State Records Committee Appeal Decision 2021-58

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DARREN ROSENSTEIN, Petitioner, v.

UTAH DEPARTMENT OF TRANSPORTATION, Respondent.

DECISION AND ORDER

Case No. 21-58

By this appeal, Petitioner, Darren Rosenstein seeks access to records held by Respondent, Utah Department of Transportation. The parties have appeared before the State Records Committee (“Committee”) several times including October 28, 2021, where the parties were allowed to present their evidence and their legal arguments. See, Rosenstein v. Utah Dept. of Transp., Case No. 21-53 (Nov. 8, 2021). After reviewing the records in camera, the Committee held another hearing on November 18, 2021 and hereby issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. In order to help the Committee, Respondent, the Utah Department of Transportation, provided color coordinated copies of the disputed records to the Committee. Accordingly, for clarity for the parties, this Order will refer to each group of records by their color grouping.

2. The pink group of records have been classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(10)(a), -305(10)(d), and -305(18). 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 investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; 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 compromise the source. Utah Code § 63G-2-305(10)(a) & (d). Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).

3. After reviewing the pink group of records in camera, the Committee finds that Respondent properly classified these records as protected records pursuant to Utah Code §§ 63G-2-305(10)(a), -305(10)(d), and -305(18).

4. The blue group of records have been classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(10)(b) and -305(22). Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are properly classified protected records by a governmental entity if release of the records reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings. Utah Code § 63G-2-305(10)(b). Drafts, unless otherwise classified as public, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(22).

5. After reviewing the blue group of records in camera, the Committee finds that Respondent properly classified these records as protected records pursuant to Utah Code §§ 63G-2-305(10)(b) and -305(22).

6. The green group of records have been classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(10)(a) and -305(22). After reviewing the green group of records in camera, the Committee finds that Respondent properly classified these records as protected records pursuant to Utah Code §§ 63G-2-305(10)(a) and -305(22).

7. The white group of records have been classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(17) and -305(18). Records that are subject to the attorney client privilege are protected records if properly classified by the governmental entity pursuant to Utah Code § 63G-2-305(17). After reviewing the white group of records in camera, the Committee finds that Respondent properly classified these records as protected records pursuant to Utah Code §§ 63G-2-305(17) and -305(18).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Darren Rosenstein, 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 30th day of November 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee