State Records Committee Appeal Decision 2022-23

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NATE CARLISLE, Petitioner, v.

UTAH DEPARTMENT OF TRANSPORTATION, Respondent.

DECISION AND ORDER

Case No. 22-23

By this appeal, Petitioner, Nate Carlisle, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, Utah Department of Transportation (“UDOT”).

FACTS

On January 20, 2022, Mr. Carlisle made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from UDOT. Mr. Carlisle requested “a copy of the report(s) Deer Valley Resort filed concerning the mechanical failure on the Carpenter Express chairlift on or about December 24, 2021.” During the incident, 167 skiers had to be rescued, mostly with hoists lowering passengers out of their chairs. On January 27, 2022, UDOT’s Public Records Request Coordinator denied the request because UDOT classified the record as an “accident report” which is a protected record pursuant to Utah Code § 63G-2-305(38).

In a letter dated January 28, 2022, Mr. Carlisle filed an appeal with Carlos Braceras, Executive Director for UDOT. Mr. Carlisle argued that any records regarding the incident involving the chair lifts at Deer Valley Resort should not be considered “accident reports” pursuant to Utah Code § 63G-2-305(38). Mr. Carlisle further argued that even if the records had been properly classified as protected, the records should be released based upon the public’s right to know outweighing the need to protect the information.

Mr. Braceras denied Mr. Carlisle’s appeal in a letter dated February 14, 2022. Mr. Braceras stated that “an Incident Report is an accident report, and UDOT properly classified Incident Reports as protected records under § 63G-2-305(38).” Mr. Braceras further stated that the “public’s interest in knowing the minute technical details of an accident included in an Incident Report does not outweigh the importance of protecting that accident information from disclosure.”

Mr. Carlisle filed an appeal with the State Records Committee (“Committee”). On June 2, 2022, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties including reviewing the responsive record in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that a “record is 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. UDOT relies upon Utah Code § 63G-2-305(38) which states that “accident reports, except as provided in Sections 41-6a-404, 41-12a-202, and 73-18-13” are protected records if properly classified by a governmental entity. Additionally, the administrative rules for the Utah Passenger Ropeway Safety Committee (“Ropeway Committee”), created within UDOT pursuant to Utah Code § 72-11-202(1), state that a written report of every passenger ropeway incident shall be delivered to the Ropeway Committee within five days of the incident, and that these reports are protected records pursuant to Utah Code § 63G-2-305. See, Utah Admin. Code R. 920-50-14(1)(a) & (b).

3. The question before the Committee is whether “incident reports” as required under Utah Admin. Code R. 920-50-14(1)(a) constitute “accident reports” pursuant to Utah Code § 63G-2-305(38). A review of the Utah Code shows that the phrase “accident report” is only used in Title 41 “Motor Vehicles”, Title 53, Chapter 3 the “Uniform Driver License Act”, Title 54 “Public Utilities” for accidents occurring upon the property of a public utility, as well as in GRAMA in Utah Code §§ 63G-2-103(14)(c) (“Initial contact reports do not include accident reports, as that term is described in Title 41, Chapter 6a, Part 4, Accident Responsibilities”) and as stated previously -305(38).

4. A review of the legislative history of Utah Code § 63G-2-305(38) shows that it was originally passed in 2000 as § 63-2-304(38) in H.B. 243 “Protection of Accident Report” as “an act relating to motor vehicles; providing for the protection and confidentiality of accident reports…”

5. Based upon the plain language of Utah Code § 63G-2-305(38), the other references to “accident report” in the Utah Code, and the legislative history regarding the origins of Utah Code § 63G-2-305(38), the Committee finds that the legislative intent of -305(38) was to have “accident reports” apply only to reports of traffic and boating accidents. Therefore, the type of incident for which the present records request was made, is not an “accident report” pursuant to -305(38).

6. Additionally, the Committee reviewed the applicable records in camera. The Committee finds that even if the records were properly classified as protected records pursuant to Utah Code § 63G-2-305(38), the records should be released pursuant to the weighing provision found in Utah Code § 63G-2-403(11)(b) (The Committee may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order disclosure of information properly classified as protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access). See also, McKitrick v. Gibson, 2021 UT 48, 496 P.3d 147, fn. 11.

7. Accordingly, the Committee finds that UDOT improperly classified the responsive records as protected records pursuant to Utah Code § 63G-2-305(38). Further, even if the records had been properly classified as non-public records, the public interest favoring access is greater than the government’s interest restricting access. Therefore, the Committee finds that the requested records should be provided to Petitioner.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nate Carlisle, is hereby GRANTED.

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 13 day of June 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee