State Records Committee Appeal Decision 2021-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DARREN ROSENSTEIN, Petitioner, v.

UTAH DEPARTMENT OF TRANSPORTATION. Respondent.

DECISION AND ORDER

Case No. 21-08

The present appeal was originally heard by the State Records Committee (“Committee”) on January 14, 2021, with each of the parties participating electronically. See, Rosenstein v. Utah Dept. of Transp., State Records Committee Case No. 21-02 (Jan. 25, 2021). The Committee unanimously voted to continue the hearing to the next available Committee hearing date in order to allow the Committee the necessary time to complete an in camera review of the records. Id. After having reviewed all provided records in camera, the Committee held a second electronic hearing on February 11, 2021. The Committee determined that the sample that had been provided to the Committee for its in camera review did not include all eight parts of Mr. Rosenstein’s records request. The Committee also determined that Respondent needs to classify the records as public or non-public with appropriate citations in order to allow the Committee to determine if Respondent’s classifications of the records is correct.

During the hearing, the Committee addressed the issue of whether Respondent could deny Mr. Rosenstein’s records request made pursuant to the Government Records Access and Management Act (“GRAMA”). Respondent argued that since Mr. Rosenstein, the TEA Group, and its affiliated entities, were involved in informal adjudicative proceedings with Respondent, the requested records did not have to be disclosed because the Utah Administrative Procedures Act (“UAPA”) prohibited discovery. See, Utah Code § 63G-4-203(1)(e) & (f). Counsel for Respondent contended that if Respondent was not required to provide records to Mr. Rosenstein pursuant to UAPA, Respondent was also not required to provide records to Mr. Rosenstein pursuant to GRAMA.

After carefully considering Respondent’s arguments, the Committee finds that they have no merit. Although Utah Code § 63G-2-201(6)(a) states that if disclosure of a record is governed or limited pursuant to another state statute, disclosure is governed by the specific provisions of that statute, it would be illogical to deny a person access to a record that is otherwise considered a public record. A person has the right to inspect a public record free of charge and the right to take a copy of a public record subject to §§ 63G-2-203 & -204. A request for a public record under GRAMA is different than a discovery request or a subpoena. “Subpoenas and other methods of discovery under the state or federal statute or rules of civil, criminal, administrative, or legislative procedures are not written requests under Section 63G-2-204.” Utah Code § 63G-2-207(1). Additionally, UAPA does not apply to GRAMA except as provided in Utah Code § 63G-2-603. Utah Code § 63G-2-104.

A person’s right to inspect a public record and take a copy of a public record should not be limited simply because the person is involved in litigation or administrative proceedings. If such a limitation was allowed, it would lead to the absurd result that one person could be denied access to a public record while any other person requesting the same record would be granted. The intent of the Legislature through GRAMA is to “promote the public’s right of easy and reasonable access to unrestricted public records.” Utah Code § 63G-2-102(3)(a). Denial of access to a public record to any person subject only to the limitations of §§ 63G-2-203 & -204, is not consistent with the legislative intent to provide the public easy, reasonable, and unrestricted access to public records.

Accordingly, Respondent is ordered to continue gathering records responsive to Mr. Rosenstein’s records request, classify the records as public or non-public with appropriate citations, and provide the records to the Committee to review in camera. The present case is continued until the next available hearing date.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Darren Rosenstein is hereby CONTINUED.

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 22 day of February 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee