State Records Committee Decision 2013-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CLARA FERNANDA RUIZ, Petitioner, vs.

DEPARTMENT OF ADMINISTRATIVE SERVICES, Respondent.

DECISION AND ORDER

Case No. 13-09

By this appeal, Petitioner, Clara Fernanda Ruiz, seeks access to records from the Utah Department of Administrative Services (“DAS”) pursuant to Utah’s Government Records Access and Management Act (“GRAMA”).

FACTS

In a letter dated June 1, 2013, a representative for Ms. Ruiz requested records from the Utah Division of Risk Management (“Risk Management”), a state agency division within DAS. The letter stated that an accident had occurred involving Ms. Ruiz on December 13, 2011, in which she was injured while “being assisted down the ramp from the UTA bus and the person assisting her lost control of the wheel chair.” Ms. Ruiz was at the time on a school field trip as a student with the Ogden School District. The letter requested “copies of the incident report and the witness statements as well as any additional relevant reports connected to this case and copies of any photos.”

On or about June 5, 2013, Risk Management denied Ms. Ruiz’ request for records stating in a letter that records of investigations of loss occurrences and analyses of loss occurrences that may be covered by the Risk Management Fund are protected records not subject to disclosure pursuant to Utah Code § 63G-2-305(24). Counsel for Ms. Ruiz filed an appeal with Ken Hansen, DAS Chief Administrative Officer designee for GRAMA Appeals, arguing that the records should be disclosed because there were “no other incident report[s] or other ways for us to find out what happened in this situation.”

In a letter dated July 10, 2013, Mr. Hansen stated that the records were “created by an investigator employed by [Risk Management] regarding a loss occurrence that may be covered by the Risk Management Fund.” Mr. Hansen further stated that the records were “created at the direction of counsel in anticipation of litigation.” Because of the nature of the records, Mr. Hansen found that the records had been properly classified as protected and denied Ms. Ruiz’ request for access to the records. Ms. Ruiz now appeals DAS’s denial of her GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on September 12, 2013, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Utah Code § 63G-2-305(18) states that records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if they are properly classified by a governmental entity.

3. Utah Code § 63G-2-305 also specifically provides protection for records “of investigations of loss occurrences and analyses of loss occurrences that may be covered by the Risk Management Fund…”. See, Utah Code § 63G-2-305(24).

4. Counsel for Risk Management argued that both Utah Code § 63G-2-305(18) & (24) apply to the present records request. Counsel stated that the purpose of Risk Management’s file is to determine the value of a claim against a covered entity in a potential claim against the Risk Management Fund. Counsel claimed that the protections afforded in GRAMA to Risk Management’s file is similar to the protections given by the Utah Supreme Court to documents in an insurance claim file as stated in Askew v. Hardman, 918 P.2d 469 (Utah 1996). Counsel also noted that Ms. Ruiz has other options available to her for obtaining the subject records.

5. After hearing the arguments of the parties, the Committee finds that Risk Management properly classified the records as protected pursuant to Utah Code § 63G-2-305(18) & (24). The Committee is convinced by Respondent’s arguments that the information contained within the file: (1) Were prepared in anticipation of litigation, or a judicial, quasi-judicial, or administrative proceeding; and/or (2) Are records of investigations of loss occurrences and analyses of loss occurrences that may be covered by the Risk Management Fund.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Clara Fernanda Ruiz, is DENIED pursuant to Utah Code § 63G-2-305(18) & (24).

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 § 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 § 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 23rd day of September 2013.

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Chairperson
State Records Committee