State Records Committee Appeal Decision 2017-27

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL G. AMANN, Petitioner, v.

DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.

DECISION AND ORDER

Case No. 17-27

By this appeal, Petitioner, Paul G. Amann, seeks access to records held by Respondent, Utah Department of Human Resource Management (“DHRM”). This matter originally came before the State Records Committee (“Committee”) for a hearing held on June 8, 2017. The hearing was continued to a later date to allow the Committee to properly review the disputed records. See, Amann v. Utah Dept. of Human Resource Mgmt., State Records Committee Case No. 17-21 (June 19, 2017). After reviewing the records in camera, the Committee held a hearing on August 10, 2017, and 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 § 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.

2. Records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, are private if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a).

3. GRAMA also specifies that records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are protected if properly classified by a governmental entity if such 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; or reasonably could 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)(d) & -305(10)(e).

4. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).

5. Drafts unless they are otherwise classified as public, are protected records pursuant to Utah Code § 63G-2-305(22).

6. Pursuant to Utah Code § 63G-2-305(25), records, other than personal evaluations, that contain a personal recommendation concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal privacy, or disclosure is not in the public interest, are considered protected if properly classified by a governmental entity.

7. The Committee after having reviewed the records submitted to them from DHRM, for the purpose of discussion during their deliberations, divided the records into two broad categories, each category noting a specific Bates stamped number: (1) physical paper documents and (2) electronic documents. Based upon the above cited statutes, the Committee finds that the proper classification of the records should be as follows:

Physical Paper Documents

Bates Stamp Number	Classification	Supporting Statute
3e, 3g, 3h pp. 1-4, 3m pg.1, 3o, 3p, 3q, 3s, 3t, 3u, 3w, 3y, 3aa, 3cc, 3dd, 3ee	Public	Utah Code § 63G-2-201(2)
3a, 3b, 3d, 3f, 3j, 3k, 3i, 3n, 3r, 3v, 3x, 3z, 3bb	Protected	Utah Code § 63G-2-305(10)(d) and (18).
3c, 3h, 3l, 3m pp. 2-4	Private	Utah Code § 63G-2-302(2)(a)

Electronic Documents

Bates Stamp Number	Classification	Supporting Statute
9, 11, 12, 13, 16c, 16d, 18-23, 25, 26, and 36-45	Protected	Utah Code § 63G-2-305(10)(d)
5, 6, 7, 16a, 17, 24, 29-32, 33, and 34	Protected	Utah Code § 63G-2-305(10)(d) and/or (e).
16b, 28	Public	Utah Code § 63G-2-201(2)
8, 10, 27, and 35	Private, but record shall be released to Mr. Amann if he is the subject of the record. Utah Code § 63G-2- 202(1)(a)	Utah Code § 63G-2-202(1)(a) and Utah Code § 63G-302(2)(a) and (d)
14	Protected	Utah Code § 63G-2-305(22).
1	Private and Protected	Utah Code § 63G-2-305(10) and (25), and private under Utah Code § 63G-2-302(2)(a).
2, 3, and 4	Protected with the exception of tabs 3 and 8 which contain both public and protected information, and tab 7 that contains public information. For tab 3, columns I and J should be redacted, and tab 8, columns F and G should be redacted.	Utah Code § 63G-2-305(10)(d) and (e), and public under Utah Code § 63G-2-201(2).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul G. Amann, 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 21st day of August 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee