State Records Committee Appeal Decision 2016-40

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JAMES DURAN, Petitioner, v.

UTAH DEPARTMENT OF HUMAN SERVICES. Respondent.

DECISION AND ORDER

Case No. 16-40

By this appeal, Petitioner, James Duran, seeks access to records allegedly held by Respondent, the Utah Department of Human Services.

FACTS

This matter was scheduled for a hearing on October 13, 2016, before the State Records Committee (“Committee”). The morning of the hearing, the executive secretary for the Committee was informed that because of an unexpected circumstance, assigned legal counsel from the Utah Attorney General’s Office for the Utah Department of Human Services (“DHS”) would be unable to attend the hearing and argue on behalf of DHS. Another Assistant Attorney General, who was not prepared to argue on behalf of DHS, attended the hearing on behalf of DHS and requested a continuance of the hearing in order to ensure that DHS’s legal interests were properly represented before the Committee.

STATEMENT OF REASONS FOR DECISION

1. Hearing procedures for the Committee do not provide a mechanism for a governmental entity to request a postponement of an appeal before the Committee. Utah Admin. Code R. 35-1-2(13)(c) states that the “Committee will ordinarily deny a governmental entity’s request to postpone the hearing, unless the governmental entity has obtained the petitioner’s prior consent to reschedule the hearing date.”

2. However, when considering the circumstances surrounding this request for a continuance by DHS, the Committee finds that DHS would have been unfairly prejudiced if the hearing was not continued. Utah Code § 63G-2-403(8) states that at the hearing, the Committee “shall allow the parties to testify, present evidence, and comment on the issues.” Although Utah Admin. Code R. 35-1-2(13)(c) states that the Committee will ordinarily deny a governmental entity’s request to postpone a hearing unless consent has been obtained from the Petitioner, the rule does not preclude the Committee from granting a request for a postponement when circumstances justify the request. Accordingly, DHS’s request for a continuance is granted.

ORDER

The hearing is CONTINUED to the next available hearing date.

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.

Entered this 24th day of October 2016.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee