Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2008-18

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

INVESTIGATIVE RESEARCH, Petitioner,

vs.

UTAH DEPARTMENT OF TRANSPORTATION, Respondent.

DECISION AND ORDER

Case No. 08-18

By this appeal, Keith Sobraske seeks access from the Utah Department of Transportation (“UDOT”) to any records concerning: (1) Traffic Volume Studies, Engineering Studies, Speed Studies, Accident Studies, Barricade Studies, Sign Studies, or other reengineering studies conducted for U.S. 163, mile post 28 to mile post 30; (2) the historical installation, removal and/or replacement of traffic signage on U.S. 163; and (3) changes in roadside devices, such as barricades, barrier walls, wood guide posts or roadside markers on U.S. 163.

FACTS

On August 4, 2008, Mr. Sobraske made a request of UDOT pursuant to the Utah the Government Records Access and Management Act (“GRAMA”). He stated that he was an “investigator conducting an investigation on behalf of victims of the Arrow bus crash that occurred on January 6, 2008 at MP 29 on U.S. 163 (aka SR 163), northeast of Mexican Hat, Utah.” Jana Rasmussen, Executive Secretary/GRAMA Coordinator for UDOT denied Mr. Sobraske’s request in a letter dated August 13, 2008 on the basis that “it has been determined that this falls under Protected Records” pursuant to Utah Code Ann. § 63-2-304(16).

Mr. Sobraske appealed UDOT’s denial arguing that it was unreasonable for UDOT to conclude that all of the requested records from 1963 to the present could have been prepared solely in anticipation of litigation pursuant to Utah Code Ann. § 63-2-304(16). In a letter dated September 22, 2008, Renee Spooner, a Utah Assistant Attorney General representing UDOT, stated that the records were not public records “because access is restricted pursuant to federal statute.” Ms. Spooner thereafter wrote that UDOT “will not release these records to you.” On October 21, 2008, Mr. Sobraske appealed UDOT’s denial to the State Records Committee (“Committee”). Having reviewed the materials submitted by the parties and having heard oral argument and testimony on November 13, 2008, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303 and -304.

2. Utah Code Ann. § 63G-2-201(6)(a) states that the “disclosure of a record to which access is governed or limited pursuant to …federal statute, or federal regulation, including a record for which access is governed or limited as condition of participation in a state or federal program or for receiving state or federal funds, is governed by the specific provisions of this statute, rule, or regulation.”

3. UDOT argued that 23 U.S.C. § 409 applied to the present case. It states in part: “[R]eports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to [23 USCS §§ 130, 144, and 148] shall not be subject to discovery or admitted into evidence in a Federal or State Court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.”

4. UDOT claimed that the phrase “not …subject to discovery” also included discovery through public records requests. Mr. Sobraske argued that “discovery” applied only to discovery under Federal or State Civil Rules of Procedure in a lawsuit and did not forbid disclosure through a GRAMA request.

5. UDOT also presented three court cases to be considered by the Committee for the proposition that “discovery” under 23 U.S.C. § 409 includes public records requests: Pierce Cty v. Guillen, 537 U.S. 129 (2003); Ex parte Ala. Dept. of Trans., 757 So.2d 371 (Ala. 1999); Seaton v. Johnson, 898 S.W.2d 232 (Tenn. 1995).

6. After hearing arguments from both parties and reviewing all applicable statutes and cases, the Committee finds that the requested records are public and should be disclosed. The public’s right to access information concerning the conduct of the public’s business outweighs the public policy interest in allowing UDOT to restrict access to certain records “for the public good.” See, Utah Code Ann. § 63G-2-102(1)(a); § 63G-2-102(2).

7. The Committee recognizes the authority of the United States Congress to restrict access to public documents including records held by state entities like UDOT. However, a plain reading of 23 U.S.C. § 409 does not mandate that all records “compiled or collected” pursuant to 23 U.S.C. §§ 130, 144, or 148 cannot be disclosed through a public records request. If this was the intent of Congress, 23 U.S.C. § 409 would have included words such as “not subject to a public records request” or “not subject to a request pursuant to the Freedom of Information Act.”

8. The Committee also finds that the Alabama and Tennessee cases cited by UDOT are persuasive, but not binding upon Utah Courts, and can be distinguished from the facts of the present case.

9. The intent behind 23 U.S.C. § 409 was stated in the Congressional Record as follows: “It is intended that raw data collected prior to being made part of any formal or bound report shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such data” Ala. Dept. of Trans., 757 So.2d at 374. Disclosure of the requested records through a public records request is not contrary to the expressed intent of Congress to exclude the records from Federal or State court proceedings or any action for damages because even after the records have been obtained, courts still have the ability to exclude the records from being considered as evidence in court proceedings. As stated by the United States Supreme Court, “Congress wished to make clear that [23 U.S.C. §148] was not intended to be an effort-free tool in litigation against state and local governments.” Pierce Cty., 537 U.S. at 146.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Keith Sobraske is granted. The Utah Department of Transportation is hereby directed to, within ten (10) days of receipt of this Order, release the responsive documents within its control sought by Petitioner.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) a notice of intent to appeal. If the government entity 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies entities.

Entered this 20th day of November 2008.

BY THE STATE RECORDS COMMITTEE

____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee