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What is the difference between GRAMA and Discovery?

September 6, 2016

What are the differences and how does a records officer respond to a Government Records Access and Management Act (GRAMA) request versus a Subpoena (U.C. 63G-2-207).  This question consistently comes up at every GRAMA training and draws a lot of class discussion.  Recently, at the Records Access II: Focus Group Discussion, we had the pleasure of inviting Mr. Paul Tonks, the Committee’s legal counsel, and Rosemary Cundiff, the government records ombudsman, as our guest GRAMA experts.  Together they were able to dissect and explain the two completely separate processes to the audience, starting with an explanation of the Committee’s ruling in Phillips v. West Jordan, Case No. 14-04. http://archives.utah.gov/src/srcappeal-2014-04.html

Rosemary Cundiff’s Response: It is common practice for some law enforcement agencies to deny a GRAMA request if the same records have already been provided to the same person through Discovery.  Agencies have also denied a GRAMA request if they know that person is requesting records for  Discovery.  In 2014, the law firm Schatz/Anderson & Associates challenged that practice by West Jordan Police Department and appealed to the State Records Committee in Phillips v. West Jordan, Case No. 14-04.

In this particular case, Jessica Phillips requested a copy of “any video and audio recording” from the West Jordan Police Department.  The point of the appeal was whether the request should be responded as a GRAMA request or through Discovery because of a current litigation.  The punch line of the order, is that the Committee concluded that the requested records were part of the initial contact report that is classified “normally public” under U.C. 63G-2-301(g).  Unfortunately, the agency did not expressly exempt the records from disclosure under one of the other subsections provided in GRAMA.  Essentially, the City argued that GRAMA does not trump the rules of criminal procedures and since South Jordan failed to restrict the records under GRAMA, therefore the records were deemed public and were ordered to be provided in response of the GRAMA request.  Discovery or litigation does not negate a person’s right to request and receive records through GRAMA.

Paul Tonks’ Response: GRAMA requests and Discovery are two separate processes and just because discovery is occurring, does not negate the GRAMA request.  The agency has to treat GRAMA and Discovery as two separate processes even though they are duplicative.  The best way to think of the two: when a person makes a GRAMA request, they are trying to access public records, in general.  In general, the GRAMA request will get the requester public records.  If the records are requested through Discovery only the relevant records pertaining to the court case will be provided.

Under the appeals process, if there are denials under GRAMA it goes through the chief administrative officer, state records committee, and maybe to court. If there is a denial under Discovery, it is under the authority of the court rules, objections are filed with court, the judge rules on those objections and makes the access determination.

GRAMA:

A requester is generally trying to access public records.

-It is an administrative matter governed by state statute.

-GRAMA has an appeals procedure for records access and fee denial.

Discovery:

-A person may receive nonpublic records that are relevant to a case that is pending in court.

-It is a judicial matter conducted completely by the courts.

-The appeals process for Discovery is through the judge.

We hope this explanation clears up the confusion, or at the very least, has created new questions and discussions for future GRAMA classes.  Please submit questions to Nova Dubovik at ndubovik@utah.gov and they will be forward to the government records ombudsman.

Categories: GRAMA
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