Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2009-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAMELA MANSON, SALT LAKE TRIBUNE, Petitioner, vs.

UNIVERISTY OF UTAH , Respondent.

DECISION AND ORDER

Case No. 09-03

By this appeal, Pamela Manson, Reporter for the Salt Lake Tribune (“Tribune”), seeks access from the University of Utah (“University”), to records pertaining to a settlement agreement between the University and Lisa A. Speckman.

FACTS

On October 30, 2008, Pamela Manson on behalf of the Tribune made a request under the Utah Government Records Access and Management Act (“GRAMA”) to the University for records concerning the amount paid for the settlement by the University, its insurers, its entities, or any other public agency with Ms. Speckman. The Tribune also asked for any records of policy changes or other actions taken in order to settle the Speckman case.

In a letter dated November 13, 2008, Brian Watts, Associate Counsel for the University, denied the Tribune’s request. Mr. Watts stated in his letter that the Federal Health Insurance Portability and Accountability Act (“HIPAA”) broadly defines “protected health information” and controls whether records responsive to the Tribune’s request could be released. Mr. Watts wrote that the University could not release the documents because GRAMA was inapplicable to “a record containing protected health information as defined in 45 C.F.R., Part 164, Standards for Privacy of Individually Identifiable Health Information” pursuant to Utah Code Ann. § 63G-2-107. Mr. Watts further stated that disclosing the dollar amount of a settlement agreement would violate HIPAA law and, therefore, the request must be denied.

On December 9, 2008, the Tribune appealed the denial to Gregory C. Thompson, Record Officer for the University, who denied the appeal by letter dated December 19, 2008, citing again to Utah Code Ann § 63G-2-107 and HIPAA as the basis for the denial. The Tribune now appeals the University’s decision to deny access to records to the Utah State Records Committee (“Committee”). Having reviewed the materials submitted by the parties and having heard oral argument and testimony on March 12, 2009, the Committee now issues the following Decision and Order.

MOTION TO DISMISS BY THIRD PARTY

It should first be noted that a motion/request to dismiss was filed by an attorney representing Ms. Speckman. In the letter submitted to the Committee, it was argued that release of any information would be a violation of Ms. Speckman’s privacy rights.

While the protection of Ms. Speckman’s privacy interests are an important consideration of the Committee, the Tribune also has a right to have the Committee consider its appeal pursuant to Utah law. After careful deliberation, the Committee finds that insufficient evidence was presented to warrant a dismissal of the Tribune’s appeal. Accordingly, Ms. Speckman’s Motion to Dismiss is denied.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies “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, -304, and -305.

2. Utah Code Ann. § 63G-2-305(33) states that records that would reveal the contents of settlement negotiations are protected records if properly classified by a governmental entity, but excludes “protected record” status for records of “final settlements or empirical data to the extent that they are not otherwise exempt from disclosure.”

3. Utah Code Ann. § 63G-2-107 states in part that “this chapter does not apply to a record containing protected health information as defined in 45 C.F.R., Part 164, Standards for Privacy of Individually Identifiable Health Information, if the record is: (1) controlled or maintained by a governmental entity and (2) governed by 45 C.F.R., parts 160 and 164, Standards for Privacy of Individually Identifiable Health Information.”

4. The University claimed disclosure of the amount of settlement in the Speckman case directly related to the medical condition or treatment of an “identified individual” and would therefore be forbidden by Federal HIPAA rules.

5. The Committee, having heard argument from both parties, finds pursuant to Utah Code Ann. § 63G-2-305(33), that the records responsive to the Tribune’s request relate to the final settlement of a case filed in a District Court and not to the medical condition or treatment of an identified individual. Therefore, the settlement amount paid by the University is not governed by HIPAA. Disclosure of the dollar amount of the settlement in this case will not disclose information related to the past, present, or future medical condition or treatment of Ms. Speckman.

6. Accordingly, the Committee finds that the records requested by the Tribune are public pursuant to Utah Code Ann §§ 63G-2-201(2) and -305(33).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of the Tribune is affirmed in part as it relates to records responsive to the dollar amount of the settlement in Lisa A Speckman v. IHC Hospitals, et all, Utah 3rd Dist. Ct. Case No. 060914542. Inasmuch, as any other information contained in the records may contain information that may be directly related to the medical condition and treatment of an “identified individual,” the release of information contained in such records is restricted to the dollar amount of the settlement only.

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 governmental 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 19th day of March 2009.

BY THE STATE RECORDS COMMITTEE

____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee