State Records Committee Appeal Decision 2020-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RAYMOND FITZGERALD, Petitioner, v.

DIVISION OF CONSUMER PROTECTION, Respondent.

DECISION AND ORDER

Case No. 20-13

By this appeal, Petitioner, Raymond Fitzgerald on behalf of Day Pacer LLC, seeks access to records held by Respondent, Division of Consumer Protection.

FACTS

On a form dated on about July 22, 2019, Mr. Fitzgerald submitted a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Fitzgerald requested records relating to a Complaint that was filed against Day Pacer, LLC including an unredacted copy of the Complaint.

On August 5, 2019, a records officer for Respondent notified Mr. Fitzgerald that his records request had been denied because the records were classified as protected pursuant to Utah Code § 63G-2-305(10)(d). Mr. Fitzgerald appealed the denial and on September 11, 2019, an individual designated by the chief administrative officer for the Utah Department of Commerce upheld the records officer’s denial.

On October 9, 2019, Mr. Fitzgerald filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on February 21, 2020, reviewing the records in camera and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

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.

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).

In the present case, Mr. Fitzgerald has been provided with a redacted copy of the Complaint. However, Mr. Fitzgerald has requested an unredacted copy of the Complaint in order to determine the identity of the person who filed a complaint against Day Pacer, LLC. Respondent argued that protecting the identity of the person who filed the complaint is very important because the “complainant here informed Respondent that the complainant fears retaliation from Petitioner.”

After having reviewed the written and oral arguments of the parties and having conducted an in camera review of the Complaint, the Committee finds that Respondent properly classified the Complaint as a protected record pursuant to Utah Code § 63G-2-305(10)(d). The Committee is persuaded by Respondent’s argument that release of an unredacted copy of the Complaint reasonably could be expected to disclose the identity of a source who is not generally known outside of government.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Raymond Fitzgerald on behalf of Day Pacer, LLC is hereby 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 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

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PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee