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A Clearly Unwarranted Invasion of Personal Privacy

May 5, 2017 Comments off

Utah State Archives notes that the American Library Association has created Choose Privacy Week, an “annual, week-long event that promotes the importance of individual privacy rights and celebrates libraries and librarians’’ unique role in protecting privacy in the library and in society as a whole.” Much has been said about the value of government transparency, however, personal privacy is also important. The Government Records Access and Management Act (GRAMA) provides for both.

GRAMA provides that “a record is public unless otherwise expressly provided by statute” (Utah Code Subsection 63G-2-201(2)).  Then it includes lists of private records (Utah Code Section 63G-2-302). Other laws and rules identify and protect private information as well. Because all privacy issues cannot specifically be contemplated, GRAMA includes the provision that records are private if releasing them would be “a clearly unwarranted invasion of personal privacy” (Utah Code Subsection 63G-2-302(2)(d)). This is an interpretive provision allowing governmental entities to withhold access to information not specifically identified, but which they deem should be restricted to protect an individual’s privacy.

Privacy means different things to different people and because this law is interpretive, it can have broad application. For example, the law has been applied to an individual’s utility usage (such as water or electricity) and to juvenile names and images. State Records Committee decisions upholding a governmental entity’s privacy classification based on this provision provide a flavor for some of the ways it can be applied.

  • In September 2015, the Salt Lake Tribune requested from Utah State University all records involving student disciplinary actions in cases involving violent or sexual crimes in which a student was sanctioned. Specifically, the Tribune requested the student’s name, the nature of the violation, the date it was committed, and the sanction issued. In response, Utah State University provided the requested information but withheld student names. On appeal, the State Records Committee determined that releasing the names of individuals who were disciplined for violation of university codes of conduct would be a clearly unwarranted invasion of their privacy (State Records Committee Case No. 16-05).
  • In the April 2017 case, Andrew Becker v. Washington County Sheriff’s Office, the Records Committee determined that the release of an unredacted video image from a police officer’s body camera showing the face of a passenger in a DUI stop would constitute a clearly unwarranted invasion of personal privacy. After hearing testimony and viewing the records in camera, Committee determined that the Sheriff’s Office had appropriately redacted the video and could recoup the editing costs. (State Records Committee Case No. 17-15).
  • In July 2013, Mr. Leishman, an inmate, requested information about the security clearances of another inmate that related to that inmate’s religious practices as observed by staff in the Wasatch Family History Center offices. UDC provided no records because provision, by implication, would identify the individual. The State Records Committee determined that the information contained in the requested records involved the religious practices of a prison inmate, and their release would constitute a clearly unwarranted invasion of his personal privacy (State Records Committee Case No. 13-05) .
  • In May 2012, Kurt Danysh requested crime scene photographs and other records relating to the murder of Susan Gall. The State Records Committee was persuaded that all photographs depicting the victim, the inside of the victim’s home, as well as photographs depicting the perpetrator unclothed should be classified as private because release would be a clearly unwarranted invasion of personal privacy (State Records Committee Case No. 12-09).

See additional State Archives post about personal privacy.

How to find State Records Committee Decisions and Orders.

December 7, 2016 Comments off

Have you ever wondered how to find a State Records Committee (SRC) decision or order?  You can access the decisions and orders from the State Records Committee webpage.

Read more…

SRC September Round-up

October 5, 2016 Comments off

By Nova Dubovik on October 5, 2016.

The State Records Committee heard an unprecedented seven appeals on September 8, 2016.  You can locate the Decisions and Orders on the State Records Committee website and the meeting minutes and public handouts on the Utah Public Notice Website.

Clára v. Utah Transit Authority, Case No. 16-33,

Description: The Petitioner requested email correspondences between specified UTA employees. Granted in part, denied in part.

Sullivan v. Utah Department of Corrections, Case No. 16-34,

Description: The Petitioner appealed Corrections’ claim of extraordinary circumstances related to records requested. Denied.

Seamons v. Ticaboo Utility Improvement District, Case No. 16-35,

Description: The Petitioner  appealed district’s claim that it does not have records related to billing on lots that the requester owns in Ticaboo, Utah. Denied.

Salt Lake Tribune v. Provo City and Orem City Police Departments, Case No. 16-36,

Description: The Petitioner requested copies of the Spillman Case Access Logs showing BYU’s access to Provo City and Orem City Police Departments records.  Granted in part, denied in part.

Redd v. Utah Attorney General’s Office, Case No. 16-37,

Description: The Petitioner appealed the claim of extraordinary circumstances related to records requested. Denied.

Bryner v.Clearfield City, Case No. 16-38, Description:  Continuance.

If you have any questions on these cases or others, please submit them to grama@utah.gov

Draft or Record?

June 28, 2016 1 comment

Do you get GRAMA requests for drafts? Do you wonder if your drafts are records or not? What about the classification of drafts? Look no further!

Our wonderful Records Ombudsman, Rosemary Cundiff, has added an article to the Government Records Ombudsman website to help you analyze and classify the drafts created by your office.

This guideline can help you understand when a draft is protected vs. public as well as decisions from the State Records Committee when drafts were the subject of the hearing.

Rosemary is a great resource for government records officers who are responding to records requests. She can be reached at (801) 531-3858 or rcundiff@utah.gov.

PDF: classifying-drafts

 

Navigating the GRAMA Appeals Process

July 19, 2012 Comments off

A GRAMA request is a written request for access to government records pursuant to Utah’s Government Records Access and Management Act.  A governmental entity that receives a request can respond in one of the following ways: 1) provide the requested record, 2) provide a notice of denial that explains why all or part of the record should be withheld, 3) provide a referral if they do not have the record, or 4) provide notification that because of extraordinary circumstances more time will be required in order to respond (Utah Code 63G-2-204(3)).

If the requestor is not satisfied with the response, GRAMA has provided a way to appeal. Here is how to navigate that process.  

What can be appealed?

1. Denial of access to records can be appealed. Disagreement over restricted access based on the record’s classification or a confidentiality agreement is the most common reason to appeal a notice of denial. Since all records are presumed to be open to the public unless there is a reason in law to restrict access, the governmental entity’s notice of denial should include reference to the law that authorizes restriction. The legal reference will provide justification for the governmental entity’s reason for denying access and also a basis upon which the requester can respond.

Restricted classification is not the only reason for denying GRAMA requests. For example, an entity may claim that it does not have any records responsive to the request, or that the request is too broad. An entity may deny a request if it duplicates an earlier request from the same person. Any of these denials can be appealed. A requester can argue, for example, that the request is not too broad or that the governmental entity does have records it claims not to have.

2. Denied requests for fee waivers or reductions can be appealed. Although a governmental entity cannot charge for allowing someone to inspect a public record, GRAMA provides details about fees that can be charged for responding to GRAMA requests (Utah Code 63G-2-203). The spirit of the law is that access to records should be provided as reasonably as possible while still allowing government to recoup direct costs associated with providing records. Governmental entities are encouraged, though not required, to waive fees for GRAMA requests if releasing the record is in the public interest, if an impecunious person’s legal rights are affected, or if the requester is the subject of the record. Because determining public interest as well as setting reasonable fees is subjective a governmental entity’s decision about fees is subject to appeal.

3. Claims of extraordinary circumstances can be appealed. GRAMA specifically identifies a number of extraordinary circumstances which, if present, can be the basis for extending the deadline for responding to a records request (Utah Code 63G-2-204(5). When extraordinary circumstances are present the governmental entity should advise a requester when to expect a response. A requester who believes that extraordinary circumstances do not exist or that the timeframe for response is unreasonable can make an appeal.

What is required to make an appeal?

GRAMA outlines an appeals process that can be applied when a records request does not result in the satisfactory production of records. The basis for every appeal is the written copy of the original request or requests along with the notice or notices of denial. These records document the request and corresponding response, and establish a foundation for appeal. Utah Code 63G-2-401(2) states, “The notice of appeal shall contain the following information: (a) the petitioner’s name, mailing address, and daytime telephone number; and (b) the relief sought.”

The appeal should include the requester’s argument, including a statement of the facts, reasons, and legal authority that support the requester’s position (Utah Code 63G-2-401(3)). If a requester appeals a denial based on the entity’s statement that responsive records do not exist, then the appeal must include some evidence that the records do or should exist. If an appeal challenges denial based on a particular restricted classification then the appeal should substantiate why the entity’s classification is inappropriate. When fees are at issue, a requester may explain why filling the request without charge is in the public interest or explain another appropriate reason. The appeal should include the requester’s best argument for why his or her request should be granted.

To whom is appeal made?

1. The first appeal is made to the chief administrative officer. (see Utah Code 63G-2-401) Each denial notice must state that the requester has the right to appeal with instructions for making an appeal to the chief administrative officer (CAO). The CAO is the highest ranking member of the governmental entity. For example, in state government it is the division director or department head. A mayor or city manager is the CAO for a municipality.

Upon receiving the appeal, the chief administrative officer will weigh options and make a determination. It is worth noting that the chief administrative officer is authorized to disclose records that are properly classified as private or protected if he or she believes that, in the specific instance, interests favoring disclosure are greater than or equal to the interests favoring restriction. This allows him or her to satisfy a specific request without generally overruling the restricted classification that has been applied to a set of records.

If the CAO does not release the requested records, he or she must provide a written notice of denial. The notice must include the statement that the requester has the right to appeal the denial either to the State Records Committee or to district court. If the request is for multiple records the requester may ask for an inventory of the records being denied along with the associated reason for denial in each instance.

This process is tempered by the fact that, because GRAMA provides local governments the opportunity to adopt ordinances or policies applicable within their jurisdictions, some local governments have, by ordinance, established a separate appeals board. If the request is to a local government that has established a board other than the State Records Committee, then the notice of denial will provide alternate instructions for appeal. Local government records ordinances or policies are filed with the State Archives. (see local government ordinances)

2. The second appeal is directed to the State Records Committee. (see Utah Code 63G-2-403) The CAO’s denial notice must include notice of the requester’s right to appeal to the State Records Committee or other local appeals board and provide time limits for making the appeal. The State Records Committee, which typically meets monthly, is made up of people from diverse backgrounds in order to provide different perspectives. A request for a hearing should be directed to executive secretary, Susan Mumford. Upon receipt, Susan will schedule a hearing at a regularly scheduled meeting. Alternately, appeals can be made to the district court.

How does the State Records Committee appeals process work? 

1. A hearing is scheduled. A request for a State Records Committee hearing should include notices of denial from both the records officer and the chief administrative officer as well as copies of the original records requests. In addition the request should include a short statement of the facts, reasons, and legal authority why the appeal should be granted. The request must also include the petitioner’s name, mailing address, and daytime telephone number.

All of these should be mailed to:  State Records Committee Executive Secretary

Susan Mumford

346 South Rio Grande Street

Salt Lake City, Utah84101

On the same day that a petitioner requests a hearing, he or she must also provide a copy of the appeal to the governmental entity to put them on notice. This will allow government time to prepare for the hearing. Within five days of receiving the request, Susan will schedule a hearing and will notify both the petitioner and the governmental entity of the hearing date.

2. Arguments are shared. After scheduling the hearing, Susan will send the notice of appeal with its supporting documents and statement to everyone who was involved in the GRAMA request process, and also to each member of the State Records Committee, as well as to anyone who made a business confidentiality claim associated with the request .

Before the hearing the governmental entity will provide a written statement of its argument supporting denial. All involved parties, including committee members, will be able to review arguments supporting both positions before the hearing. If the denial involves denial of access to records, the governmental entity must bring the records in question to the hearing.

3. A hearing is held. At every State Records Committee hearing both sides are allowed to testify and present evidence in support of their position. Beginning with the petitioner, each side is allowed to make a five-minute opening statement, after which each side is allowed twenty or thirty minutes to develop an argument. Committee members will ask questions as they arise. The committee may allow witnesses to testify or other interested parties to comment. If they choose to do so, committee members may review requested records in camera (closed session). On both sides, a clearly defined objective and a well prepared oral argument is very helpful to the process.

At the conclusion of each hearing committee members openly deliberate on the matter before them until a committee member formulates a motion. If the motion is seconded the committee will discuss and then vote on it. If the motion passes with a majority vote, then that motion will be drafted into an order. If the motion fails, then the committee will continue to deliberate until an alternate motion becomes successful.

4.  The Committee’s decision is drafted into an order.  Representative counsel from the Attorney General’s office is present at every State Records Committee hearing to provide support and draft orders. After each hearing the State Records Committee issues an order expressing the determination of the committee. A governmental entity that does not wish to comply with an order to disclose records may appeal the State Records Committee’s decision in district court. Likewise, a petitioner may continue to pursue a denied appeal in district court.

The State Records Committee has been listening to GRAMA request appeals since GRAMA was enacted in 1992. Each of the committee’s decisions and orders is posted on the Utah State Archives website. These decisions and orders can be a model and a resource for both government and the public as similar situations arise. (see State Records Committee Decisions and Orders)

Anyone who needs help with the GRAMA appeals process is invited to contact the state records ombudsman, Rosemary Cundiff at (801) 531-3858 or rcundiff@utah.gov.

State Records Committee Meeting Minutes (1992-2009) are Available Online

September 22, 2011 Comments off

First Meeting Minutes, September 30, 1992

The first State Records Committee (SRC) meeting was held on September 30, 1992. The committee will celebrate its 19th birthday this month. In the years following the first meeting, the SRC heard approximately 238 cases, an average of 12.52 cases per year. Meeting minutes from 1992- 2009 are now available online. Decisions and Orders of the SRC from 1992- present are also available online.

SRC hears appeal cases from governmental entities throughout Utah. Meetings are held once a month, usually the second Thursday of each month, at the Utah State Archives building in Salt Lake City, UT.The current executive secretary is Susan Mumford and the committee chair is Betsy Ross. The SRC has seven committee members appointed by the governor. Three of the members represent state agencies, one is an elected official of a governmental entity, and the remaining three members represent the media, the public and private records management. Committee decisions are reached by majority vote. All SRC meetings are open to the public.

The SRC hears cases for all types of state government records. Examples include: police records, employee personnel files, parole records, investigation files, property records, tax information, and state contract records. Since 1992, the most commonly disputed records have involved employee personnel records. Of the approximately 238 cases heard by the SRC an estimated 7.14 percent, or 17 cases, have involved employee personnel records. At 6.30 percent, 15 cases involved records that do not fit easily within specified GRAMA categories. Requests for inmate records are the third most requested records at 4.62 percent or 11 requests over a 19-year period.

More appeals for hearings are received by the committee than are scheduled.

Since 1992 the SRC has issued the following decisions: