State Records Committee Appeal 01-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BARBARA SCHWARZ, Appellant, vs.

DEPARTMENT OF HUMAN SERVICES - DIVISION OF MENTAL HEALTH, Appellee.

DECISION AND ORDER
Case No. 01-05

By this appeal, Barbara Schwarz seeks an order of the Committee requiring that the Division of Mental Health provide her with all records in its possession pertaining to her. Specifically, Ms. Schwarz requested: As described in my letters of March 9, 2001 and March 20, 2001 to Janina Chilton, the records by Ms. Chilton and also Valley Mental Health and Disability Law Center in D.C. and SLC and any other kind of records on me. Likewise, Ms. Schwarz' March 20, 2001 letter requests "any records that you have on me that were either generated by your [sic] or received by you." Finally, the March 9, 2001 letter requests "a copy of your correspondence, the letters, cards, e-mail, memoranda, notes, etc. that you received and generated in regards of me."

The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony of the parties on July 11, 2001, 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).

2. GRAMA also provides that records that are private, controlled and protected records are not public. See Utah Code Ann. 63-2-201(3).

3. Utah Code Ann. 63-2-403(11)(b) allows the Committee to disclose private, protected or controlled records where the "public interest favoring access outweighs the interest favoring restriction of access" after "consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure . . . ." Id.; see also Utah Code Ann. 63-2-202(9)(b).

4. The Division has classified the referrals it receives as private, controlled and protected and bases its denial on those classifications. Therefore, the threshold question before us is whether those classifications are proper.

5. The Division has in its possession a one-page e-mail message regarding Ms. Schwarz. It has indicated under oath that no other records exist. The Division provided the e-mail message to Ms. Schwarz, redacting only the name of the author. The author's title, employer and phone number were not redacted. The Division denied access to remaining portion of the record pursuant to Utah Code Ann. 63-2-302, -304(10) and -303 . It argued that the record was "protected as to the referrant and controlled as to the body of the e-mail." Furthermore, since the author of the e-mail requested that her identity not be disclosed, the Division argued that disclosure would constitute a clearly unwarranted invasion of the author's personal privacy.

6. Thus, the relevant inquiry is whether disclosing the name of the referring party would "jeopardize the life or safety of an individual," would constitute a "clearly unwarranted invasion of personal privacy" or would amount to "a violation of normal professional practice and medical ethics." After considering the evidence and argument of the parties, the Committee finds that the Division has properly classified the identity of a referring party as a private or controlled record.

7. The remaining issue before us is whether, after "consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or non-disclosure," the public interest favoring access outweighs the interest favoring restriction of access. See Utah Code Ann. 63-2-403(11)(b) (Supp. 2000). Under the specific facts of this case, the Committee is persuaded that the public interest favoring access outweighs the interests favoring restriction of access. In reaching this decision, the Committee is mindful of the fact that the Division already disclosed the body of the e-mail and the title, employer and phone number of the author. Since GRAMA provides that all records are public unless otherwise expressly provided by statute, the Committee finds that Appellee is entitled to the remaining portion of the requested record. The public interest is served by allowing Ms. Schwarz to identify the person who has provided information about her to the government. For example, Ms. Schwarz may find it necessary to supplement or correct any information provided by this person to other government entities.

8. Counsel for the Division indicated it would provide an affidavit indicating it has provided Ms. Schwarz with all records in its possession concerning her. This decision is based in part on that representation.

ORDER

WHEREFORE, IT IS ORDERED THAT the appeal is granted and the decision of the Department of Human Services, Division of Mental Health is reversed. The Department shall prepare an affidavit indicating that the records provided to Ms. Schwarz constitute all records concerning her in its possession.

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. 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 11th day of July, 2001.

BY THE STATE RECORDS COMMITTEE

Cherie Willis, Chairperson
State Records Committee