State Records Committee Appeal Decision 2023-54

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COURTNEY JOHNS (ABC 4 News), Petitioner, vs

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

DECISION AND ORDER

Case No. 23-54

By this appeal Courtney Johns, a reporter for ABC 4 News (“Petitioner”), requests records allegedly held by, Department of Health & Human Services, Division of Child and Family Services (“Respondents”).

FACTS

On April 25, 2023, Petitioner filed a records request with the Respondents pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested “any audio, video, or images collected involving Michael Haight’s abuse allegations.” Respondents denied the request on May 9, 2023, stating that no video or images were collected so no record exists to provide. Respondents acknowledged that it had in its possession two audio recordings of one of the children’s interviews with the Division of Child and Family Services (“DCFS”), but they did not provide the recordings because they were protected under a statute that restricts their disclosure to the media.

Petitioner appealed the decision to Eric Stott, Respondents’ Chief Administrative Officer (“CAO”) on May 22, 2023. Mr. Stott upheld the denial. He determined that certain written records associated with audio recordings should be released, but not the audio recordings themselves. He found that the audio recordings were protected under Utah Code § 80-2-1005. He also determined that “if one child refuses to be interviewed or discuss important sensitive information with DCFS because such child learned that another child’s interview was made public or shared with the media, this would be a great failure and disservice. The risk of this occurring outweighs the public interest in accessing the record, especially when the substance of such interviews is already contained in the released activity records.”

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. 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

We must determine whether the requested audio recordings are properly classified under Utah Code § 80-2-1005 and, if so, whether that Code section permits the records’ disclosure under GRAMA.

STATEMENT OF REASONS FOR DECISION

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).

Section 80-2-1005 addresses the classification of child abuse and neglect reports. Subsection (1) classifies such reports, “and any other accompanying information obtained as a result of the report[s],” as private, protected, or controlled under GRAMA. Utah Code § 80-2-1005(1). However, departing from GRAMA’s provisions dealing with these protective classifications, Subsection (1) expressly states that the reports and information may be disclosed, but only to an enumerated list of fifteen specific individuals and entities. Utah Code § 80-2-1005(1)(a)-(o).

After the parties presented their arguments to the Committee, we find that the recorded interviews constitute “other information” that DCFS obtained as a result of the child abuse report. Therefore, the recordings are governed by Subsection 80-2-1005(1). Since the recordings are governed by that subsection, they are appropriately classified and can be disclosed to only the 15 individuals and entities named in that Section. The media is not among them.

Petitioner asks us to exercise our weighing authority under Section 63G-2-403(11)(b) to examine the various interests and public policies favoring disclosure and determine that the public interest in the records outweighs their restriction. This we cannot do.

Subsection 403(11)(b) indeed grants the Committee the authority to weigh the interests and order a record’s disclosure when the record is classified as private, controlled, or protected. However, GRAMA also states that “disclosure of a record to which access is governed or limited pursuant to . . . another state statute, . . . is governed by the specific provisions of that statute. . . .” Utah Code § 63G-2-107(1)(a). Therefore, while our weighing authority may customarily apply, it cannot apply if another statute governs the disclosure of the record and provides for how and to whom that record may be released. Because Subsection 80-2-1005(1) allows for release to only a limited and specific list of individuals, we cannot weigh the interests and order disclosure to an individual not named in that list. Accordingly, we find that the recordings were properly restricted.

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