State Records Committee Decision 2016-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROGER BRYNER, Petitioner, v.

UTAH DEPARTMENT OF HEALTH. Respondent.

DECISION AND ORDER

Case No. 16-16

By this appeal, Petitioner, Roger Bryner, seeks access to records held by Respondent, the Utah Department of Health.

FACTS

On February 25, 2016, Mr. Bryner made a records request via e-mail for “exact copies of all of my medical records” from the Utah Department of Health ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Bryner demanded that he receive un-redacted copies “including only electronic, not paper, copies…NOT PRINTOUTS” and “raw files including any file structure for my files, in a .zip file or on a DVD or CD or flash file system.” Mr. Bryner stated that he wanted to “inspect and take electronic copies of these electronic documents ASAP.” In a letter dated February 25, 2016, the chief forensic toxicologist for Respondent stated that electronic files were being provided via e-mail including screen shots of the file structure from Respondent’s server.

On March 7, 2016, Mr. Bryner appealed to Dr. Joseph Miner, Executive Director of Respondent, arguing that all requested documents had not been provided to him, claiming that his request was for “all electronic source documents” for the Toxicology Final Report. Mr. Bryner stated that he wanted the Utah BFT Laboratory Alcohol-Volatiles report including “any source electronic medical records, and any records that exist in an uncompiled state as they exist on your server in electronic format, not compiled modified format as previously provided.” Mr. Bryner further stated that he was “requesting EVERYTHING not just the core files.”

In a letter dated March 10, 2016, Dr. Miner stated that upon review, it was determined that Mr. Bryner was entitled to an additional instrument file regarding the testing of his blood sample for alcohol, and that the file would be released to him. Regarding “electronic source documents” for the Toxicology Final Report, Dr. Miner stated that the records do not exist in any current form. In order to provide the record, the data entries used to generate the Toxicology Final Report would need to be extracted from the database which would require “at least 20 hours to extract the record.” Dr. Miner added that a fee waiver would not be offered to Mr. Bryner “if you choose to pursue this.” However, if Mr. Bryner agrees to pay the fee, “I will instruct the Lab to utilize [Department of Technology Services] support to obtain and provide to you the extracted data.”

Disagreeing with the Respondent’s claim that it would take “at least 20 hours to extract the record,” Mr. Bryner filed an appeal with the State Records Committee (“Committee”), of the Respondent’s decision not to grant him a fee waiver. The Committee, having reviewed the arguments submitted by the parties, having heard oral argument and testimony on April 14, 2016, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA states that every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours “subject to Sections 63G-2-203 and 63G-2-204.” Utah Code § 63G-2-201(1).

2. Utah Code § 63G-2-203(1) states that a governmental entity may charge a “reasonable fee to cover the governmental entity’s actual cost of providing a record.” Actual costs may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person’s request. Utah Code § 63G-2-203(2)(a)(i).

3. In the case of a record that is a result of “computer output other than word processing”, the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information may be charged by the governmental entity as an “actual cost.” Utah Code § 63G-2-203(2)(a)(iii). A governmental entity may require payment of past fees and future estimated fees before beginning to process a request if: (1) Fees are expected to exceed $50.00; or (2) The requester has not paid fees from previous requests. Utah Code § 63G-2-203(8).

4. A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record; or (3) The requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4). A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b).

5. Respondent argued that providing the information to Mr. Bryner would be difficult and require at least 19 hours because the databases and programs involved with his records request “deal with third party proprietary copyrighted software and programs.” In order to provide the record to Mr. Bryner, records would need to “be separated from copyrighted and proprietary material, as well as from other private and protected records of other individuals.” Respondent then argued that a denial of Mr. Bryner’s request for a fee waiver was reasonable because “Mr. Bryner provided no information to support his contention that the information that he seeks will directly implicate his legal rights and that he is impecunious.”

6. The Committee finds Respondent’s explanations concerning the time it would take to compile and provide the information to Mr. Bryner to be reasonable and credible. GRAMA allows Respondent to charge Mr. Bryner for the actual costs for providing the record. The Committee also finds Respondent’s denial of Mr. Bryner’s request for a fee waiver was not an unreasonable denial. Although Subsection 63G-2-203(4) “encourages” a governmental entity to fulfill a records request without charge under certain circumstances, “GRAMA still gives a governmental entity the discretion to deny a fee waiver request as long as the denial can be considered reasonable.” Allen v. Eagle Mtn., State Records Comm. Decision 2014-07 (Apr. 14, 2014), ¶7.

7. GRAMA allows a governmental entity to require payment of past fees and future estimated fees before beginning to process a request if fees are expected to exceed $50.00, but any prepaid amount in excess of fees due shall be returned to the requester. Utah Code § 63G-2-203(8).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, is DENIED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) and (2). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). 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(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 25th day of April, 2016.

BY THE STATE RECORDS COMMITTEE

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PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee