State Records Committee Appeal Decision 2020-58

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

J. ROBERT LATHAM, Petitioner, v.

UTAH DEPARTMENT OF HUMAN SERVICES. Respondent.

DECISION AND ORDER

Case No. 20-58

By this appeal, Petitioner, J. Robert Latham, seeks access to records allegedly held by Respondent, Utah Department of Human Services.

FACTS

On or about April 10, 2020, Mr. Latham made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Latham requested, “the Office of Quality and design’s source material…” for specific statements contained in its 2018 and 2019 Southwest Qualitative Case Review (“QCR”) reports.

Respondent made a determination that there were no records responsive to the request of which Mr. Latham was the subject of the records under Utah Code § 63G-2-202. Respondent also made a determination that records responsive to the request of which Mr. Latham was not the subject of the records should be classified as protected pursuant to Utah Code § 63G-2-305.

In a letter dated May 28, 2020, Mr. Latham appealed the denial to the Chief Administrative Officer. The Chief Administrative Officer upheld the denial. Thereafter, Mr. Latham filed an appeal with the State Records Committee (“Committee”). On November 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. 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: (1) Reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; or (2) 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 interfere with enforcement or audit efforts. Utah Code § 63G-2-305(10)(b) & (d).

3. Records the disclosure of which would jeopardize the security of governmental property, governmental programs, or governmental recordkeeping systems from damage, theft or other appropriation or use contrary to law or public policy, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(12).

4. Counsel for Respondent argued that the requested records were properly classified as protected records. Counsel stated that the QCR process involves interviewing participants in the child welfare process and is an audit and review function of the Utah Division of Child and Family Services. The comments in the report reflect the opinions of private citizens who are interviewed, and the interview comments/notes are summarized into a report that guides systemic improvement.

5. After having considered the written and oral arguments of the parties, the Committee finds that the requested records were properly classified as protected records pursuant to Utah Code §§ 63G-2-305(10)(b), -305(10)(d), and -305(12). The records are considered audit records and disclosure of the records would jeopardize the security of government programs for uses contrary to law or public policy. While Mr. Latham argues he has an interest in reviewing the records, Respondent has demonstrated a greater public interest in keeping these records non-public in order to allow the QCR process to properly continue.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, J. Robert Latham 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 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 23 day of November 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee