State Records Committee Decision 2015-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DANIEL RIVERA JR., Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 15-14

By this appeal, Petitioner, Daniel Rivera, Jr., seeks access to records held by Respondent, Utah Attorney General’s Office.

FACTS

In a letter dated November 12, 2014, Mr. Rivera made a records request to the Utah Attorney General’s Office (“Respondent”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Rivera requested copies of “Search warrant, Police Reports, Probable Cause Affidavit, CI Statements, Witness Reports from neighbors etc., Statements of Children if any, any and all DCFS statements, petitions, [and] motions filed” related to a police raid at his residence and related to DCFS case #030116813 “and so on.”

In a letter dated January 29, 2015, the Respondent partially granted and partially denied Mr. Rivera’s request. Some records were provided including redacted portions of the records, and a portion of the records provided were denied and redacted. Mr. Rivera appealed the partial denial, and in a letter dated February 26, 2015, the denial was upheld by Parker Douglas, General Counsel and Chief of Staff for Respondent.

On or about March 31, 2015, 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 May 14, 2015, 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 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. Additionally, a record to which access is restricted pursuant to a court rule, another state statute, federal statute, or federal regulation, is also not a public record. Utah Code § 63G-2-201(3)(b).

2. Counsel for Respondent argued that all records withheld from Mr. Rivera were properly classified as non-public records. Some of the records were classified as protected records pursuant to Utah Code § 63G-2-305(18) because they were created for or by an attorney in anticipation of litigation. Respondent also argued that a portion of the requested records are private records pursuant to Utah Code §§63G-2-302(1)(a) and -302(2)(d), because they involve details of an individual’s eligibility for social services and release of the records would be an “unwarranted invasion of personal privacy.” Additionally, a portion of the records involve juvenile court records, which pursuant to Utah Code § 78A-6-115, are considered non-public records. See, also Judicial Council Rules of Judicial Admin. R. 4-202.02 “Records Classification” and R.4-202.03 “Records Access.”

3. Respondent further argued that it could not provide some of the requested records because they are records of a client governmental entity of the Attorney General’s Office, and therefore pursuant to Utah Code § 67-5-15(1), these records are not considered records of Respondent. Concerning Mr. Rivera’s request for records “and so on,” Respondent claimed that such a request was not reasonably specific for a records request pursuant to Utah Code §§ 63G-2-204(1)(b) and 63G-2-201(7)(b).

4. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that the Respondent properly classified all the records and has already provided all records Mr. Rivera was entitled to receive, from Respondent, pursuant to his records request.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Daniel Rivera, Jr., is DENIED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14) (2015). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a) (2015). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2) (2015). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6) (2015). 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(15)(c) (2015), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i) (2015). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii) (2015).

Entered this 26th day of May, 2015

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee