State Records Committee Appeal Decision 2022-43

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

IAN COOPERSTEIN, Petitioner, v.

ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 22-43

By this appeal, Ian Cooperstein (“Petitioner”), seeks access to records alleged to be held by the Utah Attorney General’s Office (“Respondent”).

FACTS

On or about February 6, 2022, Petitioner submitted to Respondent a request for the following records: “[A]ll of the communications that the office of the Attorney General had with employees at attorneys of the law firm of McConkie-Collinwood-Adams . . . from December 2019 through December 2021.” Petitioner later clarified that he was seeking only “communications related to [him] and/or [his] case that was before the Utah Labor Commission . . . [including] all communications with Assistant Attorney Generals Paul Tonks, William Evans, Chris Hill, and Stephen Geary with any and all employees of McConkie-Collinwood-Adams.”

In a response dated March 29, 2022, Petitioner was provided 51 pages of email records identified as responsive to his request. The records were classified as public but included several redactions of information classified as private under Utah Code § 63G-2-302(2)(d) on the grounds that disclosure would be a clearly unwarranted invasion of personal privacy. On March 31, 2022, Petitioner submitted an appeal to Respondent’s Chief Administrative Officer (CAO), asserting that the records received indicated the possible existence of additional records that had not been provided and challenging the basis for the redactions. On April 14, 2022, Daniel Burton, acting as Respondent’s CAO, denied Petitioner’s appeal. Mr. Burton explained that, despite further follow up, no additional records were found. Regarding the redactions, Mr. Burton affirmed the redacted information was properly classified as private under Utah Code § 63G-2-302(2)(d). Mr. Burton further determined that the redacted information was also properly classified as private under Utah Code § 63G-2-302(1)(b) and, therefore, could not be released pursuant to his weighing authority under Utah Code § 63G-2-401(6).

On May 5, 2022, Petitioner appealed Mr. Burton’s CAO decision by submitting this appeal to the Utah State Records Committee. On September 15, 2022, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. The Committee voted to review the redacted records in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

Pursuant to Utah Code § 63G-2-302(1)(b), “records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data” is classified as private. Additionally, “other records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy” are also classified as private, pursuant to Utah Code § 63G-2-302(2)(d).

Under Utah Code § 63G-2-202(1)(a), a governmental entity is required to disclose a private record to certain individuals, such as the subject of the record. Further, Utah Code §63G-2-202(3) states if there is more than one subject of a private record, the portion of the private record that pertains to the other subject(s) is required to be segregated from the portion of the private record to which the requester is entitled.

If an individual is not entitled to access to a private record under Utah Code § 63G-2-202(1), a requester may potentially obtain access to a private record through the Committee, under Utah Code § 63G-2-202(9)(b), but only if the public interest favoring access is greater than or equal to the interest favoring restriction of access.

In this case, Mr. Cooperstein was provided records, albeit with a very small number of redactions. The information redacted from the records was properly classified as private under Utah Code §§ 63G-2-302(2)(d) and/or 63G-2-302(1)(b).

Because Mr. Cooperstein is not the subject of the redacted portions of the records and is not an individual otherwise expressly entitled to the private records under Utah Code § 63G-2-202, he may obtain access to the redacted portions pursuant to Utah Code § 63G-2-202(9)(b), but only if the public interest favoring his access is greater than or equal to the interest favoring restriction of access. However, the Committee cannot conclude that the public interest in granting Mr. Cooperstein access to the redacted portions of the records is greater than or equal to the interest favoring restricting his access to the redacted portions of the records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ian Cooperstein, 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 26 day of September 2022

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee