Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal, 2012-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CARL DINGER, Petitioner, vs.

COTTONWOOD HEIGHTS CITY, Respondent.

DECISION AND ORDER

Case No. 12-03

By this appeal, Petitioner, Carl Dinger, former employee of the Utah Transit Authority (“UTA”), appeals a partial denial from Respondent, the City of Cottonwood Heights (“City”), of his request for records pertaining to a report from an investigation performed by the Cottonwood Heights Police Department (“CHPD”) into Mr. Dinger’s allegations against UTA’s Police Department.

FACTS

In a letter dated August 20, 2011, Mr. Dinger submitted a records request to the City pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Dinger requested a copy of the CHPD’s “outside” investigation of his allegations against the UTA Police Department (“Report”). On or about September 2, 2011, Linda Dunlavy, Administrative Service Director for the City, sent Mr. Dinger a letter denying his request. The City claimed that the records were “protected” pursuant to Utah Code § 63G-2-305(9)(a) and (25).

Mr. Dinger filed an appeal of his denial with the City on or about September 29, 2011. In a letter dated October 6, 2011, Liane Stillman, City Manager, stated that Mr. Dinger’s appeal was granted in part and denied in part. Mr. Dinger received from the City the requested Report with certain portions redacted as “sensitive security information” and “unsubstantiated allegations.”

Petitioner now appeals to the Utah State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on January 12, 2012, 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 § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Utah Code § 63G-2-302 (2)(d) states that “records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy,” are “private if properly classified by a governmental entity.”

3. After reviewing the arguments submitted by the parties and hearing oral arguments and testimony, and an in camera review of the documents, the Committee is convinced that the redacted portions of the Report are public records under GRAMA with the exception of the last two paragraphs found on page 13 of the Report. The Committee finds that these specific portions of the Record are private pursuant to Utah Code § 63G-2-302 (2)(d) because “disclosure would constitute a clearly unwarranted invasion of personal privacy.” Further, the Committee instructs the Respondent to insure that it redacts any information that would disclose an individual’s race as this information is also “private” pursuant to Utah Code § 63G-2-302 (2)(d).

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Carl Dinger is GRANTED in part and DENIED in part.

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 23rd day of January 2012

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee