State Records Committee Appeal Decision 2020-39

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SALT LAKE LEGAL DEFENDERS ASSOCIATION, Petitioner, v.

UTAH DEPARTMENT OF PUBLIC SAFETY. Respondent.

DECISION AND ORDER

Case No. 20-39

By this appeal, Petitioner, the Salt Lake Legal Defenders Association, seeks access to records allegedly held by Respondent, the Utah Department of Public Safety.

FACTS

On or about January 9, 2020, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested numerous records relating to the Intoxilyzer 8000 used by the Utah Highway Patrol.

In a letter dated January 16, 2020, Respondent denied all but one of Petitioner’s requested items, noting that they were either protected pursuant to Utah Code § 63G-2-305(1), that they were not owned or maintained by Respondent pursuant to Utah Code § 63G-2-201 and -202, or that they were still in draft form pursuant to Utah Code § 63G-2-103.

Petitioner appealed the denial, and Respondent reiterated its position on the appeal denial. However, Respondent did attempt to facilitate Petitioner’s request by contacting the company that owned and maintained certain records, known as CMI. CMI responded by agreeing to permit the Petitioner to review the manuals at one of Respondent’s offices and take notes on the contents of the manuals for an unlimited period of time. CMI’s only restriction was that Petitioner would not be permitted to actually copy the copyrighted manuals.

Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). On August 27, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2).

2. GRAMA excludes from the definition of a record “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. After carefully considering the arguments of the parties, the Committee finds that the requested records relating to the Intoxilyzer 8000 are not considered “records” pursuant to GRAMA because they are copyrighted materials to which access is limited by the laws of copyright. See also, Jessop v. Dept. of Corrections, State Records Case No. 14-08 (May 19, 2014). Accordingly, Respondent is not required to produce the records to Petitioner under GRAMA.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Salt Lake Legal Defenders Association is hereby 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 8 day of September 2020.

BY THE STATE RECORDS COMMITTEE

PATRICIA SMITH-MANSFIELD
Chair, State Records Committee