State Records Committee Appeal Decision 2015-26

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RICHARD PARKS, Petitioner, v.

UTAH DIVISION OF CONSUMER PROTECTION. Respondent.

DECISION AND ORDER

Case No. 15-26

By this appeal, Petitioner, Richard Parks, seeks access to records held by Respondent, the Utah Division of Consumer Protection.

FACTS

On June 16, 2015, Mr. Parks requested from Respondent, the Utah Division of Consumer Protection (“Consumer Protection”), a copy of “the investigative report on Case #83905, and all notes and recorded phone calls” concerning a complaint he had filed with Consumer Protection on November 10, 2014. In response, Consumer Protection partially granted Mr. Parks’ request, providing him with records that had been classified as protected and private records “since you are the subject of the records and the person who submitted the records.” However, Consumer Protection denied the request to the extent that it sought other documents in the investigative file.

In a letter dated June 30, 2015, Mr. Parks filed an appeal with Francine A. Giani, Executive Director of the Utah Department of Commerce. The appeal was assigned to Masuda Medcalf, an administrative law judge, who after reviewing Mr. Parks’ arguments and Consumer Protection’s file, found that the partial denial of Mr. Parks' request was appropriate. Judge Medcalf held that the investigation file contained private records such as witness names and contact information “the release of which would be a clearly unwarranted invasion of personal privacy” pursuant to Utah Code § 63G-2-302(2)(d). He also found that Utah Code § 63G-2-305(10) protects witness names, contact information, and information provided by witnesses.

On July 31, 2015, Mr. Parks 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 October 8, 2015, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are properly classified as “private,” “protected,” or “controlled” are not public records. See, Utah Code §§ 63G-2-201(3)(a), -302, -303, -304 and -305. A record to which access is restricted pursuant to another state statute is also not a public record. Utah Code § 63G-2-201(3)(b).

2. If properly classified by a governmental entity, records that are created or maintained for civil, criminal, or administrative enforcement purposes are “protected records” if the records could reasonably 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. Utah Code § 63G-2-305(10)(d).

3. Additionally, records that are maintained for civil, criminal, or administrative enforcement purposes, and have been properly classified as a protected record, are not subject to disclosure if release of the records could reasonably be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts. Utah Code § 63G-2-305(10)(e).

4. Further, pursuant to the Utah Consumer Sales Practice Act (“Act”), the Utah Division of Consumer Protection in carrying out its duties “may not publicly disclose the identity of a person investigated unless the identity has become a matter of public record in an enforcement proceeding or has consented to public disclosure.” Utah Code § 13-11-7(2).

5. Counsel for Consumer Protection, argued that GRAMA and the Act do not allow Consumer Protection to release the subject records. Counsel wrote that “the Final Investigative Report is replete with information solicited” by the investigator conducting his investigation of the complaint filed by Mr. Parks. Counsel argued that:

If an individual cooperates with a governmental entity by furnishing requested information, that person should not have to fear reprisal or retaliation for assisting in a government investigation. If such information was not protected, individuals might fear retaliation by the subject of the investigation (or even the complainant), and they would be much more reticent to furnish the government with helpful information. This, in turn, would have a significant chilling effect on a governmental entity’s ability to effectively conduct its investigations.

6. After reviewing the arguments submitted by the parties and interested parties, hearing oral arguments and testimony during the hearing, and reviewing the disputed records in camera, the Committee found that the subject records were properly classified as non-public records. The correspondence records within the investigation file should not be released because they are protected records pursuant to Utah Code § 63G-2-305(10)(d) & (e). However, the committee determined, based on an in camera review of the final report, the final report can be released with redactions made by Consumer Protection as follows: (1) any information identifying sources pursuant to Utah Code § 63G-2-305(10)(d), (2) the name of the company investigated pursuant to Utah Code § 13-11-7(2).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner 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 October 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee