State Records Committee Appeal Decision 2023-58

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL ROWLEY, Petitioner, v.

UTAH DEPARTMENT OF WORKFORCE SERVICES (DWS), Respondent.

DECISION AND ORDER

Case No. 23-58

By this appeal Michael Rowley (“Petitioner”), requests records allegedly held by, Utah Department of Workforce Services (“Respondent”).

FACTS

In November, 2021, Petitioner was involved in a car accident that resulted in a significant loss of his physical abilities. His impairments affected his ability to work, and, ultimately, his employment was terminated. For this, Petitioner filed for unemployment benefits with Respondent toward the end of May, 2022. He was eventually awarded the unemployment benefits he sought.

On August 6, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested a copy of the employer’s response, statement, and/or transcript to the filing of the unemployment and the employer’s stated reason as to why he was no longer employed by them. Petitioner requested the records to settle a claim with the car insurance company to ensure he is fairly compensated in connection with his car accident.

The Respondent denied Petitioner’s request on August 9, 2023, saying that the records requested by him are classified as private records according to Utah Code § 35A-4-312, which, the Respondent alleged, prohibits the release of the records. Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”) who upheld the denial.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On November 16, 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

In light of Section 35A-4-312, we must determine whether the requested records are subject to GRAMA and may be disclosed.

STATEMENT OF REASONS FOR DECISION

GRAMA 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, if access to a record is restricted pursuant to another state statute, the record is not considered a public record. Utah Code § 63G-2-201(3)(b). In the event that another statute does restrict access to a requested record, disclosure is governed by the specific provisions of that statute. Utah Code § 63G-2-107(1)(a).

In this case, the Respondent points us to Section 35A-4-312 which governs all records it retains. This section of law is quite broad in its protections over information the Respondent obtains. For example, Subsection 312(4) states that “information obtained by the division under this section may not be used in court or admitted into evidence in an action or proceeding” except in legal proceedings expressly established by the Employment Security Act, particularly written agreements with the Labor Commission, a court order pursuant to certain GRAMA sections, and a written agreement with the Office of State Debt Collection. Utah Code § 35A-4-312(4)(a)(i)-(iv). While the requested records are not being used in the proceeding before us, this section illustrates the vast protection the statute extends over the records.

Subsection 312(5) governs the actual disclosure of information the Respondent has in its possession. That provision states that “information obtained by the division may be disclosed to:” and then proceeds to itemize fifteen individuals to whom records may be disclosed. Notably, we see that the subject of the records is not among the listed. Compare Section 63G-2-202(1)(a) (“a governmental entity shall, upon request, disclose a private record to the subject of the record”).

From our review of the statute, we find only one possible provision that could permit the Respondent to release the records. Subsection 312(5) allows the Respondent’s information to be disclosed to “the public for any purpose following a written waiver by all interested parties of their rights to nondisclosure.” Utah Code § 35A-4-312(5)(k). However, when the Committee questioned the Respondent on this possibility, the Respondent testified that it had sought the employer’s consent to release the requested records since disclosure affects the employer’s interests, but the employer declined to consent.

In sum, the Committee recognizes the frustration Petitioner is experiencing in trying to obtain the records for purposes of his vehicle accident claim. To us, it seems that there may be a good policy reason to allow him the records he seeks for his stated purpose. However, “that is no reason for us to step in and do the legislature’s job of amending or updating its laws.” Matter of Childers-Gray, 2021 UT 13, ¶309 (Lee, J. dissenting). This committee is bound to follow the express provisions of the statute, and where GRAMA specifically defers to other governing statutes, and where the governing statute in this case holds no provision that would permit the records’ release, we must affirm the Respondent’s denial.

ORDER

THEREFORE, in accordance with our Decision above, 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 28 day of November 2023

BY THE STATE RECORDS COMMITTEE

Kenneth R. Williams
Chair, State Records Committee