State Records Committee Decision 2016-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CHAD LAMBOURNE, Petitioner, v.

PROVO CITY POLICE DEPARTMENT. Respondent.

DECISION AND ORDER

Case No. 16-03

By this appeal, Petitioner, Chad Lambourne, seeks access to records allegedly held by Respondent, Provo City Police Department.

FACTS

On July 29, 2015, Mr. Lambourne made a records request to the Provo City Police Department ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Lambourne is representing an individual in regards to a Driving Under the Influence (“DUI”) charge and arrest that occurred on July 6, 2015. The requested records related to the DUI incident.

On August 12, 2015, Respondent partially denied Mr. Lambourne’s request indicating that two documents, the DUI Report Form and Incident Report, were classified as protected records. On August 31, 2015, Mr. Lambourne appealed the partial denial, and in a letter dated September 16, 2015, Wayne Parker, the Mayor’s designee, affirmed the Respondent’s partial denial. On October 16, 2015, Mr. Lambourne filed an appeal with the State Records Committee (“Committee”).

On January 7, 2016, Camille S. Williams, Counsel for Respondent, filed a “Motion to Dismiss Appeal as Untimely and Supporting Memorandum” (“Motion”). Respondent argued in the Motion that Mr. Lambourne’s appeal to the Committee was untimely because it was filed with the Committee one day late.

On January 14, 2015, the Committee held a public hearing to consider the merits of the Motion and Mr. Lambourne's Appeal. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony from all of the parties, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. In order to appeal a decision to the records committee, the records committee appellant must “fil[e] a notice of appeal with the executive secretary of the records committee no later than 30 days after the date of issuance of the decision being appealed.” Utah Code § 63G-2-403(1)(a).

2. In the present case, Respondent issued the denial via e-mail dated September 15, 2015. The attached document to the e-mail denying Mr. Lambourne’s appeal, was signed and dated September 16, 2015. Mr. Lambourne’s appeal was received by the Executive Secretary of the Committee on Friday, October 16, 2015, via regular U.S. Mail at the Utah Division of Archives in Salt Lake City, Utah, in an envelope that was postmarked October 14, 2015, from a Salt Lake City address.

3. Respondent argued that Mr. Lambourne failed to timely file his appeal with the Executive Secretary, noting that “filing” required the Executive Secretary to receive the appeal by, October 15, 2015. Mr. Lambourne, argued that the denial of his request was emailed after business hours on September 15, 2015, and he did not review it until September 16, 2015. Additionally, Mr. Lambourne stated that he initially believed that he had timely filed the appeal because the denial letter from Wayne Parker, the Mayor’s designee, was dated September 16, 2015.

4. After carefully considering the parties' arguments, the Committee finds that the "Motion to Dismiss Appeal as Untimely and Supporting Memorandum” should be denied. Although Utah Code § 63G-2-403(1)(a) requires the appeal to be filed within 30 days of the chief administrative officer’s decision, the unique circumstances involving the date appearing on the denial letter and the post mark of the appeal, should allow the present appeal to be heard by the Committee.

5. Concerning the subject matter of the appeal itself, 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.

6. 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 interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code § 63G-2-305(10)(a).

7. Counsel for Respondent argued that the denial for the DUI Report Form and Incident Report were proper and allowed by GRAMA because the investigation was still open at the time. Counsel refuted Mr. Lambourne’s representation, that once the proceedings in the criminal DUI matter are complete, the records should have become available upon payment of a reasonable fee.

8. After hearing arguments from the parties, the Committee finds that the records, at the time of the request, were properly classified pursuant to Utah Code § 63G-2-305(10).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Chad Lambourne, is DENIED.

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 26th day of January, 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee