State Records Committee Decision 2015-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL G. AMANN, Petitioner, v.

DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.

DECISION AND ORDER

Case No. 15-03

By this appeal, Petitioner, Paul G. Amann, seeks access to records held by Respondent, Utah Department of Human Resource Management.

FACTS

On October 21, 2014, Mr. Amann made a records request to the Utah Department of Human Resource Management (“DHRM”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Amann requested a copy of a complaint filed against him by an employee of the Utah Department of Commerce alleging “workplace harassment.” Mr. Amann also requested all records used to support the complaint, and all communications: (1) To and from the Utah Division of Securities (“Securities”) employees regarding the complaint; (2) Between Securities and the Utah Attorney General’s Office regarding the complaint; and (3) Between the complainant and DHRM.

On November 3, 2014, the records officer for DHRM denied Mr. Amann’s records request, finding that the records were protected pursuant to Utah Code §§ 63G-2-305(10)(a), -305(18), and -305(25), noting that the records were part of an ongoing investigation by DHRM. Mr. Amann filed an appeal of the denial with Debbie Cragun, Executive Director of DHRM. In a letter dated November 21, 2014, Ms. Cragun upheld the initial denial of Mr. Amann’s records request, noting that GRAMA “is designed to prevent the subject of an investigation from being able to obtain a copy of the complaint during a pending investigation into the subject’s conduct.”

On December 16, 2014, Mr. Amann filed an appeal with the State Records Committee (“Committee”). Prior to the appeal being heard by the Committee, DHRM’s investigation in response to the complaint filed against Mr. Amann was completed, and documents responsive to Mr. Amann’s records request were provided to Mr. Amann. The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on January 8, 2015, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Records created or maintained for administrative enforcement or discipline are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to interfere with investigations undertaken for enforcement or discipline purposes. Utah Code § 63G-2-305(10)(a).

2. In the present case, DHRM stated that the investigation was completed on or about December 3, 2014, and the investigation found no merit to the filed complaint. Accordingly, DHRM claimed that all documents responsive to Mr. Amann’s records request were provided to him. However, DHRM could not certify that copies of all communications related to the records request have been provided, but would be willing to conduct an additional search to find any other documents that were responsive to Mr. Amann’s request.

3. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that based upon DHRM completing investigation, Mr. Amann is entitled to receive records responsive to his request. 1

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul G. Amann, is GRANTED.

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 20th day of January 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee

1 It should be noted that Mr. Amann wrote a letter to Ms. Cragun dated December 3, 2014 regarding her November 21, 2014 decision denying his appeal.  In the letter Mr. Amann stated that the investigation had been completed on November 18, 2014, and that he was “writing to renew my request that you provide the information I have requested” and that he wanted “[i]n addition,…any documentation generated by Ms. Adkins during her now complete investigation.”  DHRM treated Mr. Amann’s letter as a new records request, and as such, responded with a decision from its records officer dated December 17, 2014.  Accordingly, this decision by the Committee only addresses records requested by Mr. Amann in his October 21, 2014 request, and does not include any additional records requested by Mr. Amann in his November 18, 2014 letter.