State Records Committee Appeal 04-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JO-ANN COLLIER HOFFMAN, Petitioner, vs.
UTAH DEPARTMENT OF COMMERCE, DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING, Respondent.

DECISION AND ORDER
Case No. 04-13

By this appeal, Jo-Ann Collier Hoffman seeks an order compelling Appellee, the Utah Department of Commerce, Division of Occupational and Professional Licensing ("DOPL"), to grant her access to investigative files which led to a proposed Stipulation and Order admitting certain allegations concerning DOPL's investigation. She has retained legal counsel to advise her on whether to sign the Stipulation and Order. Counsel has requested the investigative file to evaluate the proposal. Counsel for petitioner is particularly interested in the documents that provide a factual basis for her client's proposed admissions in the Stipulation and Order. The State Records Committee, having reviewed the written materials submitted by the parties, and having heard testimony and argument on October 27, 2004, 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). GRAMA also provides that records that are properly classified as "protected" are not public. Utah Code Ann. 63-2-201(3). DOPL has classified the entire investigative file in this case as a protected record pursuant to Utah Code Ann. 63-2-304(9).

2. The Committee recognizes that the Government Access and Management Act allows investigative files to be classified as protected records under certain conditions. See Utah Code Ann. 63-2-304(9). Since DOPL has not described, even in general terms, the records withheld, it is impossible for the Committee to determine if those conditions exist. See Utah Code Ann. 63-2-205(2)(b). During the hearing, DOPL has expressed a willingness to meet with petitioner's counsel to attempt to help her better understand the factual basis underlying the proposed Stipulation and Order within the next thirty days.

3. It is therefore the Committee's Order that, based on this representation, this appeal will be dismissed without prejudice, provided that, if settlement negotiations fail and no charges are filed, petitioner may request that the matter be set for further proceedings before the Committee in accordance with Utah Code Ann. 63-2-403(4). Petitioner shall provide a copy of that request to DOPL's legal counsel. Within 10 days of receiving its copy of that request, DOPL must provide a description of the records withheld in accordance with Utah Code Ann. 63-2-205(2)(b). If charges are filed prior to the hearing date, disclosure of the records shall be governed by Utah Code Ann. 63-2-207 and -202(7) and there will be no further proceedings before this Committee.

ORDER

WHEREFORE, IT IS ORDERED THAT Appellant's appeal is dismissed without prejudice, as set forth above.

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 1st day of November, 2004.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chair
State Records Committee