State Records Committee Appeal Decision 2023-45

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DAVID REYMANN (Utah Investigative Journalism Project), Petitioner, vs

UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent,

DECISION AND ORDER

Case No. 23-45

By this appeal David Reymann, attorney for Utah Investigative Journalism Project (“Petitioner”), requests records allegedly held by, Utah Department of Public Safety (“Respondent”).

FACTS

On January 24, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). The Petitioner requested all records Utah Police Officer Standards and Training (“POST”) had relating to law enforcement officer certification in Utah. Specifically, the request’s terms were for:

  • All certified officers. Records listing or otherwise identifying all law enforcement officers who are actively certified as of the date of this request (or when the request is processed), including historical records of previously certified officers who are no longer active and correctional officers who are also certified.
  • Decertified officers. Records listing or otherwise identifying all law enforcement officers who have been decertified through revocations, voluntary surrenders, suspension, or any other actions, including records for decertified correctional officers.
  • All records and documentation necessary to understand and interpret the data produced by POST in response to the foregoing and below data points, including, but not limited to record layouts, data dictionaries, code sheets, lookup tables, etc.

With respect to the records relating to certified officers, Petitioner specifically requested records that contain one or all of the following data elements:

  • Officer unique ID number
  • POST or state certification ID number
  • Officer’s full name
  • Officer’s date of birth or year of birth or current age
  • Officer’s city and/or zip code of residence
  • Officer’s last/current department or agency
  • Officer’s last/current department or agency start date
  • Officer’s last/current position and/or rank at that department or agency
  • Officer’s previous departments/agencies (employment history), with start and end dates
  • Officer’s positions and/or ranks at previous departments or agencies
  • Officer’s original date of certification
  • Current status of certification (active, lapsed, expired, suspended, etc.)
  • Last action taken on certification
  • Date of last action on certification
  • Disciplinary actions taken against this officer’s certification
  • Dates of disciplinary actions taken against this officer’s certification
  • Training history/additional certifications of this officer, if available

With respect to the records relating to decertified officers, Petitioner specifically requested records that contain one or all of the following data elements:

  • Officer unique ID number
  • POST ID number
  • Officer’s full name
  • Officer’s date of birth or year of birth or current age
  • Officer’s city and/or zip code of residence
  • Officer’s last department/agency, with start and end date
  • Officer’s last position and/or rank at that department or agency
  • Decertification action taken (revocation, suspension, voluntary surrender, etc.)
  • Date decertification action taken
  • POST case number, if applicable
  • Reason for decertification or similar action

On February 7, 2023, POST responded. With respect to the request relating to certified officers, the Respondent stated that police certification records that identify the officer’s employing agency are classified as protected under Subsection 63G-2-305(11), and because some officers may be undercover, the request is also denied under Subsection 63G-2-202 and -205.

With respect to the request relating to decertified officers, the Respondent found some responsive documents that were delivered; however, it denied the rest on the grounds that the records contained information protected under Subsections 63G-2-305(10), -305(18), and -305(22). Additionally, the Respondent claimed some of the information was classified as private under Subsection 63G-2-302(2)(d).

With respect to the third request, the Respondent stated that it does not possess any records that may help to understand or interpret the data. Consequently, the request was denied.

On March 9, 2023, Petitioner appealed the Respondent’s decision to its chief administrative officer (“CAO”). They upheld the Respondent’s decision and denied Petitioner’s appeal.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On August 28, 2023, 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. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

ISSUES FOR REVIEW

The question before the Committee is whether the requested records must be disclosed.

STATEMENT OF REASONS FOR DECISION

A. The Respondent Owns the Records for Purposes of GRAMA Requests

Under the GRAMA, “a person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours. . . .” Utah Code § 63G-2-201(1)(a). Subsection 103(25)(a) defines record as, among other things, “. . . electronic data or other documentary material regardless of physical form or characteristics: (i) that is prepared, owned, received, or retained by a governmental entity . . .; and (ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.” Utah Code § 63G-2-103(25)(a)(i)-(ii).

The Respondent argues before this Committee that the information Petitioner seeks is housed in a shared database referred to as ACADIS. This database is the product of a contract between the State of Utah and the database provider, and is used by law enforcement agencies in Utah for multiple uses such as training, testing, storing documents, compliance, and other needs for officers. ACADIS is a shared database, meaning that it’s accessed and used by numerous other law enforcement agencies and departments, not just the Respondent and POST. It is the various agencies that upload and utilize the system for their own purposes; thus, POST itself does not upload information into ACADIS for all of the state’s officers. Because of this, the Respondent argues, it does not own or retain the records Petitioner seeks. Consequently, it is not responsible to fill the request.

We acknowledge the problem that shared databases create under the GRAMA and believe it’s an issue the legislature must resolve. However, until then, we must figure whether the Respondent is responsible for the records in the shared database. When the State of Utah contracts with a private vendor for a technology service, such as a database, the public contract holds the State, including its various departments, as owners of the information supplied to the contractor in performance of the contract. This means that, by virtue of the State’s contract with ACADIS’s provider, the Respondent is an owner of the records uploaded into the database.

This conclusion is bolstered by three different facts. First, it’s undisputed that the Respondent has access to ACADIS and the information being sought. Second, the ACADIS website itself states, “The POST is required to maintain all training, certification and employment records for the 9,280 officers who are part of the 210 law-enforcement and related agencies.” Utah POST Increases Ease and Accuracy of Reporting Vital Training Data, (Aug. 31, 2023, 2:50 PM), https://www.acadis.com/customer-stories/utah-post-academy. Together, with the Respondent sharing ownership of the uploaded information by way of the State’s contract with the vendor, we find that the Respondent owns the requested records pursuant to Subsection 103(25)(a). As owner of the records, it has a duty to deliver responsive records under the GRAMA.

B. The Records Must Be Properly Classified and Disclosed

Upon finding that the Respondent owns the requested records for purposes of GRAMA requests, we turn now to whether they must be disclosed.

A record is considered a public record unless expressly provided by statute, and a record that is private, controlled, or protected under Sections 63G-2-302, -303, -304, or -305 is not a public record. Utah Code §§ 63G-2-201(2)-(3)(a). However, if a public record contains, in part, some private, controlled, or protected information, the non-public information may be redacted to fill the request and keep in accordance with the GRAMA’s intent “promote the public’s right of easy and reasonable access to unrestricted public records.” Utah Code §§ 63G-2-308 and 102(3)(a).

The Respondent argues that even if it owns the requested records, it still cannot disclose them to Petitioner because they are protected under the GRAMA. The Respondent supports this argument by the fact that the requested records contain the identities of numerous undercover officers and to disclose them would necessarily jeopardize their safety.

True as that may be, we cannot agree that all requested records may be withheld merely because some records within the batch are protected. We are sensitive to the issue of the undercover officers’ identifiable information; however, the Respondent’s argument goes too far. Within the requested records there is most certainly information the GRAMA would classify as a public record. These records cannot be lost amidst the arguments over protecting undercover officers’ information. On the other hand, we presume, without making a determination, that there are records within the database that hold protected or private information. Therefore, the only path forward is to compile the requested records and make a determination concerning their classifications. We acknowledge the amount of work that would entail, but the GRAMA provides no relief to governmental entities for the mere fact that the requester seeks a voluminous amount of records. Accordingly, we find that the Respondent must retrieve the responsive records. From there, it must respond to the request in accordance with provisions the law sets forth. Once the records are delivered to Petitioner, it is at that point where classifications may be challenged and be brought before this Committee.

C. The Committee Will Retain Jurisdiction Over the Issues Until Final Compliance or Appeal

Our order below carries some logistical considerations. As a result, we must take a moment to explain the parameters surrounding it.

First, our regulations require that “each governmental entity ordered by the Committee to produce records shall file with the Executive Secretary [ ] a notice of compliance . . . no later than the 30th day following the date of the Committee Order.” Utah Administrative Rule R35-4-2(2). Because the requested records are voluminous, it may not be possible for the Respondent to comply with this order within 30 days. Therefore, for purposes of satisfying R35-4-2(2), the parties are to negotiate a deadline by which the records must be produced. Once a deadline is agreed upon, the Respondent may submit its notice of compliance to the Executive Secretary to satisfy the regulation. Notwithstanding that notice, however, this order will remain effective and a second and final notice of compliance must be filed with the Executive Secretary within 30 days of the Respondent producing the records.

If, upon compiling the responsive records, the Respondent believes it proper to make certain protective classifications and redactions in accordance with the GRAMA, it may do so. If Petitioner desires to appeal any withholdings or redactions, it may do so, and we will hear that appeal.

We also note that some discussion has been had about whether a fee may be charged to Petitioner to fill this request. Similar to the records’ classifications, we find it premature to address this issue at this point. If the Respondent decides a fee is warranted, and Petitioner wishes to challenge the fee, Petitioner may bring that issue before the Committee.

Thus, to be clear, Petitioner’s record request may hold several issues that eventually need to be decided, but, for now, we review only the one we’ve resolved. The others are not yet ripe for our review but we preserve the parties’ rights to have them heard if and when they ripen. Therefore, if the Respondent appeals this order to district court for review, absent any exceptional circumstances the court might find, the Committee will retain jurisdiction over the issues of the records’ classifications, possible redactions, and any assessed fees as those issues have not yet been addressed before the Committee. See Utah Code § 63G-2-404(2)(b) (“Except in exceptional circumstances, a petition for judicial review may not raise an issue that was not raised in the underlying appeal and order.”). Additionally, as it pertains to the issue we have decided, if the Respondent files its notice of compliance indicating a date has been agreed upon for the records production, the Committee will still retain jurisdiction over this order to ensure that full and final compliance with this order has occurred, that being the production and delivery of the requested records. See Career Service Review Bd. v. Utah Dept. of Corrections, 942 P.2d 933, 946 (Utah 1997) (“Until an appeal was perfected the Board retained jurisdiction and had the inherent authority to reconsider and modify its 1993 Order in light of subsequently discovered facts.”).

ORDER

THEREFORE, Petitioner’s appeal is hereby GRANTED. The Respondent is ordered to retrieve the responsive records, properly classify them, redact any private, controlled, or protected information according to the proper classifications, and, if no fee will be assessed for the records, provide them to Petitioner.

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 6 day of September 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee

 

Page Last Updated September 7, 2023 .