State Records Committee Appeal Decision 2023-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JAIME WILEY (for Jacob Allen), Petitioner, v.

DIVISION OF CHILD AND FAMILY SERVICES, Respondent,

DECISION AND ORDER

Case No. 23-01

By this appeal, Jacob Allen (“Petitioner”), requests records allegedly held by the Division of Child and Family Services (“Respondent”).

FACTS

On July 29, 2022, by and through counsel, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) using the form the Respondent supplied in its notice. Petitioner sought “all reports, notes, findings, conclusions, summaries, and investigation-related records related to Jacob Allen [date of birth], [social security number], including but not limited to Case Number 2899047.”

On August 16, 2022, the Respondent sent notice to Petitioner’s counsel that it denied the request. The notice stated: “Pursuant to Utah Code Ann. §63G-2-305 The information requested is classified as protected: Case is still being screened for charges through the Utah County Attorney’s Office.” Through his counsel, Petitioner appealed to the Respondent’s chief administrative officer (“CAO”) on September 1, 2022, arguing the denial was in error because:

(1) An active police investigation is not a specified protection under the statute, and the subsections of the statute that do reference an investigation allow for redactions rather than an outright denial of the request;

(2) Utah Code §62A-4a-412(1) provides that while reports made by the Respondent are classified as private, protected, or controlled under the GRAMA, the reports may be made available to the subject of the report, as well as any person identified in the report as a perpetrator or possible perpetrator of abuse or neglect. Because Petitioner is both the subject of the report and, according to the notice sent by the Respondent, is identified as a perpetrator of abuse or neglect the records should be disclosed;

(3) Petitioner has a right under Utah Code § 63G-2-201(7) to records that are supporting a finding of abuse against him. He argues that he cannot readily determine if he should request a review of the agency action without being able to review the requested records and the Respondent’s findings; and

(4) Section 63G-2-202 provides “[e]xcept as provided in Subsection (11)(a), a governmental entity shall, upon request, disclose a private record to: the subject of the record,” which Petitioner is.

The CAO upheld the Respondent’s denial, stating that the Respondent received information that releasing the records could impede a criminal investigation, and that “[b]ased on the information that [the Respondent] originally received from law enforcement, that is the case with this matter. As a result, DCFS’ [sic] decision to redact or withhold the entire record is appropriate and is upheld.”

Petitioner now appeals to the State Records Committee (“Committee”), challenging the CAO’s decision. On January 19, 2023, 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. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

The GRAMA maintains that a person “has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours . . . .” Utah Code § 63G-2-201(1)(a). However, access to a requested record is governed by statute, and the GRAMA specifically provides that if a statute outside of its framework controls a particular record’s disclosure, then access to that record is governed by the provisions of that controlling statute. Utah Code § 63G-2-201(6)(a). However, notwithstanding the GRAMA giving deference to another statutory framework, if the GRAMA’s provisions do not conflict with other governing statutes, the GRAMA will still apply. Bryner v. Canyons School District, 2015 UT App 131.

In this review, the Respondent argues that multiple statutes justify withholding the records from Petitioner. Indeed, this Committee finds that the many statutes the Respondent raises all touch this subject matter in some form or another. However, despite this, we find that only Sections 63G-2-305(44), 80-2-1002(4), and 80-2-1005(3), persuade our reasoning.

First, Section 305(44) classifies as “protected” “information contained in the Licensing Information System described in Title 80, Chapter 2, Child Welfare Services.” Utah Code § 63G-2-305(44). The records Petitioner requests are currently housed and maintained in its Licensing Information System (“LIS”) developed by the Respondent in accordance with Utah Code § 80-2-1002(1). Notably, Section 305(44) does not expressly defer record governance to Section 80-2-1002; it merely states that records held on the LIS are classified as “protected.” Accordingly, we must determine whether Section 80-2-1002 speaks to the access of LIS records. If it doesn’t, we must revert back the GRAMA’s provisions to assess whether Petitioner may access the protected record.

Section 80-2-1002(4) reiterates the GRAMA in classifying information and records contained in the LIS as “protected” for purposes of records requests. But the statute also conflicts with the GRAMA in limiting who may access those protected records and information. Where the GRAMA lists certain individuals and entities under Section 202(4) that may access a “protected” record, Section 80-2-1002(4)(b) holds its own narrow list of individuals and entities. Because the list in Section 1002(4)(b) conflicts with the GRAMA’s list, we look to Section 1002(4)(b) for whether Petitioner may access the LIS records. See Bryner, 2015 UT App 131, ¶29.

Section 1002(4)(b) states that LIS records are accessible to only those listed within its subsections. In turn, Subsection (4)(b)(vi) includes “the department or another person, as provided in this chapter” as able to access those records. Utah Code § 80-2-1002(4)(b)(vi). Thus, we now must look to the records provision – Section 1005 – of the Chapter to determine who “another person” may be under Section 80-2.
The Respondent’s records and their access are governed by Section 80-2-1005 which states in pertinent part:

A report made under Part 6, Child Abuse and Neglect Reports, and any other information in the possession of the division obtained as a result of the report is a private, protected, or controlled record under [GRAMA], and may only be made available to: . . . (k) any individual identified in the report as a perpetrator or possible perpetrator of abuse or neglect, after being advised of the screening prohibition in Subsection (2). Utah Code § 80-2-1005(1)(k).

As the Respondent’s Notice of Agency Action indicated that it had supported findings of sexual abuse against him, Petitioner satisfies the identifying classification set forth in Subsection (1)(k). Additionally, Petitioner is the subject of the report he seeks, which satisfies the classification set forth in Subsection (1)(e). However, despite appearing to satisfy the statutory requirements to obtain access to LIS records, Section 1005 poses a more fundamental problem for Petitioner.

The Respondent argues that the statute’s use of the word “may” creates a permissive right for the Respondent in granting the requested report and associated records. That is, the Respondent reads the statute to mean that it “may” disclose the requested records to those listed within its subsections if, and only if, it chooses to. While we think it’s problematic that a governmental entity holds full discretion over whether it may disclose records to the list of individuals the statute prescribes, even when, say, the subject of a record or parent of a victim requests their own records, we cannot disagree. The plain language of the statute seems to grant the Respondent that very choice. As strange as it is that the subject of a record or parent of a victim has no statutory right to records concerning them and is at the mercy of the Respondent’s choice to release them, that is what the legislature enacted. Accordingly, because Petitioner’s rights to access the records that he is the subject of are subordinate to the Respondent’s statutory discretion to permit the records’ disclosure, we are left to conclude that only a court order can grant Petitioner the records he seeks. See Utah Code § 63G-2-202(4)(c)(i).

ORDER

THEREFORE, because the records are properly classified as “protected” and only a court can compel the Respondent to order their disclosure, Petitioner’s appeal 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 30 day of January 2023

BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee