State Records Committee Appeal 2015-33

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PATRICK SULLIVAN, Petitioner, v.

UTAH INSURANCE DEPARTMENT, FRAUD DIVISION. Respondent.

DECISION AND ORDER

Case No. 15-33

By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, Utah Department of Insurance, Fraud Division.

FACTS

In a letter dated March 30, 2015, Mr. Sullivan made a records request to the Utah Insurance Department, Fraud Division ("Fraud Division"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested “[a]ny and all, email messages or text messages, sent or received” by certain individuals where Mr. Sullivan was the subject or relating to certain cases. On April 14, 2015, Mr. Sullivan’s request was denied because the records involved an “active open case prosecuted criminally by the Fraud Division.” In a letter dated April 17, 2015, Mr. Sullivan appealed the denial to Commissioner Todd E. Kiser, Chief Administrative Officer for the Insurance Department. Commissioner Kiser referred the matter to Deputy Commissioner, Brett J. Barratt, who reviewed and then remanded the appeal to the Insurance Department (“Department”) “to produce the information requested, to the extent permitted under applicable privilege and statutory exclusions.” The Insurance Division first tried to produce the records in paper format and the Department of Corrections indicated they were required to produce the records on DVD. Mr. Sullivan thereafter was given a DVD containing over 900 records responsive to his records request at no cost, with redactions of some of the records.

In a letter dated May 9, 2015, Mr. Sullivan wrote to Commissioner Kiser stating that he had received the DVD, but since he was an inmate at the Utah State Prison and not allowed to possess DVDs or have computer access, “I can only assume this is an attempt to avoid disclosing the records I have requested.” Thereafter, Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). In his appeal, Mr. Sullivan raised three issues: (1) Redactions made by the Fraud Division were improper; (2) The Fraud Division should have granted his request for a fee waiver; and (3) The Fraud Division still possesses records that are responsive to his records request. The Committee having reviewed the materials provided for in camera review the arguments submitted by the parties, and having heard oral argument and testimony on December 10, 2015, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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 governmental entity may properly classify a record as “protected” if the record was created or maintained for civil, criminal, or administrative purposes, if release of the record reasonably could be expected to disclose the identity of a source who is not generally known outside of government, and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(d).

3. Counsel for the Fraud Division argued that the redactions for the six records were proper and allowed by GRAMA. One document identifies a victim of and a witness of Mr. Sullivan’s insurance fraud. Four documents of a string of emails concern an investigation of an allegation that Mr. Sullivan conspired to injure a prosecution witness, and the Fraud Division redacted information that identifies an investigative source and possible victims. The last document is an email that identifies a victim and a source of information in the insurance fraud investigation.

4. The Committee reviewed the unredacted records in camera and determined that the records were properly redacted pursuant to Utah Code § 63G-2-305(10)(d).

5. Concerning Mr. Sullivan’s request for a fee waiver, a governmental entity “may fulfill a record request” without charge and is encouraged to do so when it determines that: (1) The individual requesting the record is the subject of the record; or (2) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(b) & (c). A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b).

6. After hearing arguments from the parties, the Committee finds that the Fraud Division’s denial of Mr. Sullivan’s request for a fee waiver was not unreasonable. Although Mr. Sullivan’s ability to access the information provided to him by the Fraud Division in a DVD, may be limited by his current incarceration in prison, this does not require the Fraud Division to provide the records in a different format and/or waive the fees associated with the costs of copying the records to a different format.

7. Mr. Sullivan also argued that he believed the Fraud Division has copies of emails contained within a “Google Vault.” Many emails for the State of Utah are hosted by Google Mail, and Google provides an optional service called “Google Vault” that stores copies ofemails. Counsel for the Fraud Division could not say conclusively whether the Fraud Division has Google Vault as a service.
8. Based upon the evidence presented at the hearing, the Committee finds that there is a question of fact concerning whether the Fraud Division has records responsive to Mr. Sullivan’s records request through the Google Vault service. The Fraud Division is hereby directed to determine whether it has the Google Vault service, and if so, further determine if there are additional records responsive to Mr. Sullivan’s records request, and provide those records to Mr. Sullivan consistent with the determinations’ of the Committee in this Order concerning redactions and fee waivers. See also Utah Code § 63G-2-203(1).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is GRANTED in part and DENIED in part.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). 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(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 21st day of December, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee