State Records Committee Appeal Decision 2016-26

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROGER BRYNER, Petitioner, v.

UTAH DEPARTMENT OF HEALTH. Respondent.

DECISION AND ORDER

Case No. 16-26

By this appeal, Petitioner, Roger Bryner, seeks access to records held by Respondent, the Utah Department of Health.

FACTS

On February 9, 2016, Mr. Bryner made a records request via e-mail for "copies of the results of all blood alcohol tests performed in 2015" from the Utah Department of Health ("Respondent"), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Bryner indicated that Respondent could redact the names of individuals tested "if legally required" and in the alternative, provide summary data of "all levels tested." Mr. Bryner also requested a fee waiver for production of the records.

On February 16, 2016, the Chief Forensic Toxicologist for Respondent, denied Mr. Bryner's request stating that the records are private. He also denied Mr. Bryner’s request for a fee waiver for redacted records because "the Laboratory does not have dedicated staff for this type of work, creating the records you request would unreasonably interfere with the Laboratory’s duties and responsibilities." Mr. Bryner appealed the denial, and on February 24, 2016, the Executive Director for Respondent denied Mr. Bryner's appeal.

On March 14, 2016 Mr. Bryner filed an appeal with the State Records Committee ("Committee"), disagreeing with Respondent's denial of the records request and their decision to not grant a fee waiver. The Committee, having reviewed the arguments submitted by the parties, having heard oral argument and testimony on July 14, 2016, 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. Respondent provided testimony that the records are properly classified as "private" records because records showing the blood alcohol levels of individuals are "records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data." See, Utah Code § 63G-2-302(1)(b).

3. The Committee agrees with Respondent and finds that the primary classification by Respondent of the records as private non-public records is correct pursuant to Utah Code § 63G-2-302(1)(b).

4. In his records request, Mr. Bryner stated that Respondent "may redact names of persons who were tested…if required by law." The Committee determined that although the records are properly classified as private, the Respondent may create and release to the petitioner only the blood alcohol levels, stripped of any personally identifiable information, but it was the Committee’s opinion that there was no way to perform a statistical analysis or draw any reasonable conclusion based only on the blood alcohol levels without accompanying data which was properly classified under GRAMA as private.

5. Respondent claimed that redacted records could only be provided to Mr. Bryner either by: (1) Printing the records from the electronic database and manually redacting the names of the individuals from the printed pages; or (2) Requesting assistance from the Utah Department of Technology Services to write a computer program that would produce the records in a redacted or summary form. Respondent stated that either of these methods would incur great costs to Respondent.

6. Utah Code § 63G-2-203(1) states that a governmental entity may charge a "reasonable fee to cover the governmental entity's actual cost of providing a record." Actual costs may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person’s request. Utah Code § 63G-2-203(2)(a)(i).

7. In the case of fees for a record that is a result of "computer output other than word processing", the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information may be charged by the governmental entity as an "actual cost." Utah Code § 63G-2-203(2)(a)(iii).

8. A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record; or (3) 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)(a-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).

9. After hearing testimony and reviewing all written arguments, the Committee finds Respondent's denial of Mr. Bryner’s request for a fee waiver was not an unreasonable denial. Respondent's explanations concerning the required redaction of the records, the time that redaction would take, and the anticipated cost to provide the information to Mr. Bryner, were reasonable and credible. The Committee also finds that Mr. Bryner failed to sufficiently prove any of the factors listed in Utah Code § 63G-2-203(4)(a-c).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, is DENIED in part and GRANTED in part, as to the records request, and DENIED in whole as to the request for a fee waiver.

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 July 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee