State Records Committee Appeal Decision 2020-12

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

AI-NING HSU, Petitioner, v.

UTAH DIVISION OF CHILD AND FAMILY SERVICES, Respondent.

DECISION AND ORDER

Case No. 20-12

By this appeal, Petitioner, Ai-Ning Hsu, seeks access to records held by Respondent, the Utah Division of Child and Family Services.

FACTS

On June 10, 2019, attorney Jana Dickson Tibbitts, counsel for Ms. Hsu, filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Tibbitts requested records related to specific cases regarding Protective Supervision Services and Foster Care. In a letter dated June 24, 2019, the GRAMA Administrator for the Utah Division of Child and Family Services (“DCFS”) estimated that the cost to complete the records request would be $2,987.50 because there were “over 10,000 pages of emails responsive to your request.” On July 10, 2019, Ms. Hsu filed a request with DCFS for a fee waiver claiming that releasing the documents would primarily benefit the public, she is the subject of the documents, and that the documents directly affect her legal rights.

On July 19, 2019, Ms. Hsu filed an appeal to the chief administrative officer for DCFS, Sonia Sweeney, Director of the Utah Department of Human Services (“DHS”). Ms. Hsu stated that she was “legally entitled to review the requested communications” and that the requested records “have a direct bearing on safely planning and decision making…” In a letter dated August 5, 2019, Ms. Sweeney wrote that Ms. Hsu’s appeal was based upon the two GRAMA requests dated June 10, 2019 and July 10, 2019. Ms. Sweeney noted that in regard to the June 10, 2019 request, “DCFS had fulfilled the balance of the request without charge.” In regard to the July 10, 2019 request, Ms. Sweeney stated that DCFS is going to waive the fees for the request for electronic communication as described in the first request and that notice of the date by which DCFS anticipates being able to complete her request would be sent to her.

In a letter dated July 22, 2019, the GRAMA Specialist for DCFS denied in whole or in part Ms. Hsu’s request for certain records. In a letter dated August 13, 2019, the GRAMA Administrator for DCFS gave notice that because the request is so voluminous, the work would be completed as soon as reasonably possible with all text messages provided on or before August 21, 2019 and all emails and instant messages on or before September 9, 2019. In a second letter dated August 13, 2019, the GRAMA Specialist for DCFS stated that the purpose of the “letter is to correct and clarify the letter dated July 22, 2019.” The letter clarified that some records had been provided on July 22, 2019, but there was still a partial denial regarding certain records and a full denial regarding other records.

On August 19, 2019, Ms. Tibbitts on behalf of Ms. Hsu filed a notice of appeal with Ms. Sweeney referencing the July 22, 2019 and August 13, 2019 letters from the DCFS GRAMA Specialist, and the August 13, 2019 letter from the DCFS GRAMA Administrator. An appeal dated August 22, 2019 was filed by Ms. Tibbitts on behalf of Ms. Hsu regarding the August 13, 2019 notice to extend time for fulfilling the records request. An appeal dated August 23, 2019 was filed by Ms. Tibbitts on behalf of Ms. Hsu for the second set of partial disclosures of records.

In a letter dated September 4, 2019, Ms. Sweeney addressed the August 19, 2019 appeal, stating that she was directing DCFS to redact certain records and provide them to Ms. Hsu “as soon as possible” but “no later than ten business days”. In a letter dated September 6, 2019, Ms. Sweeney addressed the August 22, 2019 appeal, finding that DCFS’s claim of extraordinary circumstances was reasonable. In a letter dated September 10, 2019, Ms. Sweeney addressed the August 23, 2019 appeal, finding that some of the information needed to remain non-public and directed DCFS to “provide new copies of some of the previously redacted text messages and copies of additional text messages, consistent with my decision, to your client as soon as possible” but “no later than ten business days”. The DCFS GRAMA Specialist provided records to Ms. Hsu with a letter dated September 11, 2019. A second letter from the DCFS GRAMA Specialist which was dated September 24, 2019, providing records based upon Ms. Sweeney’s September 10, 2019 letter.

On October 11, 2019, Ms. Tibbitts on behalf of Ms. Hsu, filed an appeal with the State Records Committee (“Committee”), stating that “Ms. Hsu continues to seek the complete records requested on June 10, 2019.” On February 21, 2020, the Committee held a hearing regarding the present appeal, and after carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are classified as private, protected, or controlled pursuant to Utah Code §§ 63G-2-302, -303, -304 and -305, are not public records pursuant to Utah Code § 63G-2-301(3)(a). Additionally, records to which access is restricted by another state statute are not public records. Utah Code § 63G-2-201(3)(b). The disclosure of a record to which access is governed by another state statute is governed by the specific provisions of that statute. Utah Code § 63G-2-201(6)(a).

Reports made under Title 62A Utah Human Services Code, Chapter 4a Child and Family Services, Part 4 Child Abuse or Neglect Reporting Requirements, as well as any other information in the possession of DCFS obtained as a result of a report, are considered private, protected, or controlled records under GRAMA, and may only be made available to those individuals or entities listed in Utah Code § 62A-4a-412(1)(a) through (n). Utah Code § 62A-4a-412(1)(e) provides that except as provided in Utah Code § 63G-2-202(10), a subject of the report, the natural parents of the child, or the guardian ad litem, may have access to reports made under Part 4 Child Abuse or Neglect Reporting Requirements, as well as other information in possession of DCFS as a result of the reports.

After considering the evidence presented to the Committee including written and oral arguments and reviewing the disputed records in camera, the Committee finds that DCFS should release reports and other information in possession of DCFS where Ms. Hsu is the subject of the report or is the natural parent of a child in the report pursuant to Utah Code § 62A-4a-412(1)(e). However, other information in the subject records not directly related to Ms. Hsu as the subject or parent of a child in the records, shall remain non-public and not be disclosed to Ms. Hsu.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ai-Ning Hsu is hereby GRANTED as outlined in this Order.

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 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 3rd day of March 2020

BY THE STATE RECORDS COMMITTEE

____________________________________

PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee