State Records Committee Appeal Decision 2009-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KEVIN ANDERSON, Petitioner, vs.

UTAH LABOR COMMISSION COMMISSIONER HAYASHI, Respondent.

DECISION AND ORDER

Case No. 09-07

By this appeal, Petitioner Kevin Anderson, (“Anderson”) seeks access to records related to the 2007 Crandall Canyon coal mine accident.

FACTS

On or about January 8, 2009, Anderson requested the following records from Commissioner Sherrie Hayashi of the Utah Labor Commission (“ULC”) pertaining to the Crandall Canyon mine accident (“accident”) pursuant to the Government Records Access and Management Act: (1) transcripts of interviews and/or meetings conducted by the United States Department of Labor’s Mine Safety and Health Administration (“MSHA”); (2) minutes of interviews and/or meetings conducted by MSHA; (3) reports of interviews and/or meetings conducted by MSHA; (4) drafts of reports of interviews conducted by MSHA; (5) all correspondence from August 1, 2007 through the present relating to the accident; and (6) all other documents, notes, correspondence, emails, charts, models, graphics, analyses and findings relating to the Crandall mine accident.

In a letter dated February 9, 2009, Alan Hennebold, Deputy Commissioner/General Counsel for ULC, indicated that for requests 1 through 4, no records were found which were responsive to Anderson’s request. As to request 5, copies of emails between Commissioner Hayashi and Richard Gates and/or James Crawford were provided to Anderson as the only records in the possession of ULC responsive to this request. As to request 6, Hennebold disclosed that ULC had approximately 75 pages of newspaper clippings, news releases and an MSHA power point presentation. Hennebold indicated that the records were readily obtainable through the originating entity, but that ULC would allow Anderson to inspect and copy these records. Hennebold also disclosed that ULC and/or Hayashi had in their possession approximately 100 pages of hand written notes and other documents obtained by Hayashi during the course of the MSHA investigation. Hennebold indicated the events around the accident were the subject of ongoing/continuing investigation and denied Anderson access to these records pursuant to Utah Code Ann. § 63G-2-305(9).

Anderson appealed the ULC ’s initial denial of his records request by letter dated March 11, 2009, requesting ULC or Hayashi review their records to determine whether, in fact, any records responsive to his requests 1 through 5 were held by ULC. Anderson indicated in his appeal letter that as to request 6, he was not asking for records generated from or disseminated by other entities such as the news, but appealed the denial of access to the approximately 100 pages of notes and other documentary evidence in the possession of ULC and/or Hayashi.

On March 24, 2009, Hayashi, responding as the chief administrative officer of ULC, indicated she had undertaken a second review of the records to determine if the ULC’s initial response/partial denial was accurate as to requests 1 through 4. Hayashi indicated that neither she nor ULC had any records in their possession responsive to Anderson’s requests 1 through 4. Hayashi further noted the ULC had fully responded to Anderson’s request 5 and had provided all records responsive to his request. Hayashi continued to assert the records in their possession (100 pages) were properly classified as “protected,” pursuant to Utah Code Ann. § 63G-2-305(9), and, therefore, access to those records was denied.

Anderson appealed ULC’s denial of his records request to the State Records Committee (“Committee”). At the hearing, the parties stipulated that Hayashi did not have access to nor was she the holder of transcripts and/or reports of interviews conducted by MSHA. Accordingly, the single issue argued by the parties before the Committee was whether ULC has a duty to disclose the approximately 100 pages of documents in their possession consisting of Hayashi’s hand written notes and other materials relating to the accident. Having reviewed the materials submitted by the parties and having heard oral argument and testimony on June 11, 2009, the Committee 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. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303, -304, and -305.

2. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification or registration purposes, are “protected” if properly classified by the governmental entity if release of the records reasonably could be expected to interfere with investigations undertaken for enforcement, discipline purposes. Utah Code Ann. § 63G-2-305(9).

3. In response to a GRAMA request, a governmental entity is not required to create a record or provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code Ann. § 63G-2-201(8)(a).

4. During the hearing, Hennebold testified that an exhaustive search had been conducted for records that may be responsive to Anderson’s request, but no records were located which were responsive to Anderson’s requests 1 through 4 and the parties have stipulated that there are no records held by ULC/Hayashi.

5. Based upon the testimony from the parties, the Committee finds that ULC has conducted a proper and thorough search of its records and has determined no records exist that would be responsive to Anderson’s request.

6. At the hearing, Anderson asserted that based upon the information provided by ULC, approximately 100 pages of hand written notes and materials responsive to his GRAMA request were in the possession of the ULC. Anderson testified he was present representing himself and not another client, and was entitled to the records claiming that Utah Code Ann. § 63G-2-305(9) does not apply to a federal investigation. Anderson further testified Hayashi was present during the MSHA investigation in her official capacity as a State entity and not as part of the Federal Government and as such could find no reason not to make the documents public.

7. Hennebold on behalf of ULC argued that the reference to “governmental entities” in Utah Code Ann. § 63G-2-305(9) was not at issue, but rather the question as to the meaning/legislative intent of “created for civil, criminal enforcement” and the “protected” classification for records if the release of the records could be reasonably expected to interfere with an investigation. Hennebold referenced Affidavits from Carlie Christenson, Brett Tollman and Richard Gates, wherein the affiants indicate in fact, an ongoing criminal investigation was being conducted and that it was their belief any release of information/documents by ULC could reasonably jeopardize and/or impede their investigation. Hennebold argued that nothing in the plain language of Utah Code Ann. § 63G-2-305(9) precludes intergovernmental agency cooperation and that he would interpret the language more broadly than Anderson.

8. After hearing testimony from the parties, and reviewing the documents provided by ULC in camera, the Committee finds the documents in question were properly classified, pursuant to Utah Code Ann. § 63G-2-305(9). The Commission holds that sufficient evidence was presented supporting the finding that the release of information from these documents could reasonably interfere with the ongoing investigations of the US Attorney’s Office.

ORDER

THEREFORE, IT IS ORDERED THAT the determination of the Utah Labor Commission as to the classification of records, notes and materials regarding the Crandall Canyon mine accident of 2007 is upheld, pursuant to Utah Code Ann. § 63G-2-305(9), and the appeal of Kevin Anderson as to this request is denied.

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 Ann. § 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 Ann. § 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 18th day of June, 2009.

BY THE STATE RECORDS COMMITTEE

____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee