State Records Committee Appeal Decision 2019-28

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JUDITH ZIMMERMAN, Petitioner, v.

UTAH DEPARTMENT OF HEALTH, Respondent.

DECISION AND ORDER

Case No. 19-28

By this appeal, Petitioner, Judith Zimmerman, seeks access to records held by Respondent, the Utah Department of Health (“Department”).

FACTS

On May 30, 2019, Ms. Zimmerman made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Zimmerman requested records relating to original, signed copies of an e-mail chain that involved previous Department employees. In response to her request, Ms. Zimmerman was contacted on May 31, 2019 and informed that her request had been received. On June 14, 2019 the Open Records Portal sent an automatic notification to Ms. Zimmerman, informing her that the time period allotted to her request (10 days) had expired and as a result her request was being treated as a denial in compliance with Utah Code § 63G-2-205.

On June 18, 2019, Ms. Zimmerman appealed the automatic denial to the chief administrative officer of the Department. Thereafter Ms. Zimmerman was notified that records responsive to her request were being compiled and that the Department intended to fulfill her records request. On June 20, 2019, records were provided to Ms. Zimmerman. In a letter dated June 26, 2019, Joseph K. Miner, Executive Director for the Department wrote that he believed the Department “has fulfilled its obligation in responding to our request.” However, Ms. Zimmerman believed that records responsive to her request had not yet been provided by the Department, so an appeal was filed with the State Records Committee (“Committee”) on June 30, 2019. After hearing oral argument and testimony on August 8, 2019, 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. Ms. Zimmerman testified that she believed the Department had additional records to disclose including a specific contract which should have been found by the Department when they did a search of their e-mails. Contracts entered into by a governmental entity are normally public to the extent that the contract is expressly exempt from disclosure. Utah Code § 63G-2-301(3)(d).

3. After hearing the arguments by both parties, the Committee was not convinced that the Department had thoroughly examined all of its records in order to find all records responsive to Ms. Zimmerman’s records request. Specifically, testimony from the Department showed that the Department’s Google E-Mail Vault had not been searched, and that because of this, there is a potential that public records that have not already been disclosed to Ms. Zimmerman may be located within the vault.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Judith Zimmerman, is hereby GRANTED in that Respondent, the Utah Department of Health shall conduct a more thorough search of its Google E-Mail Vault and its other records for possible communications to determine whether public records responsive to Ms. Zimmerman’s records request exist and then provide them to Ms. Zimmerman in compliance with GRAMA.

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 19th day of August 2019

BY THE STATE RECORDS COMMITTEE

_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee