State Records Committee Appeal 00-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MATT BARLOW dba NETWORK ELECTRIC, INC., Appellant, vs.
DEPARTMENT OF COMMERCE, Appellee.

DECISION AND ORDER
Case No. 00-03

By this appeal, Matt Barlow seeks an order compelling the Department of Commerce (hereinafter referred to as "the Department") to give him access to the investigation policy and procedure manual maintained by the Department's Division of Occupational & Professional Licensing ("Division"). Mr. Barlow also seeks access to the Division's policy and procedure manual. The Division provided its general policies and procedures manual to Mr. Barlow prior to the hearing.

The State Records Committee, having reviewed the materials submitted by the parties, and having heard the oral argument and testimony of the parties July 12, 2000, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act ("GRAMA") specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2) (2000).

2. GRAMA also provides that records that are properly classified as "protected" are not public. Utah Code Ann. 63-2-201(3) (2000).

3. The Division has classified its Bureau of Investigations Policy & Procedure Manual as a protected record pursuant to Utah Code Ann. 63-2-304(9) (2000). During the Committee hearing, Mr. Barlow acknowledged his interest in the manual is limited to those portions which relate to the sequence of events which follow the Division's receipt of a complaint through filing of a Notice of Agency Action.

4. Upon review of the manual in its entirety at the hearing, the Committee has determined Chapter 5, Investigations, while properly classified as a protected record, should be disclosed to Mr. Barlow. The Committee makes this decision after consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or non-disclosure. Specifically, the Committee feels the public interest favoring access outweighs the interest favoring restriction of access.

5. This portion of the manual can provide Mr. Barlow with the information reasonably likely to lead to discoverable information such as information stored in the Division's database, the existence of an investigative plan and other relevant evidence.

6. Mr. Barlow's interest in this section of the manual is simply to determine whether agency personnel followed internal procedures during the course of investigating the allegations against him.

7. The fact that Mr. Barlow could obtain this information from other sources such as during the discovery process in concurrent proceedings before an administrative law judge add further support to Mr. Barlow's position that the information should be disclosed now instead of in subsequent, duplicative proceedings.

ORDER

THEREFORE IT IS ORDERED THAT the Division provide Mr. Barlow with Chapter 5 of its Investigation Procedures Manual. Mr. Barlow shall not disclose any portion of Chapter 5 to third parties, except agents or attorneys acting on his behalf before the Division. The May 11, 2000, Order entered by Department of Commerce Executive Director, Douglas Borba, is reversed.

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 by Utah Code Ann. 63-2-404 and 63-2-502(7) (2000). 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.

Entered this 13th day of July, 2000.

BY THE STATE RECORDS COMMITTEE

Betsy L. Ross, Chairperson
State Records Committee