State Records Committee Appeal Decision 2016-28

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PATRICK SULLIVAN, Petitioner, v.

UNIVERSITY OF UTAH, MEDICAL CENTER. Respondent.

DECISION AND ORDER

Case No. 16-28

By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, the University of Utah, Medical Center.

FACTS

On January 11, 2016, Mr. Sullivan made a records request to the University of Utah, Medical Center ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested emails sent and received by various health providers where Mr. Sullivan was the subject; and various medical records (consultation reports, x-ray reports, office visit reports, and EMG/nerve conduction study reports).

Mr. Sullivan made an additional request on January 18, 2016, for emails sent and received by various health providers where Mr. Sullivan is the subject; medical records (consultations and x-ray reports; and "names of all orthopedic surgeons/residents who worked the Prison Telemed Clinic on September 22, 2014." Mr. Sullivan made a third request on or about April 16, 2016, pursuant to GRAMA for emails sent and received by Kelley Marsden and/or Ashley Holje where Mr. Sullivan's name is contained in the body or the subject of the email.
Respondent denied a portion of the requests above indicating that certain records do not exist. Respondent also sent Mr. Sullivan a letter on or about May 3, 2016, indicating that he needed to make an advanced payment of estimated costs in the amount of $107.90 for the remaining records. Mr. Sullivan appealed the denials stating that the records should exist pursuant to Respondent's retention schedules, and also appealed the fee indicating that the Respondent unreasonably denied the fee waiver request. On or about May 20, 2016, Gregory C. Thompson, Appeals Officer, responded to Mr. Sullivan that the fee was reasonable, and denied the fee waiver. Mr. Sullivan filed an appeal with the State Records Committee (“Committee”).

On June 9, 2016, the State Records Committee (“Committee”) held a hearing regarding Mr. Sullivan’s appeal. Mr. Sullivan was unable to attend the hearing due to circumstances out of his control. The Committee unanimously voted that the matter should be continued to a later date. See, Sullivan v. University of Utah, Medical Center, State Records Committee Order No. 16-22 (June 9, 2016). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on August 11, 2016, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). Utah Code § 63G-2-203(1) provides that a governmental entity “may charge a reasonable fee to cover the governmental entity’s cost of providing a record.”

2. 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).

3. The standard of review for the Committee is to determine whether Respondent’s decision denying Mr. Sullivan’s request for a fee waiver was an “unreasonable denial of a fee waiver.” See, Utah Code § 63G-2-203(6)(a). The cost associated with providing the records was $107.90, and there was insufficient evidence supporting a finding that Mr. Sullivan was qualified for a fee waiver based upon impecuniosity. After reviewing the arguments of the parties and the subject matter of the requested documents, and considering the reasoning used by Respondent to deny the fee waiver request, the Committee finds that the decision to deny Mr. Sullivan’s fee waiver request was not an unreasonable denial.

4. Regarding Mr. Sullivan’s request for emails, the Committee is persuaded by the testimony presented by Respondent that no records were found that were responsive to Mr. Sullivan’s request during Respondent’s search. Although evidence was presented that some records may have existed based upon Respondent’s retention schedule, the Committee cannot order a governmental entity to produce records without a finding that the records actually exist. Accordingly, the Committee recommends that Respondent review its retention schedule with employees to ensure that all documents are kept during the time they should be retained.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is hereby DENIED 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 22nd day of August 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee