State Records Committee Appeal Decision 2021-31

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DONALD ANDERSON, Petitioner, v.

DEPARTMENT OF WORKFORCE SERVICES, Respondent.

DECISION AND ORDER

Case No. 21-31

By this appeal, Petitioner, Donald Anderson, appeals the decision of Respondent, the Department of Workforce Services (“DWS”), denying his request for records held by DWS.

FACTS

On or around November 30, 2020, Mr. Anderson submitted a request pursuant to the Government Records Access and Management Act (“GRAMA”) to DWS requesting records submitted to DWS on November 20, 2020 by the Center for Family Evaluation and Treatment. Among the requested records, Mr. Anderson specifically requested Form 20M and Form 1GA. Mr. Anderson was himself the subject for all of the records sought in his request.

On December 2, 2020, DWS denied the release of Form 20M and the accompanying health evaluation. That same day, DWS released all other requested records, including Form 1GA. In explaining its denial of Form 20M, DWS stated that it had classified Form 20M as a controlled record and that under statute, it could not release that controlled record to Mr. Anderson.

On December 9, 2020, Mr. Anderson appealed the denial to the DWS’s Executive Director. On December 12, 2020, the Deputy Director for DWS issued a written response denying Mr. Anderson’s appeal. On January 28, 2021, Mr. Anderson filed an appeal with the State Records Committee (“Committee”). At an electronic hearing held on May 13, 2021, the parties presented their arguments to the Committee. After considering the arguments from all 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 that contain medical, psychiatric, or psychological data about an individual, are controlled records if properly classified by a governmental entity and the governmental entity reasonably believes that: (1) Releasing the information in the record to the subject of the record would be detrimental to the subject’s mental health or to the safety of any individual; or (2) Releasing the information would constitute a violation of normal professional practice and medical ethics. Utah Code § 63G-2-304.

3. GRAMA states that a controlled record may be disclosed under certain circumstances including to individuals related to the medical field after a release from the subject of the record, pursuant to a court order, or pursuant to a legislative subpoena. Utah Code § 63G-2-202(2)(a). GRAMA also states that a person who receives a controlled record “may not disclose controlled information from that record to any person, including the subject of the record.” Utah Code § 63G-2-202(2)(b).

4. In the present case, counsel for DWS argued that the Form 20M was properly classified as a controlled record and cannot be released to Mr. Anderson pursuant to Utah Code § 63G-2-202(2). Counsel also stated that when DWS receives confirmation from the mental health provider that Form 20M was safe to be released to Mr. Anderson, DWS would release it to Mr. Anderson.

5. After having reviewed all evidence including the testimony and arguments presented at the hearing, the Committee finds that DWS properly classified Form 20M as a controlled record. The Committee further finds that as a controlled record, it is not subject to disclosure to Mr. Anderson even though he is the subject of the record.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Donald Anderson, 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 24 day of May 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee