Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Findings of Fact

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARK D. BERGMAN, Appellant, vs.
LABOR COMMISSION, Appellee.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The sole issue in this appeal is a request by Mr. Bergman to review the classification and release of five (5) documents by the Labor Commission which Mr. Bergman alleges contained his private information.

The State Records Committee, having reviewed the materials submitted by the parties, and having heard the oral argument and testimony of the parties on July 12, 2000, now issues the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The Government Records Access and Management Act ("GRAMA") specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2) (2000).

2. GRAMA also provides that records that are properly classified as "protected" are not public. Utah Code Ann. 63-2-201(3) (2000).

3. The State Records Committee enters these Findings of Fact and Conclusions of Law based on the authority granted to it under Utah Code Ann. 63-2-502(1)(c) (2000), which states that "the Records Committee shall . . . hear appeals from determinations of access as provided by Section 63-2-403 . . . ."

4. The first document Mr. Bergman contends was improperly released by the Labor Commission is entitled Notice of Alleged Safety/Health Hazards, dated March 13, 2000. Mr. Bergman contends the Labor Commission should not have disclosed this document to third parties because of the answer he gave to question 10 wherein he indicated he did not wish to have his name revealed to Cape Construction. The Committee reviewed this document and determined it should not have been released because access to it was "restricted pursuant to Court rule, another state statute, federal statute, or federal regulation . . . ." Utah Code Ann. 63-2-201(3)(a) (2000).

Of particular concern to the Committee was the fact that Mr. Bergman clearly expressed his intent that the information on that form should not be released, but the Labor Commission did so anyway, without notifying him of the inquiry or their response. While this notice procedure is not required by the statute, the Committee strongly recommends that agencies provide such notice where the complainant expresses his intent to prevent further disclosure as clearly as Mr. Bergman did in the case at hand.

5. Documents 2 - 5 are identified as follows: A letter from Charles G. Osman to Mark Bergman dated March 8, 2000, a fax cover sheet dated January 20, 2000, a fax cover sheet dated February 6, 2000, and the first page of a letter dated March 7, 2000 to Mark Bergman from the Labor Commission. Mr. Bergman contends these records should have been classified as protected pursuant to Utah Code Ann. 63-2-304(9)(c) in that said records were "maintained for . . . administrative enforcement purposes or audit purposes, or a discipline, a licensing, certification or registration purposes" and that the release of the records would "create a danger of depriving [him] of a right to a fair trial or impartial hearing . . . ." The Committee finds this Section inapplicable to these documents insofar as said documents do not create a danger of depriving him of a right to a fair trial or impartial hearing. Furthermore, these documents were not classified as protected by the Labor Commission.

RIGHT TO APPEAL

Either party may appeal these Findings of Fact and Conclusions of Law to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 and 63-2-502(7) (2000). The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

Entered this 14th day of July, 2000.

BY THE STATE RECORDS COMMITTEE

Betsy L. Ross, Chairperson
State Records Committee