State Records Committee Appeal Decision 2023-42

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

UTAH DEPARTMENT OF FINANCIAL INSTITUTION, Respondent.

DECISION AND ORDER

Case No. 23-42

By this appeal Brady Eames, (“Petitioner”), requests records allegedly held by, Department of Financial Institution (“DFI”) (“Respondent”).

FACTS

On March 15, 2023, Petitioner filed an expedited records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). The Petitioner requested “Public Funds Monthly Reports” submitted to the Respondent by Zions Bank, Wells Fargo Bank, and Cache Valley Bank with respect to the public funds deposited by the following:

• State Treasurer;
• Logan City Municipal Corporation;
• Cache County Corporation;
• Utah Local Governments’ Trust Corporation;
• Utah League of Cities and Towns;
• Utah Associated Municipal Power Systems; and
• Utah State University

Paul Allred, Deputy Commissioner of Financial Institutions, denied the expedited request on March 22, 2023, saying that “Public Funds Monthly Reports in the Utah Department of Financial Institution’s possession contain confidential supervisory information. Therefore, the reports are confidential under Utah Code Ann. §7-1-802 and are not available for public inspection.” Mr. Eames filed an appeal to the Chief Administrative Officer (CAO), Darryle Rude, who upheld the denial for the same reasons.

Mr. Eames filed an appeal with the State Records Committee (“Committee”). On August 28, 2028, 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.

ISSUES FOR REVIEW

We must determine whether the Public Funds Monthly Reports are public records that must be disclosed under the GRAMA.

STATEMENT OF REASONS FOR DECISION

Under the GRAMA, “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, the following records are not public: “a record to which access is restricted pursuant to . . . another statute. . . .” Utah Code § 63G-2-201(3)(b). In the event access to a particular record is governed or limited by another statute, disclosure “is governed by the specific provisions of that statute. . . .” Utah Code § 63G-2-107(1)(a).

The Respondent was created under Utah Code § 7-1-201 and is governed primarily by Title 7 of the Utah Code. When it comes to the Respondent’s records, Section 7-1-802 provides:
(2) as provided in this section, the following are confidential, not public records, and not open to public inspection:
(a) all reports received or prepared by the department;
(b) all information obtained from an institution or person under the jurisdiction of the department; and
(c) all orders and related records of the department.

Utah Code § 7-1-802(2)(a)-(c) (emphasis added).

Thus, according to the statute, reports prepared by financial institutions and delivered to the Respondent are confidential under the statute. Due to their confidential nature, the reports are not available to the public under the GRAMA and are available only to the Respondent and the Utah Treasurer’s Office under the Utah Money Management Act.

Although Title 7 governs these records, the Courts have held that the GRAMA may still apply when another statute controls the records. See Southern Wilderness Alliance v. Automated Geographic Reference Center, 2008 UT 88, ¶17 (“while the other statute’s provisions will control in the event of an irreconcilable conflict, GRAMA’s provisions will still apply so long as they are not inconsistent with the other statute.”); see also Bryner v. Canyons School Dist.2015 UT App 131, ¶29 (holding that GRAMA permitted redactions of record governed by Family Educational Rights and Privacy Act because there was no irreconcilable conflict between the statutes). Thus, to determine whether Title 7 is an absolute bar to the records’ disclosure under the GRAMA, we must look to see whether the Financial Institutions Act conflicts with the GRAMA. Where it does conflict, the Financial Institutions Act will control.

In comparing the statutes, we find that the GRAMA’s Subsection 107(1)(a) clearly requires us to defer to the statute that governs these records; in this case, Section 7-1-802. In examining that Section, we find the legislature chose to classify the records at issue here is “confidential.” This is an irregular deviation from the GRAMA’s standard classifications of “public,” “private,” “controlled,” and “protected.” Where the GRAMA has certain provisions that allow for private, controlled, and protected records to be disclosed, it makes no such allowance for confidential records. See Utah Code §§ 63G-2-202(1)(a); -202(2)(a); -202(4); -403(11)(b). The accepted definition for “confidential” is “meant to be kept secret; imparted in in confidence.” BLACK’S LAW DICTIONARY (11th ed. 2019). Due to the legislature’s deliberate use of the word “confidential” in Subsection 7-1-802(2)—a significant distinction from the GRAMA’s record classifications—we find that Subsection 7-1-802’s classification does conflict with the GRAMA in irreconcilable fashion. Consequently, the Financial Institutions Act controls these records, and we cannot order any action regarding them. They must remain confidential from the public.

Our conclusion is bolstered by the fact that the reports at issue are subject to the Utah Money Management Act when they are delivered to the State Money Management Council, which works in conjunction with the State Treasurer. Under that Act, Subsection 51-7-18.1(4)(b) states “If the secretary of the council or any member of the council discloses confidential information obtained from the commissioner under this Subsection, he is guilty of a class A misdemeanor.” Utah Code § 51-7-18.1(4)(b). Given the criminal penalty for disclosing the reports, we see no leeway under the statute to provide disclosure in whole or in part.

ORDER

THEREFORE, IT IS ORDERED THAT 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 6 day of September 2023.

BY THE STATE RECORDS COMMITTEE

______________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee