State Records Committee Appeal Decision 2014-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LYNN KENNETH PACKER, Petitioner, vs.

OFFICE OF THE ATTORNEY GENERAL, STATE OF UTAH, Respondent.

LYNN KENNETH PACKER Petitioner, vs.

DEPARTMENT OF ADMINISTRATIVE SERVICES, STATE OF UTAH, Respondent.

DECISION AND ORDER

Case No. 14 - 05

By this appeal, Petitioner, Lynn Kenneth Packer (“Mr. Packer”), seeks access to records from the Respondents, the Office of the Attorney General for the State of Utah (“Attorney General”), and the Department of Administrative Services for the State of Utah, pursuant to Utah’s Government Records Access and Management Act (“GRAMA”). Since the parties have agreed the facts and issues are the same in these two matters, both of the cases are consolidated for efficiency and upon mutual approval of the parties and the State Records Committee.

FACTS

This appeal involves the redaction of portions of vehicle fleet records pertaining to vehicles assigned to employees who are investigators for the Utah Attorney General Office. The Department of Administrative Services redacted from the requested records the names of investigators and information that would identify the unmarked vehicles that the investigators drive. The Petitioner seeks the release of such records without any redactions. The State Record Committee, having reviewed the materials submitted by the parties, and having heard oral argument of the parties on March 19, 2014, 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). “Protected” records are not public. Utah Code §63G-2-201(3)(a).

2. If properly classified by a governmental entity, the following records are “protected”:

Utah Code §63G-2-305(10) - “records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes,....if release of the records: (a) reasonably could be expected to interfere with investigations undertaken for enforcement .... purposes; ...... (d) reasonably could be expected to disclose the identity of a source who is not generally known outside of government....; or (e) reasonably could be expected to disclose investigative or audit techniques,....not generally known outside of government if disclosure would interfere with enforcement or audit efforts.”

Utah Code §63G-2-305(11) - “records the disclosure of which would jeopardize the life or safety of an individual”, and

Utah Code §63G-2-305(12) - “records the disclosure of which would jeopardize the security of governmental property, governmental programs, or governmental recordkeeping systems from damage, theft, or other appropriation or use contrary to law or public policy”.

3. The information redacted in the requested records concerns the names of investigators, the make, model, and license plate numbers and other information that would identify the vehicles as unmarked vehicles used by investigators of the Attorney General Office. Identifying vehicles that plainclothes investigators drive could reasonably be expected to endanger their life or safety, as well as jeopardize the security of the vehicle itself. Additionally, revealing the identity of investigators and the unmarked vehicles that they drive could reasonably interfere with enforcement proceedings or disclose investigative techniques not known outside the government.

4. After reviewing the written arguments, exhibits, and materials submitted by the parties, hearing oral arguments and testimony of the parties, the Committee finds the portions of the record which redact the identity of current law enforcement investigators and the identity of unmarked law enforcement vehicles is justified under Utah Code 63G-2-305(10),(11), and (12) and are properly classified as protected.

5. The Committee concluded that the public interest does not outweigh the privacy interests in this case and therefore declined to engage the weighing provision.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of the Petitioner, Lynn Kenneth Packer, is DENIED. The Committee orders the release of the three names redacted from the records that counsel for the respondent agreed to release at the hearing.

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.1

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 28th day of March, 2014

BY THE STATE RECORDS COMMITTEE

_________________________________________
LEX HEMPHILL, Chairperson
State Records Committee