State Records Committee Appeal Decision 2023-53

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COURTNEY TANNER (Salt Lake Tribune), Petitioner, vs

DEPARTMENT OF HEALTH & HUMAN SERVICES, DIVISION OF CHILD AND FAMILY SERVICES, Respondents,

DECISION AND ORDER

Case No. 23-53

By this appeal Courtney Tanner, a reporter for the Salt Lake Tribune (“Petitioner”), requests records allegedly held by, Department of Health & Human Services, Division of Child and Family Services (“Respondents”).

FACTS

On April 20, 2023, Petitioner filed a records request with the Respondents pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested “the external review or fatality review and related docs, responses conducted on how Utah DCFS[1] handled the Haight family case in Enoch.” Petitioner also requested “any internal reviews” from Respondents on the same case. On April 21, 2023, Respondents denied the requests stating “no records that match this description were found within the Division of Child and Family Services. Pursuant to Utah Code Ann § 63G-2-201(8)(a&b) if a record does not exist with the information requested, the agency is not required to create or compile a record.” They added “pursuant to Utah Code Ann § 63G-2-302, information classified as private has been withheld.”

Petitioner appealed the decision to Respondents’ Chief Administrative Officer (“CAO”) Eric Stott on May 19, 2023. Respondents’ CAO, upheld the denial of the records request on the basis that the records are protected under a statute outside of GRAMA—Utah Code § 80-2-1005—and therefore, cannot be disclosed. The CAO did inform Petitioner that although there was an internal meeting to discuss the case, no records were produced from that meeting. Therefore, with respect to any records relating to an internal review, the appeal was denied.
Regarding records relevant to an external review, the CAO upheld the denial on the grounds that such records aren’t public—that an external fatality review is protected under Utah Code §§ 63G-2-305(10), 63G-2-201(3)(b), and 26B-1-506(5). The CAO went on to explain that DCFS’s case files had already been released to the public along with associated law enforcement records. As a result, Petitioner already has public access to records showing DCFS’s actions in connection with the Haight family. The CAO concluded the denial by finding that the public interest in the case does not outweigh the interest favoring restriction.

Petitioner ultimately conceded that there are no records in connection with an internal review. However, she has appealed to the State Records Committee (“Committee”), challenging the CAO’s decision with respect to records connected to an external review. In response, Respondents submitted a motion to dismiss the appeal. On October 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.

ISSUES FOR REVIEW

First, we must determine whether this appeal should be dismissed pursuant to Respondents’ motion. If we decide to proceed in hearing the appeal, then we must determine whether the requested records are governed by a statute outside of GRAMA that restricts their disclosure, or if the records fall under the purview of GRAMA and may be disclosed.

STATEMENT OF REASONS FOR DECISION

I. The Motion to Dismiss

Respondents filed a motion to dismiss arguing that Utah Code § 26B-1-501 et seq. bars them from disclosing the requested records. We note that GRAMA expressly disavows the Administrative Procedures Act. Utah Code § 63G-2-104. Additionally, the legislature intentionally kept the Utah Rules of Civil Procedure out of reach in appeals before this Committee. Compare Utah Code §§ 63G-2-403 and 404 (Section 404 expressly allows for the Rules of Civil Procedure whereas Section 403 does not). Therefore, we see that motions to dismiss are not contemplated by GRAMA. In fact, the only mechanism in which an appeal may be summarily denied is found in Subsection 403(4)(b) which allows the executive secretary to decline to schedule a hearing if “the record series that is the subject of the appeal has been found by the committee in a previous hearing involving the same governmental entity to be appropriately classified as private, controlled, or protected.” Utah Code § 63G-2-403(4)(b). Accordingly, with respect to Respondents’ motion to dismiss, we find that we cannot entertain such a motion. We must hear the appeal from the CAO’s determination of access. Utah Code § 63G-2-502(1)(a).

II. The Records are Properly Classified and Cannot be Disclosed

Utah law provides 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, a record to which access is restricted pursuant to another state statute is not a public record. Utah Code § 63G-2-201(3)(b). If the other statute allows for disclosure of the record, then access is governed by the specific provisions of that statute. Utah Code § 63G-2-107(1)(a).

In the hearing, it became evident that Petitioner’s GRAMA request is clouded with inadvertent confusion—confusion from the Respondents in what precisely is being requested, confusion from Petitioner in not knowing how Respondents labels their reports and therefore how to word her request to obtain the records she has in mind, and confusion by this Committee in trying to reconcile the request and the Respondents’ response. We sympathize with Petitioner’s plight in not knowing the specific titles of the records she seeks. We also believe that using generalized terms such as “external review” to seek some sort of audit report is understandable. On the other hand, we acknowledge the Respondents’ efforts to interpret a GRAMA request containing a lack of specificity. The Respondents informed the Committee that it interpreted “external review” to be a fatality review since fatality reviews are conducted by the Office of Services Review, a subdivision of the Respondents, but an external office distinct from DCFS—the recipient of the GRAMA request. Due to the Respondents’ organizational structure, its interpretation of the GRAMA request is reasonable. Therefore, we approach the GRAMA request with the same reading.

Fatality review reports are governed by Utah Code § 26B-1-501 et seq. Subsection 506(6)(a) outlines a list of records that are considered a “fatality review document” for purposes of the statute—among them a fatality report created pursuant to Section 506. From there, Subsection 506(6)(b) then declares that “[a] fatality review document is not subject to discovery, subpoena, or similar compulsory process in any civil, judicial, or administrative proceeding. . . .” Utah Code § 26B-1-506(6)(b). From this, the language is clear that any fatality review document itemized by the statute, including a fatality report, is confidential under the law and its disclosure cannot be compelled in this administrative proceeding.

With that said, we again acknowledge that Petitioner may have meant something else by “external review.” Thus, Petitioner may submit a new GRAMA request more specifically oriented toward what she has in mind after learning at the hearing how the request was interpreted.

ORDER

In accordance with this decision, 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 October 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee

1. Division of Child and Family Services