State Records Committee Decision 2015-21

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JASON BEHAR, Petitioner, v.

DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.

DECISION AND ORDER

Case No. 15-21

By this appeal, Petitioner, Jason Behar, seeks access to records allegedly held by Respondent, Utah Department of Human Resource Management.

FACTS

On or about May 1, 2015, Mr. Behar made a records request to the Utah Department of Human Resource Management (“Respondent”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Behar requested a copy of “[a]ll records the State of Utah has with my name on it.” On May 15, 2015, Mr. Behar was sent a package that contained the records maintained by Respondent. The package also contained a letter stating that some of the records requested were withheld because they had been classified as private or protected pursuant to Utah Code §§ 63G-2-302(2)(d), 63G-2-305(10)(a), -305(10)(b), and -305(25). On May 23, 2015, Mr. Behar appealed the denial, and on June 1, 2015, Executive Director, Ms. Cragun, upheld the denial stating that the records were properly classified.

On June 9, 2015, Mr. Behar filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, on July 9, 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.

2. The Committee after having reviewed all of the records submitted to them from Respondent, in camera, bates stamped each record for the purpose of identification for discussion during their open deliberations.

3. 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 court 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. Respondent argued that witness statements and other information came from individuals unsolicited, and that there should remain a privacy interest for the witnesses that participated.

5. Based upon this evidence, the Committee finds that the information that reasonably could be expected to disclose the identity of a source was properly classified as protected pursuant to § 63G-2-305(10)(d). As such, the Committee finds that the record bates stamped 3 was properly classified, in its entirety.

6. However, the Committee finds that the records bates stamped 1, 2, 4, 5, 6, 7, 8, and 9 could reasonably be released to Mr. Behar, with the personally identifiable information or information that could reasonably expected to disclose the identity of a source being fully and completely redacted, including the time of the particular event, but not the actual time of the emails themselves.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jason Behar, is GRANTED in part and DENIED in part.

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). 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). 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). 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). 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), 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). 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).

Entered this 20th day of July, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee