the Division stated that the records being sought “have been classified as private pursuant to section 63G-2-302” and that release of personal information contained in these records “is limited to those individuals described in the Driver’s Privacy Protection Act of 1994, found at 18 U.S.C. Chapter 123.”

In a letter dated April 24, 2012, Mr. McCullough filed an appeal with the Commissioner of the Division, stating that he had a “right to this information, and the right to the refund of my impound fee.” Mr. McCullough also requested a “no action” letter from the Division “to assist me in obtaining my refund.” The Commissioner of the Division reaffirmed the denial of access to the records and added that Utah Code § 63G-2-201(8)(a) provides that a “governmental entity is not required to create, compile, format, summarize, or tailor information.”
Mr. McCullough filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on July 12, 2012, 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 § 63G-2-201(2).

2. In response to a request for a record, a governmental entity is not required to: (i) create a record; (ii) compile, format, manipulate, package, summarize, or tailor information; or (iii) provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(a)(i-iii).

3. Testimony was presented by the Department that a “no action” letter relating to the stopping or impounding of Mr. McCullough’s vehicle does not exist. Therefore pursuant to Utah Code § 63G-2-201(8)(a), there is no obligation by the Department to create such a letter in response to Mr. McCullough’s GRAMA request.

4. The Department stated that it did have a document that contained the driver’s license report of the individual who was driving Mr. McCullough’s vehicle at the time it was stopped and later impounded. However, the Department argued that it could not disclose the report based upon applicable federal statutes.

5. A record to which access is restricted pursuant to a federal statute is not a public record under GRAMA. Utah Code § 63G-2-201(3)(b). The disclosure of a record to which access is governed or limited pursuant to a federal statute is governed by the specific provisions of that statute. Utah Code § 63G-2-201(6)(a). GRAMA applies to those records “insofar as this chapter is not inconsistent with the statute, rule, or regulation.” Utah Code § 63G-201(6)(b).

6. A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity: (1) “personal information” as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in 18 U.S.C. 2721(a) and (b).

7. “Personal information” means information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status. 18 U.S.C. 2725(3).

8. In order to determine whether the report contained restricted personal information, the Committee reviewed the report in camera. After reviewing the report, the Committee determined that access to the report should be restricted pursuant to 18 U.S.C. 2721(a), however, information within the report (specifically items 1, 3, & 5) is public and should be disclosed to Mr. McCullough after proper redaction of restricted information because this information relates to driving violations and/or driver’s status, which are not restricted by 18 U.S.C. 2725(3). Accordingly, such unrestricted information should be disclosed to Mr. McCullough pursuant to his records request.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, W. Andrew McCullough be granted in part and denied in part as outlined in paragraphs 3 and 8 above.

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 § 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 § 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 20th day of July 2012.

BY THE STATE RECORDS COMMITTEE

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BETSY ROSS, Chairperson
State Records Committee