State Records Committee Appeal Decision 2017-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRITT MILLER, Petitioner, v.

UTAH TRANSIT AUTHORITY, Respondent.

DECISION AND ORDER

Case No. 17-11

By this appeal, Petitioner, Britt Miller, seeks access to records allegedly held by Respondent, the Utah Transit Authority (“UTA”).

FACTS

On a form dated November 1, 2016, Mr. Miller made a request to UTA for records pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Miller requested “[a]ll materials and information provided by [the] Labor Relations Institute (LRI).” Mr. Miller stated that he would like to receive copies of the documents, and understood that he was responsible for the costs for providing the documents. In a letter dated November 9, 2016, Michelle Larsen, Senior Records Officer for UTA, denied Mr. Miller’s request finding that materials and information purchased by UTA from LRI are copyrighted materials and therefore, do not constitute records under GRAMA.

Mr. Miller filed an appeal of Ms. Larsen’s denial with Jerry Benson, President and CEO of UTA. Mr. Miller argued in the appeal that "[c]opyrights restrict UTA from copying and distributing copyrighted material. Under copyright laws, I am allowed to review the material, however I cannot make a copy of the material. I request that UTA allow me to review the requested material at the UTA offices." In a letter dated December 15, 2016, Mr. Benson denied Mr. Miller’s appeal, finding that “UTA believes that the copyrighted materials purchased are not a record under GRAMA.”

On January 11, 2017, Mr. Miller filed an appeal with the State Records Committee (“Committee”). On March 16, 2017, the Committee held a hearing where the parties were allowed to present their legal arguments. After considering all arguments by the parties and reviewing all written materials, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA defines a “record” as a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics: (1) That is prepared, owned, received, or retained by a governmental entity or political subdivision, and (2) Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a).

2. GRAMA also states that a “record” does not mean “material to which access is limited by the laws of copyright or patent unless the copyright or patent is owned by a governmental entity or political subdivision.” Utah Code § 63G-2-103(22)(b)(iv).

3. Under GRAMA, a record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). Non-public records include records that are private, controlled, or protected as designated by GRAMA, and records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation. Utah Code § 63G-2-201(3).

4. GRAMA specifies that 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 Utah Code 63G-2-204. Utah Code § 63G-2-201(1). Disclosure of a record to which access is governed or limited pursuant to court rule, another state statute, federal statute, or federal regulation, is governed by the specific provisions of that statute, rule, or regulation. Utah Code § 63G-2-201(6)(a). GRAMA applies to those records insofar as GRAMA is not inconsistent with the statute, rule, or regulation. Utah Code § 63G-2-201(6)(b).

5. Counsel for UTA argued that since the records requested are subject to copyright laws, they are not records pursuant to Utah Code § 63G-2-103(22)(b)(iv), and therefore, there is no requirement for UTA to provide access to the records pursuant Utah Code § 63G-2-201(1). Counsel stated that under 17 U.S.C. § 106(3), the owner of the copyright has the exclusive right to do and to authorize distribution of copies of the copyrighted work to the public by “sale or other transfer of ownership, or by rental, lease, or lending.” Counsel cited to the United States 10th District Court of Appeals who stated that copyright law “explicitly protects the copyright owner’s exclusive right to distribute copies by lending.” Diversey v. Schmidly, 738 F.3d 1196, 1202 (10th Cir. 2013).

6. Counsel for Mr. Miller countered that “[c]opyright does not restrict information from dissemination. Copyright restricts UTA from copying and distributing copyrighted material.” Counsel stated that “even if the requested material is copyrighted, that does not mean it is not subject to disclosure. It is within the boundaries of the copyright laws that this material be reviewed and inspected.”

7. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee is unconvinced that Federal copyright law restricts UTA from providing access to the requested records to Mr. Miller. Copyright law restricts copying, distributing, and lending of records, but does not restrict viewing of records. As stated by the Committee previously:
Copyrighted material maintained by the State or any of its agencies is not automatically excluded as being a record under GRAMA. The provision excluding copyrighted material includes provisions that it is not a record if access to the material held by the public entity is limited by copyright. [United Television, Inc. v. Utah Bd. of Pardons and Parole, State Records Comm. Case No. 94-13 (Oct. 11, 1994), ¶3]

Accordingly, the Committee finds that the requested records are records under GRAMA because copyright law does not prevent access to the records and Mr. Miller has the right to inspect the records pursuant to Utah Code § 63G-2-201(1).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Britt Miller, is GRANTED allowing access to the requested records 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 27th day of March 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee