State Records Committee Appeal 2014-19

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DANIEL RIVERA JR., Petitioner, v.

DEPARTMENT OF HUMAN SERVICES; DIVISION OF CHILD & FAMILY SERVICES, Respondent.

DECISION AND ORDER

Case No. 14-19

By this appeal, Petitioner, Daniel Rivera, Jr., seeks access to records held by Respondent, Division of Child and Family Services, within the Utah Department of Human Services.

FACTS

In a letter dated August 18, 2014, Mr. Rivera made a records request to the Division of Child and Family Services (“DCFS”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Rivera requested copies of police reports and records related to a police raid at his residence on October 28, 2011. Mr. Rivera’s request was denied by DCFS’s Northern Region GRAMA specialist. Mr. Rivera filed an appeal with the Utah Department of Human Services (“DHS”). In a letter dated October 24, 2014, Sonia Sweeney, the Chief Administrative Officer for DHS, denied the appeal finding that DCFS did not have any records responsive to Mr. Rivera’s request.

Mr. Rivera filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on December 11, 2014, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA allows a governmental entity to provide a record that is private, controlled, or protected to another governmental entity if the requesting entity “enforces, litigates, or investigates civil, criminal, or administrative law, and the record is necessary to a proceeding or investigation.” Utah Code § 63G-2-206(1)(b). The governmental entity receiving a record under the “sharing record” provision of GRAMA “is subject to the same restrictions on disclosure of the record as the originating entity.” Utah Code § 63G-2-206(6)(a). A governmental entity may not disclose a record that is classified as a “protected” record to any person except as allowed under GRAMA. See, Utah Code § 63G-2-201(5).

2. In the present case, counsel for DCFS stated that subsequent to DHS’ Chief Administrative Officer’s denial of Mr. Rivera’s appeal, DCFS discovered a record responsive to his request. However, the record is a law enforcement report that the law enforcement agency had already classified as “protected,” and had been provided to DCFS through GRAMA’s sharing record provision. Counsel argued that DCFS cannot provide the record to Mr. Rivera because the law enforcement agency had classified the record as “protected,” and DCFS is subject to the same restrictions on disclosure as the originating entity pursuant to Utah Code § 63G-2-206(6).

3. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that DCFS “is subject to the same restrictions on disclosure of the record as the originating entity” pursuant to Utah Code § 63G-2-206(6)(a). The originating entity classified the record to be a non-public “protected” record. Therefore, DCFS cannot provide Mr. Rivera access to the record under GRAMA’s sharing record provision. Although DCFS has the record, in order to obtain access to the record, Mr. Rivera should make a records request to the originating governmental entity.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Daniel Rivera, Jr., 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 § 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 22nd day of December 2014.

BY THE STATE RECORDS COMMITTEE

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PATRICIA SMITH-MANSFIELD
Chairperson, State Records Committee