GRAMA: A Journey from Paper to Portal

GRAMA: A Journey from Paper to Portal Glendon Mitchell, C.P.M., CPPO Laura Anne Stetson, JD Colette Brown

GRAMA, What Big Teeth You Have! GRAMA 101

Disclaimer • The information provided in this presentation does not, and is not intended to, constitute legal advice; instead, this presentation is for general informational purposes only. • Contact your attorney to obtain advice on any specific legal matter.

What is GRAMA? • Government Records Access & Management Act • Utah’s open records law • Designed to promote governmental transparency and accountability • State equivalent of federal Freedom of Information Act (“FOIA”)

A grama request: • Is in writing • Identifies the record(s) requested “with reasonable specificity” • Contains the name, mailing address, and email/daytime telephone (optional) of the person making the request • “Person” can be an individual or a business/organization/other entity

Responding to a GRAMA Request • Generally must respond within 10 (sometimes 5) business days • Provide the requested records, if public; or • Deny the request, if permitted by GRAMA • Include appeal information

Definition of a Record • A book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics • That is prepared, owned, received, or retained by a governmental entity or political subdivision

GRAMA and You • GRAMA applies to all state governmental entities • Includes internal emails, bid documents, evaluator scoresheets, voicemails, contracts, vendor bid responses • Very broad – if the governmental entity has a record, a court can compel disclosure

Classification of records • What is considered: • Public—all records are presumed public unless they fall within a statutory exception • Private—home address and telephone number, personal financial information • Protected—commercialinformation covered by a business confidentiality claim, trade secrets, certain procurement records, unpublished notes and data related to research • Controlled—health records • Restricted —competitive or proprietary information in a technology transfer or sponsored research agreement

Protected procurement records • What records are protected under GRAMA? • If disclosing the records would: • “impair governmental procurement proceedings” or • “give an unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity,” • Then: • The governmental entity can classify those records as protected. • EXCEPT… Utah Code 63G-2-305(6)

Exception • GRAMA “does not restrict the right of a person to have access to, after the contract or grant has been awarded and signed by all parties,” the following: • Bids • Proposals • Applications • Other information submitted as part of a procurement process • In other words, information that may have once been protected, may not be after a contract or grant has been awarded and signed. Utah Code 63G-2-305(6)

Requests for Information • RFIs may be protected under Utah Code section 63G-2-305(7) • This can include: • Information submitted to or by a governmental entity in response to a request for information, • EXCEPT… Utah Code 63G-2-305(7)

Requests for Info - Exception • GRAMA does not restrict access to such information, after: • A contract has been awarded and signed by all parties; or • A final determination was made not to enter into a contract and 2 years have passed • In other words, the information requested through an RFI can be protected until a final contract has been awarded and signed (or 2 years has passed from day RFI issued) on a solicitation that reflects the RFI. Utah Code 63G-2-305(7)

Confidentiality claims • Any person who provides a record to a governmental entity which they believe should be protected as a trade secret or as commercial information must provide, contemporaneously with the record: • (1) A written claim of business confidentiality; and • (2) A concise statement of the reasons supporting the claim. • If the governmental entity receives a claim and agrees, the governmental can classify the record as “protected” • This applies even after a contract is signed.

Correcting Mistaken Beliefs About GRAMA • Marking a document “PHI,” “private,” “confidential,” or “draft” will NOT prevent disclosure of the document • Email ISsubject to GRAMA • Text messages ARE subject to GRAMA • You cannotescape open records laws by using a Gmail account • Contract terms, including pricing, ARE generally subject to disclosure

The University of Utah’s process What we did

The University of UTAH The past The RFP • We received GRAMA requests via email, fax, mail, etc. • An Request for Proposal was issued to find a system that would be able to handle all GRAMA requests for the University.

Improvements to our System • All requests are funneled to one online request process

Improvements Cont. • Depending on the request, a coordinator is assigned to receive all GRAMA requests. • They come via email in this format:

What We See in GovQA • Reference Number – Assigned to each new request • Request Info – Any attachments or links included • Create Date – The date the request was made • Request Status – The current status of each request • Assigned Dept. and Staff – Where is the request currently assigned? • Customer Full Name • Company Name • Public Record Desired • Required Completion Date – Generated automatically by the system

Improvements Cont. • We can assign “activities” to different individuals. • This provides an email request that lets the individual see what is being requested while still being maintained by the sole coordinator.

Improvements cont. • Departments can upload multiple documents which are then combined easily into one document using the GovQA system. • Communication is electronic with a record of all requests made. • The system provides an incorporated document repository.

Case in Point Real-world examples

Example #1 • We had a request for all records relating to a solicitation. • This is the email they received:

The decision: • The records being requested were related to a procurement process where the contract was still being negotiated (not yet signed). • We chose to deny the request.

Example #2 • We got another request that referenced the Freedom of Information Act (FOIA)

The Decision • Although the University is not subject to FOIA, we chose to process it as a GRAMA request. • The RFP was in the contract negotiation stage. • A denial was sent and the requestor was able to respond. • They thanked us for the notice and said they would re-submit in a couple weeks. • When they do, we will be able to have all their requests in one location for easy reference.

Example #3 • Someone requested information on a past mattress bid we had conducted.

The Decision • We provided the info they requested because there were no restrictions or privacy requests, and a contract had been fully executed. • An email was sent with a link to the PDF. • We included a per page fee in accordance with the University’s fee schedule. • The GovQA system processes the payment.

In conclusion • GRAMA affects all forms of state government • There are many options as how to address requests • Using a SaaS based platform has helped the University of Utah be more streamlined in receiving and responding to requests

Questions?

GRAMA: A Journey from Paper to Portal