State Records Committee Appeal Decision 2016-45

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. 16-45

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

FACTS

In a letter dated January 12, 2016, Mr. Duran made a request for records pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to the Millcreek Youth Center in Ogden, Utah. Theresa M. Oram, the Records Officer for Utah Division of Juvenile Justice Services, denied Mr. Duran’s records request in a letter dated January 27, 2016. Ms. Oram stated that the requested records could not be disclosed because they had been classified as private and controlled records under GRAMA. Ms. Oram further stated that Mr. Duran had a right to appeal the denial to Sonia Sweeney, Chief Administrative Officer of DHS “within thirty (30) days of the date of this denial.”

In a document dated April 20, 2016, Mr. Duran filed an appeal with Ms. Sweeney. In a letter dated May 11, 2016, Ms. Sweeney dismissed Mr. Duran’s appeal as untimely pursuant to Utah Code § 63G-2-401, stating that the appeal “was filed well over 30 days.” Mr. Duran filed an appeal of DHS’s dismissal with the Committee. On October 13, 2016, a hearing was before the State Records Committee (“Committee”), but because of an unexpected circumstance, assigned legal counsel for DHS was unable to attend the hearing to argue on behalf of DHS. See, Duran v. Utah Dept. of Human Services, State Records Committee Order 16-40 (Oct. 24, 2016). The Committee ordered a continuance of the matter to the next available hearing date. Id. On November 10, 2016, the Committee held a hearing where the parties were allowed to present their legal arguments to determine whether the Committee could still hear Mr. Duran’s appeal even though it was filed untimely. After considering all arguments by the parties and reviewing all written materials, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. A requester or interested party may appeal an access denial to the chief administrative officer of the governmental entity by filing a notice of appeal with the chief administrative officer within 30 days after: (1) The governmental entity sends a notice of denial under Utah Code § 63G-2-205, if the governmental entity denies a request under -205(1); or (2) The record request is considered denied under Utah Code § 63G-2-204(8) if that subsection applies. Utah Code § 63G-2-401(1).

2. Ms. Oram’s denial letter of Mr. Duran’s records request was dated January 27, 2016. The date on the document filed by Mr. Duran with DHS appealing Ms. Oram’s denial was April 20, 2016. Mr. Duran acknowledged that his appeal was filed more than thirty days after Ms. Oram’s denial, but argued that the lateness of his appeal should be allowed due to “excusable neglect.”

3. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds Mr. Duran’s appeal with DHS was untimely pursuant to Utah Code § 63G-2-401(1). The appeal was filed well beyond thirty days after the date Ms. Oram sent notice of the denial, and the Utah Code does not provide a mechanism to enlarge the appeal period due to the “excusable neglect” of the requester or an interested party. Accordingly, the decision of DHS to dismiss Mr. Duran’s appeal as untimely is upheld.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, James Duran, is not timely, and is therefore 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 22nd day of November 2016.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee