State Records Committee Appeal Decision 2016-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

REGINALD WILLIAMS, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 16-07

By this appeal, Petitioner, Reginald Williams, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.

FACTS

On October 14, 2015, Mr. Williams made a records request to the Utah Attorney General’s Office ("AG's Office"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Williams requested the Employee Service History for eleven individuals. On November 6, 2015, the AG’s Office responded to Mr. Williams' request and provided information regarding one employee’s name and hire date, but denied additional information regarding the employee claiming that it was non-public. The AG’s Office also denied the remainder of the employee records request, stating that “the office respectfully denies [the request] without saying whether it has any records responsive to it…” Mr. Williams appealed to the chief administrative officer of the AG’s Office, and then thereafter, filed an appeal with the State Records Committee (“Committee”).

Prior to the hearing, the AG's Office filed a "Motion for Order Implementing Certain Procedures to Preserve Confidentiality" ("Motion"). In the Motion, the AG's Office requested that the Committee allow it to “file all of its submissions to the Committee under seal” in order for the Committee to conduct its review, and that the “evidence may be submitted by affidavit.” Counsel for the AG’s Office further noted that he was not asking for an opportunity to make an oral presentation to the Committee in camera, but simply wanted to make arguments regarding the classifications of the records without revealing non-public information concerning the records.

On February 11, 2016, the Committee held a public hearing to consider the merits of the Motion and the Appeal. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony, reviewing the records in camera, and carefully considering the requested relief, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Regarding the AG's Office's Motion, the Committee has previously held that the Committee does not have the authority "to close hearings, allow ex parte arguments, or even allow the disclosure of non-public records to legal counsel for a party" other than what is specifically allowed under GRAMA and the Open and Public Meetings Act. See, Gehrke v. Utah Atty. Gen. Office, State Records Comm. Case No. 15-34 (Dec. 21, 2015). Accordingly, the Committee denies the Motion to present arguments and evidence under seal.

2. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

3. Mr. Williams claimed that the records should be classified as public records because the persons listed in his original records request had already been identified publicly as employees of the AG’s Office. Counsel for the AG's Office argued that all records that are public records have already been provided to Mr. Williams, and that the remaining records were properly classified as private records pursuant to Utah Code §§ 63G-2-302(2)(a) (records concerning a current or former employee), -301(2)(b)(i) (records of undercover law enforcement personnel) and -301(2)(b)(ii) (records regarding investigative personnel if disclosure could reasonably be expected to impair their effectiveness or endanger any individual's safety). Further, counsel for the AG’s Office argued that he could neither confirm nor deny that the records actually exist, as disclosure of such information would in fact be a disclose of private and protected information.

4. After hearing arguments by the parties, the Committee finds that the records relating to one individual (Jacob Taylor) should be provided to Mr. Williams after redactions are made for information that is not considered "public" pursuant to Utah Code § 63G-2-301(2)(b). Regarding the remaining ten individuals listed in Mr. Williams' request, the Committee finds that even if such records do exist, the records are properly classified as private records pursuant to Utah Code §§ 63G-2-302(2)(a) or -303, and are not subject to disclosure.

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 23rd day of February 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee