State Records Committee Appeal Decision 2022-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL AMANN, Petitioner, v.

UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.

DECISION AND ORDER
Case No. 22-09

By this appeal Petitioner, Paul Amann, is requesting records allegedly held by Respondent, Utah Department of Public Safety ("DPS").

FACTS

In a document dated August 26, 2021, Mr. Amann made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Bureau of Criminal Identification (“BCI”) within DPS. Mr. Amann requested “[a]ny and all records” regarding a specified individual including records of applications, communications, and correspondence involving that individual. After the time for response had expired, Mr. Amann filed an appeal with DPS Commissioner Jess L. Anderson in a letter dated September 14, 2021.

In a letter dated September 27, 2021, Melanie Marlowe, Quality and Process Improvement Director for DPS, denied Mr. Amann’s records request. Ms. Marlowe stated that the records were not public records pursuant to Utah Code §§ 63G-2-201(3)(b), 53-10-108, 63G-2-302(2), 63G-2-301(2)(b), 63G-2-301(3)(o), 63G-2-301(1)(b), 63G-2-305(12), and 77-40-109(2)(a).

On October 27, 2021, Mr. Amann filed an appeal with the State Records Committee (“Committee”). On February 17, 2022, the Committee held a public hearing during which the parties were allowed to present evidence and arguments to the Committee. After having carefully considered the written and oral arguments provided by both 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). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-201(3)(a), -302, -303, -304 and -305. Records to which access is restricted pursuant to another state statute are considered non-public records pursuant to GRAMA. Utah Code § 63G-2-201(3)(b)

2. In his first records request, Mr. Amann requested “[a]ny and all records” regarding a specified individual including “any applications for a logon, any logon, and any other records relevant” to the named individual. Mr. Amann also requested any and all information regarding the person’s access to the Utah Criminal Justice Information System (“UCJIS”). DPS argued that potentially responsive records are restricted from public access pursuant to Utah Code § 53-10-108, but that no responsive records were found because the records are beyond their three-year retention period. After having carefully considered the evidence presented by the parties, the Committee finds that for Mr. Amann’s first records request, DPS does not possess responsive records and if records were found, they would not be public records subject to disclosure pursuant to Utah Code § 53-10-108.

3. In his second records request, Mr. Amann requested all records by a specified individual or on behalf of the specified individual “submitting applications” to BCI for expungement. The Utah Expungement Act states that BCI “shall keep, index, and maintain all expunged records of arrests and convictions.” Utah Code § 77-40-109(1). It further states that employees of BCI “may not divulge any information contained in the bureau’s index to any person or agency without a court order unless specifically authorized by statute.” Utah Code § 77-40-109(2)(a). Records under the Act are classified as protected under Utah Code § 63G-2-305 and are only accessible as provided under Part 2 of GRAMA. Utah Code § 77-40-109(6). The Committee finds that records responsive to Mr. Amann’s second records request are subject to the Utah Expungement Act and Mr. Amann has not demonstrated that he is entitled to receive any protected records held by DPS related to an expungement.

4. In his third and fourth records requests, Mr. Amann requested “all records of communications/correspondence” regarding a specified individual, and “[a]ll records to/from anyone in the Utah Attorney General’s Office, and/or Internet Crimes Against Children Task Force” regarding a specified individual. Counsel for DPS argued that these records requests were too broad because DPS consists of 11 divisions including the Driver License Division, and that a search of one year of e-mails for the person’s last name returned 5,612 results. When using the eight full names listed by Mr. Amann in his records request, 17,586 results were returned for the one-year period. DPS estimated that searches for responsive records would take approximately 4.396 hours. Additionally, the State of Utah currently employs two individuals with the same first and last name as the person requested by Mr. Amann, and many other similar names regarding the requested individual resulting in a direct cost of approximately $112,000 to search, compile, and evaluate the searched records.

5. A person making a request for a record shall submit to the governmental entity that retains the record, a written request that describes and identifies the record “with reasonable specificity.” Utah Code § 63G-2-204(1)(a)(ii). The Committee finds that after a review of Mr. Amann’s third and fourth records requests, the requests were not reasonably specific. Accordingly, DPS was not required to fulfill Mr. Amann’s third and fourth records requests.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul Amann, 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 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 28th day of February 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee