Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Access Appeal 2010-2

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LORI PRICHARD/KSL TELEVISION, Petitioner, vs.

DIVISION OF FACILITIES CONSTRUCTION AND MANAGEMENT OF THE DEPARTMENT OF ADMINISTRATIVE SERVICES, STATE OF UTAH, Respondent.

DECISION AND ORDER

Case No. 10-2

By this appeal, Petitioner, Lori Prichard, Anchor/Investigative Reporter with KSL Television (“Petitioner”), seeks access to dates and times for state employees working at the Heber Wells Building, a state building administered by Respondent, Division of Facilities and Management (“DFCM”), via scans of their security access cards from September 1, 2008 through March 31, 2009.

FACTS

On November 11, 2009, Ms. Prichard made a Government Records Access and Management Act (“GRAMA”) request to Bruce Whittington, Assistant Director of DFCM. Ms. Prichard requested “[d]ate and time employee (excluding security guard) working at Heber Wells Building scans their security access card; entryway being accessed (parking garage, elevator or door); first and last name of employee; group name (or state agency with whom state worker is employed).”

In a letter dated November 18, 2009, Mr. Whittington denied Ms. Prichard’s request stating that the records “are classified as protected records and disclosure could jeopardize the life or safety of an individual or jeopardize the security of governmental property.” Mr. Whittington also attached letters from Captain Alan Workman of the Utah Highway Patrol, and Jeff Rose, Workplace Security Consultant for the Utah Division of Risk Management expressing concerns about disclosure of the requested information. Captain Workman stated in his letter that the data “would provide an unnecessary risk that could have the potential of compromising the integrity of the security system and overall facility security.” Mr. Rose stated in his letter that the information would “show a pattern of when the building is occupied and not occupied” and if “put into the wrong hands, could become a life or death situation.”

Ms. Prichard filed an appeal of Mr. Whittington’s decision, and in a letter dated December 17, 2009, Ken Hansen, GRAMA Appeals Officer for the Utah Department of Administrative Services denied Ms. Prichard’s appeal. Ms. Prichard now appeals to the Utah State Record Committee (“Committee”).

On February 4, 2010, Counsel for DFCM submitted to the State Records Committee a Motion to Dismiss “for lack of subject matter” under UCA § 63G-2-106 contending the records sought were records of “security plans, passes, security procedures and building and public works designs related to ongoing security measures.”
The Committee having reviewed the arguments submitted by the parties, including DFCM’s Motion to Dismiss, and having convened on February 11, 2010 a hearing to hear oral argument and testimony, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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, -304 and –305.

2. However, records of a governmental entity or political subdivision regarding security measures designed for the protection of persons or property, public or private, are not subject to the provisions of GRAMA. Utah Code Ann. § 63G-2-106.

3. DFCM filed a Motion to Dismiss Petitioner’s appeal on the basis that GRAMA provides no jurisdiction for the Committee to order the release of records regarding “a security system owned and managed by [DFCM].” DFCM argued that if the records were provided, “it would reveal part of the security plans, passes, security procedures, and building and public works designs related to ongoing security measures of the State of Utah.” DFCM noted that the impact of an adverse decision against DFCM “may set a precedent that can affect the life, safety and property protection, for up to approximately 200 DFCM managed facilities, the Utah State Capitol Hill Complex, and numerous County, City, School District and Special District facilities throughout the State of Utah.”

4. Petitioner argued that the purpose of requested information was simply to determine whether state employees were working their required hours, and not to compromise DFCM security procedures. Petitioner also claimed that disclosure of the information would not jeopardize the safety of individuals.

5. After hearing arguments and reviewing the materials submitted by the parties, the Committee finds DFCM’s arguments persuasive, and that the requested records are records regarding security measures as defined in Utah Code Ann. § 63G-2-106. The records are generated by the security system in place at the Heber Wells Building. The purpose of these security records is not to determine whether state employees are working their designated hours, but to regulate secured access to the Heber Wells Building by authorized individuals. Disclosure of the requested records could also disclose DFCM’s security procedures. See Utah Code Ann. § 63G-2-106(4). Accordingly, the security measures are designed for the protection of persons or property, public or private, and therefore are not subject to GRAMA.

ORDER

THEREFORE, IT IS ORDERED THAT: the Motion to Dismiss filed by Respondent, Division of Facilities and Management is granted, and the appeal of Petitioner Lori Prichard, Anchor/Investigative Reporter with KSL Television is denied because the requested records are records regarding security measures pursuant to Utah Code Ann. § 63G-2-106.

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 Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental 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.

Dated this 18th day of February 2010.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee