State Records Committee Appeal Decision 2016-18

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRYAN THATCHER, Petitioner, v.

UTAH DEPARTMENT OF PUBLIC SAFETY. Respondent.

DECISION AND ORDER

Case No. 16-18

By this appeal, Petitioner, Bryan Thatcher, seeks access to records allegedly held by Respondent, the Utah Department of Public Safety (“Public Safety”).

FACTS

On May 11, 2016, the State Records Committee (“Committee”) held a hearing regarding Mr. Thatcher’s appeal. A previous hearing was held on April 14, 2016, where it was determined that the records responsive to Mr. Thatcher’s request were too numerous to review in their entirety during the hearing. The Committee voted to continue the hearing in order to allow sufficient time for the Committee members to review the disputed records. See, Thatcher v. Ut. Dept. of Pub. Safety, State Records Committee Order No. 16-13 (Apr. 25, 2016). After having reviewed the records in camera provided by Public Safety, the Committee 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 and -304.

2. In the present case, Public Safety provided some documents to Mr. Thatcher pursuant to his records request, but denied access to other documents after classifying them as non-public records based upon statutory provisions found in GRAMA. After reviewing the records classified as non-public by Public Safety in camera, for ease of classification and discussion, the Committee categorized the records into the following fourteen groups and classified them as follows:

3. Group #1 consists of court records. Judicial records” are “public” records “unless a court orders the records to be restricted under the rules of civil or criminal procedure or unless the records are private under this chapter…” Utah Code Ann. § 63G-2-301(2)(f). Therefore, the Committee finds that these court records should be considered public records.

4. Group #2 consists of records of codes and policies for Public Safety. Generally, laws, administrative staff manuals, instructions to staff, and statements of policy are considered public records unless specifically exempt from disclosure under GRAMA. See, Utah Code §§ 63G-2-301(2)(a) and -301(3)(a). A review of the codes and policy records from Public Safety shows that they should be considered public records.

5. Group #3 consists of records of Public Safety’s actual internal affairs investigation and reporting, which included narrative and witness statements. Records created or maintained for civil, criminal, or administrative enforcement purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity if release of the records: (1) Reasonably could be expected to interfere with discipline or enforcement proceedings; (2) 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; or (3) Reasonably could be expected to disclose investigative techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement efforts. Utah Code § 63G-2-305(10)(b), (d), and (e). After reviewing the records in Group #3, the Committee finds that these records were properly classified by Public Safety as protected records pursuant to Utah Code § 63G-2-305(10)(b), (d), and (e).

6. Group #4 consists of summaries of the findings of the internal affairs investigations and the final executive summary. Final opinions, including concurring and dissenting opinions, and orders that are made by a governmental entity in an administrative, adjudicative, or judicial proceeding are public records except to the extent they contain information expressly permitted to be treated confidential. Utah Code § 63G-2-301(2)(c). A review of these records shows that they should be public records pursuant to Utah Code § 63G-2-301(2)(c) because they are the final findings of Public Safety’s investigators.

7. Group #5 consists of polygraph records. Records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data, are private records. Utah Code § 63G-2-302(1)(b). When considering the fact that a polygraph examination consists of monitoring a person’s vital signs and other physiological indicators in order to determine whether the person is being truthful, this information should be kept private pursuant to Utah Code § 63G-2-302(1)(b). Since Mr. Thatcher is the subject of the records, he should be allowed to have access to the records pursuant to Utah Code 63G-2-202(1)(a).

8. Group #6 consists of Drivers’ License records. The Utah Driver License Division of Public Safety (“Division”) may only disclose personal identifying information held by the Division when: (1) the Division determines it is in the interest of the public safety to disclose the information and in accordance with the Federal Driver’s Privacy Protection Act of 1994; (2) To a licensed private investigator holding a valid agency license, with a legitimate need; (3) An insurer, insurance support organization, or self-insured entity that issues motor vehicle insurance, for use in connection with claims, investigation activities, antifraud activities, rating, or underwriting for a licensed individual; or (4) A depository institution for use with the Federal Driver’s Privacy Protection Act of 1994. Utah Code § 53-3-109(1)(b) and (c). Mr. Thatcher does not qualify as a person who may receive Drivers’ License records from the Division, and therefore, the records were properly classified as non-public by Public Safety pursuant to Utah Code § 63G-2-201(3)(b) and (6)(a) (record to which access is governed or limited pursuant to another state statute).

9. Group #7 consists of records that could be characterized as initial contact reports. Initial contact reports are normally public records, unless they are expressly exempt from disclosure under GRAMA. Utah Code § 63G-2-301(3)(g). Accordingly, the Committee finds that the Group #7 records should be classified as public records.

10. Group #8 consists of incident reports and Group #9 consists of investigative notes. A review of these records shows that they are not initial contact reports, but are instead records that were created or maintained for civil, criminal, or administrative enforcement purposes, and/or for discipline, licensing, certification, or registration purposes, and should not be disclosed pursuant to Utah Code § 63G-2-305(10)(b), (d), and (e).

11. Group #10 consists of mixed types of correspondences, including letters, e-mails, memoranda, and text messages, in which Mr. Thatcher was a party to the correspondences. Although the records were properly classified as private pursuant to Utah Code § 63G-2-302(2)(d) (records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy), since Mr. Thatcher is the subject of the records, he should be allowed to have access to the records pursuant to Utah Code § 63G-2-202(1)(a).

12. Group #11 consists of “dissemination logs.” Since there is no statutory provision that appears to make these records non-public, these records should be classified as public records pursuant to Utah Code § 63G-2-201(2).

13. Group #12 consists of correspondences between Public Safety and their legal counsel. Records that are subject to the attorney client privilege are considered protected records if properly classified by the governmental entity pursuant to Utah Code § 63G-2-305(17).

14. Group #13 consists of all remaining correspondences not listed above. Since there is no statutory provision that appears to make these records non-public, these records should be classified as public records pursuant to Utah Code § 63G-2-201(2).

15. Group #14 consists of audio recordings of interviews of employees. These records were properly classified as private records pursuant to Utah Code § 63G-2-302(2)(d) and/or protected records pursuant to Utah Code § 63G-2-305(10)(b), (d), and (e). Since Mr. Thatcher is not the subject of the record is therefore not entitled to receive the records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Bryan Thatcher, is GRANTED in part and DENIED in part as detailed above.

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 20th day of May 2016.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee