State Records Committee Appeal Decision 2018-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

GIZMODO MEDIA GROUP, Petitioner, v.

UTAH DEPARTMENT OF COMMERCE, DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING, Respondent.

DECISION AND ORDER

Case No. 18-14

By this appeal, Petitioner, Gizmodo Media Group, seeks access to records held by Respondent, Utah Department of Commerce, Division of Occupational and Professional Licensing (“DOPL”).

FACTS

On or about December 7, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested various records related to complaints, investigations and citations regarding a specific individual.

Respondent granted a portion of the request and provided approximately 16 pages of records and a CD containing videos, redacted a portion of the request classified as private and/or protected, and denied the remainder of the request.

On or about January 3, 2018, Petitioner appealed the redaction and denial of the request to the Executive Director of Commerce. Thereafter, the denial was upheld, and the appeal was denied in its entirety.

Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having reviewed the records in camera and having heard oral argument and testimony on April 12, 2018, now 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 created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity, if release of the records reasonably could 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. Utah Code § 63G-2-305(10)(d).

3. Records containing data on individuals are private if properly classified by a governmental entity if disclosure of the records constitute a clearly unwarranted invasion of personal privacy. Utah Code § 63G-2-302(2)(d)

4. Petitioner argued that the records being requested would reveal information that would be beneficial to the public. Respondent argued that redactions of names, contact information, witnesses, and the names of other individuals were necessary because disclosure would reveal the identity of a source generally not known outside of government and/or constitute a clearly unwarranted invasion of personal privacy.

5. After having reviewed the written and oral arguments of the parties and having reviewed the records in camera, the Committee finds that Respondent properly classified the records as private pursuant to Utah Code § 63G-2-302(d) and/or as protected pursuant to Utah Code § 63G-2-305(10)(d).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Gizmodo Media Group 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 a parties’ 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. Utah Code § 63G-2-403(15)(d)(i)(B). 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 April 2018

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee