State Records Committee Decition 2015-16

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. 15-16

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 (“Commerce”) alleging “workplace harassment.” Mr. Amann was serving at the time as an Assistant Attorney General, assigned by the Utah Attorney General’s Office (“AG’s Office”) to serve as legal counsel for Commerce. Mr. Amann’s request was denied initially by a records officer for DHRM, and during the appeal of that decision, Mr. Amann wrote in a letter dated December 3, 2014, that he wanted, in addition to his records request, “any documentation generated by Ms. Adkins during her now complete investigation.” See, Amann v. Dep’t. of Human Res. Mgmt., State Records Comm. Case No. 15-03 (January 20, 2015), fn. 1. DHRM treated Mr. Amann’s December 3, 2014, letter as a new records request, and as such, responded with a decision from its records officer dated December 17, 2014. Id. In this letter, the records officer provided a copy of the complaint and all records used to support the complaint, all communications known to DHRM that occurred between Securities Division employees regarding the complaint, communications between the complainant and DHRM, and the letter generated by Ms. Adkins informing the complainant of the investigative results. However, the records officer denied Mr. Amann’s request for investigative results, claiming that “[a]ny investigative results or reports were produced and prepared by the Attorney General’s office with requested assistance from DHRM.” The letter stated that release of the records would be inappropriate pursuant to Utah Code § 63G-2-305(10)(b).

In a letter dated January 8, 2015, Mr. Amann appealed the decision of the records officer to Debbie Cragun, Director of DHRM. In a letter dated January 16, 2015, Mr. Cragun denied Mr. Amann’s appeal based upon the following reasons: (1) Some of the records were maintained by the AG’s office; (2) Release of some of the records would constitute an unwarranted invasion of personal privacy pursuant to Utah Code § 63G-2-302(2)(d); (3) Some of the records are protected as employment records pursuant to Utah Code § 63G-2-302(2)(a); (4) Records containing interview descriptions and other information provided by witnesses are protected pursuant to Utah Code §§ 63G-2-305(10)(d) & -302(2)(d); (5) Some of the documents were drafts not subject to GRAMA pursuant to Utah Code §§ 63G-2-103(22)(b)(ii) or -305(22); and (6) Some of the records are protected as attorney client/attorney work product pursuant to Utah Code § 63G-2-305(17) & (18).

On February 17, 2015, Mr. Amann filed an appeal with the State Records Committee (“Committee”). The matter came before the Committee for oral argument and testimony on March 19, 2015. Prior to the hearing and pursuant to Utah Code § 63G-2-403(6), two requests were filed with the Committee to intervene. The Utah Department of Commerce (“Commerce”) requested intervention as an interested party because its “legal interests may be substantially affected by the proceedings” before the Committee because of the “interests of its employees who participated in the investigation.” The Utah Attorney General’s Office requested intervention as an interested party because Mr. Amann is an employee of the AG’s Office, and records of other agencies represented by the AG’s Office “may be the subject to the GRAMA request made.” Pursuant to Utah Code § 63G-2-403(6) and (8), the Committee allowed Commerce and the AG’s Office to participate in the proceedings.

At a hearing held on March 19, 2015, the parties were allowed to present their arguments. The Committee reviewed all submitted pleadings, and also reviewed in camera the disputed documents from DHRM. However, the Committee found that the evidence and documents from DHRM were too numerous to review in their entirety during the hearing. Without objection and with consent from the parties, the Committee continued the hearing to a later date to allow the Committee members an opportunity to review the disputed documents in camera. See, Amann v. Dep’t. of Human Res. Mgmt., State Records Comm. Case No. 15-09 (March 30, 2015).

On May 14, 2015, the Committee continued the hearing regarding the present case, and continued their open deliberations during the hearing. The Committee having reviewed the materials provided for in camera review, now issue 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.

2. The Committee after having reviewed all of the records submitted to them from DHRM, for the purpose of discussion during their open deliberations, divided the records into four broad categories: (1) Evidence collected including testimony of witnesses; (2) Investigative Notes; (3) E-mails; and (4) The draft and final report.

3. Records that would reveal the contents of settlement negotiations, but not including final settlements or empirical data to the extent that they are not otherwise exempt from disclosure, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(33). Additionally, records that are created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records reasonably could be expected to disclose the identity of a source who is not generally known outside of government, and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source, may be properly classified as protected records. Utah Code § 63G-2-305(10)(d).

4. DHRM argued that interview descriptions and other information came from individuals who were promised confidentiality, and that there should remain a privacy interest for the witnesses that participated in the investigation. A review of the records showed that they included documents from attorneys who were discussing cases and negotiating settlements. Based upon this evidence, the Committee finds that the documents concerning evidence collected were properly classified as protected records pursuant to §§ 63G-2-305(33) or -305(10)(d).

5. Records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, not including records specified as public records elsewhere in GRAMA, are private if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a).

6. The Committee found that the records categorized as “investigative notes” involved notes from investigators concerning information, summary, ideas, and thoughts they had from the investigation. These notes were interspersed throughout the disputed records. DHRM argued that there was an important privacy interest in protecting the privacy of employees who make employment related complaints. The Committee agreed and found that the investigative notes were properly classified as private pursuant to Utah Code § 63G-2-302(2)(a) and protected pursuant to Utah Code § 63G-2-305(10)(d).

7. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). A review of the disputed records showed e-mails between DHRM and the AG’s Office concerning negotiation settlements and resolution of the present case. The review also showed that these e-mails contained public information, but if the non-public information was redacted, there would not be enough meaning or context to understand the e-mails. Accordingly, the Committee finds that the e-mails were properly classified as protected records pursuant to the attorney client privilege provision of GRAMA found in Utah Code § 63G-2-305(17) and the settlement provision found in Utah Code § 63G-2-305(33).

8. Drafts, unless otherwise classified as public under GRAMA, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(22). Records containing data on individuals are private records if properly classified by a governmental entity if disclosure of the information “constitutes a clearly unwarranted invasion of personal privacy.” Utah Code § 63G-2-302(2)(d).

9. The Committee reviewed the final report of the investigation and drafts of the report in camera. A review of the report showed that it was written for administrative enforcement purposes, and not for release as a public record. Additionally, the reports contained witness identification information that DHRM argued should remain confidential. Accordingly, the Committee finds that the draft report and the final report are private records pursuant to Utah Code § 63G-2-302(2)(a) & (d), and protected records pursuant to Utah Code § 63G-2-305(10)(d). The Committee also finds that the draft reports re protected records pursuant to Utah Code § 63G-2-305(22).

ORDER

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