State Records Committee Appeal Decision 2020-23

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JILL McCLUSKEY, Petitioner, v.

UNIVERSITY OF UTAH, Respondent.

DECISION AND ORDER

Case No. 20-23

By this appeal, Petitioner, Jill McCluskey, natural mother and personal representative of the estate of Lauren McCluskey, seeks access to records allegedly held by Respondent, the University of Utah.

FACTS

On October 22, 2018, Lauren McCluskey, a student at the University of Utah, was kidnapped and murdered by Melvin Shawn Rowland. On December 17, 2019, Petitioner made a records request of Respondent for “all student counseling records regarding Lauren McCluskey…including but not limited to records from the University Counseling Center and the Psychology and Wellness service…” Petitioner also requested “any other records that might indicate who has accessed Lauren McCluskey’s counselling records…”

On January 27, 2020, Respondent denied Petitioner’s request, stating that to the extent any records exist, the records would be classified as controlled records pursuant to Utah Code § 63G-2-304, and therefore, would not be released to Petitioner. Petitioner filed an appeal of this decision and in a letter dated March 4, 2020, Gregory C. Thompson, Appeals Officer for Respondent, affirmed the denial of Petitioner’s records request. Mr. Thompson stated that “a student’s mental health records, including those of a deceased student, are classified as ‘controlled’” records under the Government Records Access and Management Act (“GRAMA”). Mr. Thompson also stated that if Lauren McCluskey had sought and received counseling from a mental health professional at the University, “her records would not have been shared with anyone outside of those providing counseling unless Ms. McCluskey herself had requested the release of such records.”

In a letter dated March 27, 2020, Petitioner filed an appeal with the State Records Committee (“Committee”). On June 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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. A record is considered a controlled record if properly classified by a governmental entity and: (1) The record contains medical, psychiatric, or psychological data about an individual and; (2) Releasing the information in the record would constitute a violation of normal professional practice and medical ethics. Utah Code § 63G-2-304.

3. Under GRAMA, access to a controlled record by the subject of the record can only be granted through a court order pursuant to Utah Code § 63G-2-202(7). See, Utah Code § 63G-2-202(2)(a)(ii)(A). However, GRAMA also states that the disclosure of a record to which access is governed or limited pursuant to court rule, another state statute, federal statute, or federal regulation, is governed by the specific provisions of that statute, rule, or regulation. Utah Code § 63G-2-201(6).

4. A mental health therapist under the Mental Health Professional Practice Act, may not disclose any confidential communication with a client or patient without the express consent of either: (1) The client or patient, or (2) The authorized agent of the client or patient. Utah Code § 58-60-114(1)(a) & (c). Similarly, a psychologist under the Psychologist Licensing Act, may not disclose any confidential communication with a client or patient without the express consent of either: (1) The client or patient, or (2) The authorized agent of the client or patient. Utah Code § 58-61-602(1)(a) & (c).

5. Based upon the representations of attorney James W. McConkie at the hearing that he is legal counsel for Jill McCluskey and that Jill McCluskey is the personal representative of the estate of Lauren McCluskey, the Committee finds that Petitioner is the authorized agent of Lauren McCluskey. Accordingly, the requested records if they exist, should be released by Respondent to Petitioner pursuant to §§ 58-60-114(1)(a) & (c) and 58-61-602(1)(a) & (c). See also, Utah Code § 63G-2-201(6).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jill McCluskey, is hereby GRANTED.

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 19th day of June 2020.

BY THE STATE RECORDS COMMITTEE

KENNETH WILLIAMS, Chair Pro-Tem
State Records Committee