Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2012-24

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JANELLE STECKLEIN, REPORTER FOR SALT LAKE TRIBUNE, Petitioner, vs.

UTAH TRANSIT AUTHORITY, Respondent.

DECISION AND ORDER

Case No. 12-24

By this appeal, Petitioner, Janelle Stecklein, Reporter for the Salt Lake Tribune (“Tribune”), seeks to appeal the denial of her request for records regarding 2011 verified crime statistics.

FACTS

On or about May 17, 2012, Janelle Stecklein on behalf of the Tribune, submitted a Utah Government Records Access and Management Act (“GRAMA”) request to the Utah Transit Authority (“UTA”) seeking all “verified crime handled by [UTA] in 2011, including incident date, offense description, time of offense and geographic coordinates.” Ms. Stecklein requested the information in electronic form and stated that as a journalist working to benefit the public, “I request you please waive all fees pursuant to GRAMA.” In a letter dated May 23, 2012, Michelle V. Larsen, records officer for UTA, responded to the records request attaching a six page “Citation and Crime Statistics Detail Report.” Ms. Larsen also stated that UTA would not be providing the information in an electronic format because GRAMA did not require UTA to “provide a record in any other form than what it normally keeps.”
In a letter dated June 14, 2012, Ms. Stecklein filed an appeal with Michael Allegra, General Manager for UTA. Ms. Stecklein argued that since UTA was maintaining the data in an electronic format, it must be able to produce it upon request. Ms. Stecklein contended that asking UTA to create a database query is “not tantamount to creating a new record.”

There is a vast difference between not having information, as claimed in UTA’s denial letter, and being unwilling or unsure of how to extract it. UTA is still required by law to provide access or produce the information upon request.

UTA has chosen to store and maintain public records in electronic manner. In any case, UTA cannot store public information in an electronic database and use that – and a claim of ignorance – as an excuse to deny public access, particularly when UTA’s vendor is willing to assist UTA in accessing the information and help the agency provide the record.

On July 17, 2012, W. Steve Meyer, Acting General Manager for UTA, denied Ms. Stecklein’s appeal stating that “UTA has no obligation to provide the records in any compilation other than that which they have already been provided, given the functionality of the software maintained by UTA.” Mr. Meyer stated that Ms. Stecklein had the right to appeal his decision to the UTA Board of Trustees.

In a letter dated August 1, 2012, Ms. Stecklein filed an appeal with Gregory H. Hughes, Board Chair of UTA. Ms. Stecklein stated that she was seeking records that “do in fact exist” and had spoken with UTA “and determined that FatPot is the company that UTA contracts with pertaining to its crime data.” Ms. Stecklein further stated that after speaking at length with “FatPot about our and UTA’s dilemma, FatPot assures us there is a solution” to providing the records to the Tribune. Petitioner, Janelle Stecklein, Reporter for the Salt Lake Tribune, filed an appeal of UTA’s denial of her GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on November 15, 2012, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that every person has the right to inspect a public record free of charge subject to the requirements of Utah Code §§ 63G-2-203 and 63G-2-204. Utah Code § 63G-2-201(1).

2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). However, a governmental entity may not charge a fee for: (1) reviewing a record to determine whether it is subject to disclosure except as provided in Utah Code § 63G-2-203(2)(a)(ii), or (2) inspecting a record. Utah Code § 63G-2-203(5).

3. A governmental entity may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of a person to inspect and receive a copy of a record under GRAMA. Utah Code § 63G-2-201(11).

4. Ms. Stecklein stated that the Tribune has filed more than a dozen GRAMA requests with law enforcement agencies in Salt Lake County as part of an ongoing project to analyze verified crime trends. Ms. Stecklein argued that UTA is housing public information with a private entity and using that as an excuse not to produce public records upon request. The Tribune has been able to obtain “the exact same information and databases from nearly every law enforcement agency that received the same GRAMA request.” Ms. Stecklein claimed that FatPot, the third party contracted by UTA to house the crime statistics, would be able to produce the requested information in the format requested. However, counsel for UTA argued that the older version of the software maintained by FatPot made it extremely difficult for UTA produce the requested records without expending many hours of work.

5. After hearing the arguments of the parties, and having reviewed their submissions, the Committee is not persuaded that the difficulties by UTA to produce the requested records should result in a denial of access to the requested records.

6. Pursuant to Utah Code § 63G-2-201(1), every person has a right to inspect a public record subject to statutory restrictions. Additionally, the Utah Legislature recognizing the technology trend to have more records kept in an electronic format, stated its intention that a governmental entity cannot use the electronic form in which a record is stored to “deny or unreasonably hinder” the rights of a person to inspect and receive a copy of a record under GRAMA. See, Utah Code § 63G-2-201(11). Accordingly, UTA’s restriction to Petitioner to have access to its records in its electronic database would result in an effective denial of access to public records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Janelle Stecklein, Reporter for the Salt Lake Tribune is UPHELD and Respondent, the Utah Transit Authority, shall provide access to the Petitioner to the requested records.

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 § 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 § 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 27th day of November 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee