State Records Committee Appeal Decision 2016-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

EDGAR FRYE, Petitioner, v.

UTAH DEPARTMENT OF HUMAN SERVICES, DIVISION OF AGING AND ADULT SERVICES. Respondent.

DECISION AND ORDER

Case No. 16-09

By this appeal, Petitioner, Edgar Frye, seeks access to records allegedly held by Respondent, the Utah Department of Human Services, Division of Aging and Adult Services.

FACTS

On August 17, 2015, Mr. Frye made a records request to the Utah Department of Human Services, Division of Aging and Adult Services ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Frye requested “[a]ll records of interviews, phone calls, etc, in the abuse case of my sister, Bernice Hallman, of St. George, Utah.” In a letter dated August 19, 2015, Respondent denied Mr. Frye’s request indicating that the requested records were classified as “protected.”

On or about August 25, 2015, Mr. Frye filed an appeal, and on September 8, 2015, the Department of Human Services’ Chief Administrative Officer, Sonia Sweeney, affirmed the denial. Thereafter, Mr. Frye filed an appeal with the State Records Committee (“Committee”), and on March 17, 2016, the Committee held a public hearing. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony, and carefully considering the requested relief, the Committee 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 § 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. GRAMA also recognizes that access to records may be restricted pursuant to another state statute, and that disclosure of the record to which access is limited by another state statute “is governed by the specific provisions of that statute…” See, Utah Code § 63G-2-201(3)(b) and 6(a).

2. A governmental entity may properly classify a record as “protected” if the information is “contained in the statewide database of the Division of Aging and Adult Services.” See Utah Code § 63G-2-305(43)(a). Utah Code § 63G-2-202(4)(c) only allows disclosure of a protected record pursuant to a court order or a legislative subpoena. Access to information in the database shall be made available to law enforcement agencies, the attorney general’s office, city attorneys, county or district attorney’s offices, or as required under Utah Code § 63G-2-202(4)(c). See, Utah Code § 62A-3-312(1) and (2). Access to information in the database may also generally be made available “at the discretion of the division” to a vulnerable adult named in the report, or a person identified in the report as having been abused, neglected, or exploited. Utah Code § 62A-3-312(3)(a).

3. Counsel for Respondent argued that the records were classified as “protected” pursuant to Utah Code § 63G-2-305(43)(a), and that Mr. Frye does not qualify as a person entitled to have access to the records under either Utah Code §§ 63G-2-202(4)(c) or 62A-3-312(3)(a).

4. After hearing the argument, the Committee finds that the Respondent properly classified the records as protected, and could not disclose them pursuant to Utah statute. Accordingly, Petitioner’s GRAMA request should be denied.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Edgar Frye, 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). 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 28th day of March 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee