State Records Committee Appeal Decision 2016-27

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROGER BRYNER, Petitioner, v.

UTAH DEPARTMENT OF TECHNOLOGY SERVICES. Respondent.

DECISION AND ORDER

Case No. 16-27

By this appeal, Petitioner, Roger Bryner, seeks access to records stored by Respondent, the Utah Department of Technology Services.

FACTS

On March 22, 2016, Mr. Bryner made a records request to the Utah Department of Technology Services (“DTS”), pursuant to the Government Records Access and Management Act (“GRAMA”), for the following records:
1. All design or specification documents for the Department of Health relational databases which store blood alcohol levels obtained from GC testing, any billing documents between departments, and any other records which would tend to specify the type of database used to query capabilities on that database.

2. The electronic records from the relational database of the results of all blood alcohol tests performed in 2015. [Respondent] may not select the names of the persons who were tested or any other private information but only if allowed by law. [Mr. Bryner] would like these as the result of an SQL query on the Department of Health Database. [Mr. Bryner] would also like a copy of the SQL text used to conduct the query.

3. The electronic records from the relational database of the results of all blood alcohol tests performed in 2016 for ME, my medical records. [Mr. Bryner] would like these as the result of an SQL query on the Department of Health Database. [Mr. Bryner] would also like a copy of the SQL text used to conduct the query.

Additionally, Mr. Bryner requested a fee waiver regarding the production of the above requested records.

On March 23, 2016, Stephanie Weteling, Public Information Officer for DTS, denied Mr. Bryner's GRAMA request, indicating that DTS does not have the authority to release the records because it stores the records electronically on behalf of other governmental entities, and therefore, does not own the records. Mr. Bryner filed an appeal with Michael Hussey, Chief Information Officer for DTS, who thereafter affirmed Ms. Weteling’s denial.
On March 24, 2016, Mr. Bryner filed an appeal with the State Records Committee (“Committee”). 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. A person making a request for a record “shall submit the request to the governmental entity that prepares, owns, or retains the record.” Utah Code § 63G-2-204(2)(a). GRAMA defines a "record" to include electronic data that is “prepared, owned, received, or retained by a governmental entity or political subdivision.” See, Utah Code § 63G-2-103(22)(a)(i).

2. DTS provided testimony that the requested records are considered “non-department records” as defined by Utah Admin. Code R.895-1-2(3) because the requested records are owned by the Utah Department of Health, and are stored electronically by DTS electronically on behalf of the Utah Department of Health. Because of the unique computer services provided by DTS on behalf of Utah governmental entities, DTS has implemented an Administrative Rule which states that DTS “shall deny a request for access to non-department records” and that the records officer “may redirect a request for non-department records to the owner of the records.” Utah Admin. Code R.895-1-4(3).

3. The Committee finds based upon the testimony and arguments presented, that DTS is not the owner of the requested records, and therefore, is not authorized to produce the records to Mr. Bryner.

4. Mr. Bryner also made a request for a fee waiver for the production of the records. Even though this issue is moot because of the Committee’s finding that DTS could not produce the records, the Committee also finds that DTS’s denial of Mr. Bryner’s request for a fee waiver was not an unreasonable denial. Mr. Bryner failed to sufficiently prove any of the factors listed in Utah Code § 63G-2-203(4)(a-c) and GRAMA “gives a governmental entity the discretion to deny a fee waiver request as long as the denial can be considered reasonable.” Allen v. Eagle Mtn., State Records Comm. Decision 2014-07 (Apr. 14, 2014), ¶7.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, 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 July 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee