State Records Committee Appeal 2013-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MORGAN FIFE, Petitioner, vs.

CITY OF OREM, Respondent.

DECISION AND ORDER

Case No. 13-14

By this appeal, Petitioner, Morgan Fife, seeks access to documents related to a Request for Proposal (“RFP”) prepared by Respondent, the City of Orem (“Orem”), dated April 18, 2013.

FACTS

On April 18, 2013, Orem released an RFP for “Consulting Services-Employee Benefit Plans.” The purpose of the RFP was to solicit bid proposals from licensed and qualified insurance brokers to provide consulting services to Orem for health, dental, life, accidental death, and long term disability insurance employee benefit plans. The bid proposals were due to Orem by May 16, 2013.

On June 14, 2013, Fife filed a request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) with Orem. Fife requested any and all documents related to the RFP including “RFP responses and submissions; scoring sheets or cards for written responses; scoring sheets or cards for finalist interviews; all written correspondence, emails, & letters; memoranda; notes; receipts.” He also requested correspondence by Orem with any of the respondents in any way related to or concerning the RFP.

In a letter dated July 2, 2013, Heather J. Schriever, Assistant City Attorney, stated that Orem had compiled the records requested and included a schedule of records that would not be produced including private e-mail addresses and personal information on all non-City of Orem employees, and portions of bid proposals submitted by four companies pursuant to Utah Code § 63G-2-305(2) & (6). Fife filed a notice of appeal with Jamie Davidson, Orem’s City Manager and Chief Administrative Officer, regarding the protected classification of the four bid proposals. In a letter dated August 28, 2013, Mr. Davidson affirmed Ms. Schriever’s decision and denied Fife’s appeal. Fife now appeals the City of Orem’s denial of his records request to the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 21, 2013, 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). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Commercial information or non-individual financial information are protected records if properly classified by a governmental entity and if: (1) Disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future; (2) The person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and (3) The person submitting the information has provided the governmental entity with the information specified in Utah Code § 63-2-309. See, Utah Code § 63G-2-305(2).

3. Any person who provides to a governmental entity a record that the person believes should be protected under Utah Code § 63G-2-305(2) shall provide with the record a written claim of business confidentiality and a concise statement of reasons supporting the claim of business confidentiality. Utah Code § 63G-2-309(1)(a)(i).

4. In its response to Fife’s appeal, Orem stated that after it had received Fife’s GRAMA request, it reviewed the bid proposals and found that three of them “contained language indicating that the bid proposals may contain confidential, proprietary, or privileged information.” Orem contacted the fourth bidder and they responded by providing to Orem references to specific content in its bid proposal that should be classified as protected pursuant to Utah Code § 63G-2-305. Based upon these responses, Orem determined that the four bidders had met the requirements of Utah Code § 63G-2-309 and classified the relevant portions of the records as protected.

5. A review of portions of the bids indicates an intention on the part of the bidders to have information classified as protected. One bid had a “confidentiality notice” that included language indicating that the “document and any attachments are for the sole use of the City of Orem and may contain proprietary, confidential, or privileged information.” Another bid was marked “Confidential-Proprietary Information” and stated that pages marked “Confidential” in the proposal “are considered confidential and proprietary” and asserted that “disclosure would provide an advantage to our competitors if they were to obtain this information.” Another bid stated that “[i]nformation contained in this document is proprietary and submitted with the understanding that it will not be used for purposes other than the evaluation of our qualifications without the written prior consent” of the bidder. The fourth bidder provided a letter dated July 1, 2013, that outlined for what parts of its bid a claim of confidentiality was being made by the bidder, and added that the “insurance industry considers such information proprietary, and all insurance companies and agencies maintain that information as confidential.” Counsel for two of the bidders appeared before the Committee confirming their clients’ positions concerning confidentiality of the bids.

6. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, and reviewing portions of the submitted bids, the Committee finds that the four bidders gave sufficient notice concerning confidentiality of their bids as required by Utah Code § 63G-2-309(1) and that the City of Orem properly classified portions of the bid proposals as protected pursuant to Utah Code § 63G-2-305(2).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Morgan Fife is DENIED.

RIGHT TO APPEAL

Any party to this proceeding before the Committee 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 3rd day of December 2013,

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Chairperson
State Records Committee