State Records Committee Appeal Decision 2020-43

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KSL-TV, Petitioner, v.

UTAH DEPARTMENT OF HEALTH. Respondent.

DECISION AND ORDER

Case No. 20-43

By this appeal, Cindy St. Clair, on behalf of KSL-TV, seeks access to records allegedly held by Respondent, the Utah Department of Health.

FACTS

On or about April 30, 2020, Ms. St. Clair, made two records requests pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. St. Clair requested “[a]ll complaints regarding nursing homes from Feb. 1, 2020 to current date” for the purpose of obtaining information on “how nursing homes are handling COVID and notifying residents’ families.” Ms. St. Clair stated that the personal information regarding individuals should be redacted, but wanted the information regarding the names and locations of the facilities, narratives of any complaints, and the dates of the complaints to remain. Ms. St. Clair also requested a complete list of all Utah nursing and assisted living homes that have had COVID-19 positive residents, the number of positive residents per location, and a listing of any deaths of residents from COVID-19 at the locations.

On May 14, 2020, Respondent sent an e-mail to Ms. St. Clair stating that beginning on May 14, 2020, Respondent will include on their dashboard information relating to the records request including the names of facilities with active COVID-19 cases, a cumulative number of residents who have tested positive, and the number of resident deaths in licensed facilities. The e-mail noted that “this is all the information we will be releasing.”

On May 20, 2020, Ms. St. Clair appealed the partial denial to Chief Administrative Officer, Dr. Joe Miner. In a letter dated June 3, 2020, Dr. Miner denied the appeal stating that the requested information could not be released because of the confidentiality provisions found in the Utah Communicable Disease Control Act.

On June 4, 2020, Ms. St. Clair filed an appeal on behalf of Petitioner with the State Records Committee (“Committee”). On September 10, 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 to which access is restricted pursuant to another state statute are not public records. Utah Code § 63G-2-201(3)(b).

2. According to the Utah Communicable Disease Control Act, information collected pursuant to the Act in the possession of Respondent or local health departments “relating to an individual who has or is suspected of having a disease designated by the department as a communicable or reportable disease…shall be held by the department and local health departments as strictly confidential.” Utah Code § 26-6-27(1).

3. However, a review of the records request made by Ms. St. Clair shows that she was not interested in obtaining any “personal information” regarding the individuals who have tested positive for COVID-19. During the hearing with the Committee, Ms. St. Clair stated that she expected individual information to be redacted because the purpose of obtaining the information was to show the public the effectiveness of individual nursing homes in handling the COVID-19 crisis.

4. After considering all of the evidence including the testimony presented by the parties, the Committee is convinced that release of general information regarding COVID-19 cases in nursing homes in possession of Respondent with proper redactions of individuals’ personal information, will not violate Utah Code § 26-6-27(1). Information about the number of cases for each nursing home will not reveal personal information regarding individuals within those nursing homes. Accordingly, Respondent is directed to provide records responsive to the present records request with appropriate redactions consistent with this Order.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Cindy St. Clair on behalf of KSL-TV 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 21 day of September 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee