State Records Committee Appeal Decision 2016-44

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROGER BRYNER, Petitioner, v.

CLEARFIELD CITY, Respondent.

DECISION AND ORDER

Case No. 16-44

By this appeal, Petitioner, Roger Bryner, seeks access to records held by Respondent, Clearfield City.

FACTS

This appeal is with regard to four separate GRAMA requests as follows:

1. On June 6, 2016, Petitioner requested records from and about a certain specific facsimile/printer machine used by the Clearfield City Police Department, including purchase receipts, the user manual and service records for the machine; a usage log; and a representative sample of electronic and paper documents when the machine receives or sends a document.

2. On June 9, 2016, Petitioner requested, “1) all emails from anyone or to anyone or between people at Clearfield City involving [Petitioner] covering the time period from 7-10-15 to [June 9, 2016]. 2) all other communications from anyone to anyone or
between people at Clearfield City involving [Petitioner].”

3. On June 21, 2016, Petitioner requested the configuration settings of a webpage mentioned in the user manual of a certain printer of the Respondent, a printout directory in the archive destination of the printer, and a printout of emails from a facsimile machine of the Respondent.

4. On July 7, 2016, Petitioner requested the activity log related to a specific printer/facsimile machine.

Respondent timely responded to the Petitioner’s record requests. The Respondent advised Petitioner that certain requested records do not exist, but with regard to the records that do exist, the Respondent either provided the requested documents without redactions, provided the requested records with redactions, or notified the Respondent the requested record existed but would not be disclosed, all in accordance with the applicable provisions of GRAMA as identified by the Respondent.

The Petitioner appeals the redactions and nondisclosure of records made by the Respondent. Those redactions are broadly set forth as follows:

In response to Petitioner’s June 6, 2016, record request the Respondent redacted names of individuals, dates of birth, driver’s license numbers and social security numbers, as private records in accordance with Utah Code Ann. § 63G-2-303(1)(i)(j) and § 63G-2-303(2)(d), that were on the requested representative sampler of documents from the printer/facsimile machine.

In response to the Petitioner’s June 9, 2016, record request the Respondent made redactions to some of the requested records on the basis that certain portions were private pursuant to Utah Code Ann. § 63G-2-302(2)(d); that certain portions of the requested records were attorney client privileged and protected pursuant to Utah Code Ann. § 63G-2-305(17)(18), and (23) and the “Common Interest” privilege set forth in Utah R. Evid. 504(b), and the Utah Uniform Mediation Act found at Utah Code Ann. § 78B-10-104.

In response to the Petitioner’s June 21, 2016, record request the IP address was redacted as a protected record pursuant to Utah Code Ann. § 63G-2-305(12).

In response to the Petitioner’s July 7, 2016, record request there were no redactions as the records requested by Petitioner do not exist.

The Petitioner’s appeal was initially heard on October 13, 2016, by the State Records Committee (the “Committee”), where the parties were allowed to present their legal arguments. The Respondent provided the Committee with redacted and un-redacted copies of records, which both parties requested be reviewed by the Committee in camera. Due to the volume of records and the time needed for such review the parties agreed to have this matter continued to November 10, 2016, so the Committee could review the records.

During the month continuance, the Committee did review the un-redacted and redacted copies of the records in camera, and on November 10, 2016, reconvened the hearing of the Petitioner’s appeal, at which time the Committee went in camera to finalize its review of the records. Upon reconvening the public hearing of this matter, and after considering all arguments by the parties, both oral and written, and specifically with regard to the attorney client privileged redactions and the “common interest doctrine”, 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 provide by statute” Utah Code Ann. § 63G-2-201-(2). Records that are private, controlled, or protected under Utah Code §§ 63G-2-302, -303, -304 or -305, are not public records. Utah Code Ann. § 63G-2-201(3)(a).

2. The names of individuals, their driver’s licenses, dates of birth and social security numbers that were on the randomly selected records from the facsimile/printer machine at the Clearfield City Police Department were properly redacted as private records pursuant to Utah Code Ann. §§ 63G-2-302(1)(i)(j) and 63G-2-302(2)(d).

3. The IP address was properly redacted as a protected record pursuant to Utah Code Ann. § 63G-2-305(12).

4. Records containing communications between and amongst attorneys and their clients including all records reasonably subject to the common interest doctrine or subject to the privilege provided by Utah R. Evid. 504(b), were properly classified as protected records pursuant to Utah Code Ann. § 63G-2-305(17),(18), and (23) and the “Common Interest” privilege set forth in Utah R. Evid. 504(b).

5. Any and all other redacted records, not specifically set forth herein, that were subject to this appeal, were accurately classified by the Respondent.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, 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 Ann. § 63G-2-404, and 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 Ann. § 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 Ann. § 63G-2-404(1) and (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 Ann. § 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 Ann. § 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 $500.00 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 Ann. § 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 Ann. § 63G-2-403(15)(d)(ii).

ENTERED this 22nd day of November, 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee