State Records Committee Appeal Decision 2021-41

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

FLORENE HOLDAWAY, Petitioner, v.

UTAH DEPARTMENT OF HUMAN SERVICES, Respondent.

DECISION AND ORDER

Case No. 21-41

By this appeal, Petitioner, Florene Holdaway, requests access to records allegedly held by Respondent, the Utah Department of Human Services.

FACTS

On a form dated November 15, 2020, Ms. Holdaway filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) with the Utah Division of Child and Family Services (“DCFS”). Ms. Holdaway requested a specified report filed with DCFS in July 2020. In a letter dated November 25, 2020, the GRAMA Specialist for DCFS denied the request. Ms. Holdaway filed an appeal with Respondent. In a letter dated December 30, 2020, Sonia Sweeney, Chief Administrative Officer for Respondent, upheld the denial for the request for records, finding that release of the records could impede a criminal investigation.

An appeal filed by Ms. Holdaway was received by the State Records Committee (“Committee”) on January 15, 2021. On July 8, 2021, the Committee held a hearing where the parties were allowed to participate in person and electronically. After carefully considering the parties’ arguments and the evidence presented, 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. A record to which access is restricted pursuant to another state statute is also considered non- public pursuant to GRAMA. Utah Code § 63G-2-201(3)(b).

2. Records created or maintained for civil, criminal, or administrative enforcement purposes, are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to interfere with investigations undertaken for enforcement or discipline purposes. Utah Code § 63G-2-305(10)(a). Additionally, when DCFS makes a report or other information available to specified individuals, DCFS “shall remove from the report” names, addresses, and telephone numbers or other specific information that could identify the referent in the report, impede a criminal investigation, or endanger an individual’s safety. Utah Code § 62A-4a-412(3)(b).

3. In the present case, counsel for Respondent stated that between the date of Ms. Holdaway’s appeal with the Committee and the date of the hearing, all responsive records had been given to Ms. Holdaway with redactions made pursuant to Utah Code § 62A-4a-412(3)(b). The records were released to Ms. Holdaway because the initial investigation had been completed and the release of the records would no longer impede DCFS’s investigation.

4. After having considered the evidence and arguments of the parties, the Committee finds that

Ms. Holdaway has received all public records responsive to her records request. Redactions were proper pursuant to Utah Code § 62A-4a-412(3)(b).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Florene Holdaway, 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 19 day of July 2021

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee