State Records Committee Appeal Decision 2018-26

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NELSON BROWN, Petitioner, v.

WEBER AREA DISPATCH 911 AND EMERGENCY SERVICES, Respondent.

DECISION AND ORDER

Case No. 18-26

By this appeal, Petitioner, Nelson Brown, seeks access to records allegedly held by Respondent, the Weber Area Dispatch 911 and Emergency Services.

FACTS

On or about April 6, 2018, Petitioner made a records request to the Weber Area Dispatch 911 and Emergency Services ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “[a] phone call made by [an individual] requesting sheriffs deputies to respond to my house located at [a specific location] Monday evening, 26 February 2018 sometimes between [a specific time].” Respondent denied the request indicating that the information is classified as protected and contains “information that, if released, would jeopardize the safety of an individual.”

Petitioner appealed the denial to the Executive Director, Tina Mathieu, and on April 23, 2018, the denial was upheld pursuant to Utah Code § 63G-2-304. Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on July 12, 2018, reviewing the records in camera, and carefully considering the requested relief of the parties, the Committee 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, -304 and -305.

2. The following records are controlled if properly classified by a governmental entity: (1) the record contains medical, psychiatric, or psychological data about an individual; (2) the governmental entity reasonably believes that: (a) releasing the information in the record to the subject of the record would be detrimental to the subject's mental health or to the safety of any individual. See, Utah Code § 63G-2-304(2)(a).

3. The Committee listened to the 911 recording in camera. The Committee finds that based upon the information contained within the recording, the record was properly classified by Respondent as a controlled record pursuant Utah Code § 63G-2-304(2)(a).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nelson Brown 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 a parties’ 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. Utah Code § 63G-2-403(15)(d)(i)(B). 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 23rd day of July 2018

BY THE STATE RECORDS COMMITTEE

__________________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee