Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2010-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SHAWN & BARBARA LEWIS, Petitioners, vs.

UTAH DEPARTMENT OF HUMAN SERVICES, Respondent.

DECISION AND ORDER

Case No. 10-16

By this appeal, Petitioners, Shawn and Barbara Lewis, seek copies of investigative records allegedly held by Respondent, the Utah Department of Human Services (“DHS”).

FACTS

In early March 2010, pursuant to the Government Records Access and Management Act (“GRAMA”), Petitioners requested from DHS all documentation pertaining to Mr. Lewis’ daughter and Ms. Lewis’ granddaughter, including her DCFS, adoption, medical, and juvenile court records. On March 15, 2010, Sue Taylor, a Salt Lake Valley Region GRAMA specialist, denied both requests on the grounds that neither party had legal authority from which to request the records. Ms. Lewis is not the biological parent of the child and Mr. Lewis’ parental rights had been terminated by the State of Utah on March 6, 2002, pursuant to a court order. In a letter dated May 26, 2010, Steven Chen, Chief Administrative Officer for DHS, upheld the denial of the records, pursuant to Utah Code Ann. § 78-3A-413 and § 63G-2-202. Petitioners appealed this decision in May 2010, claiming that Mr. Lewis had never been notified of the termination of his parental rights and again expressing their desire to know the whereabouts of the child.

Petitioners now appeal to the Utah State Records Committee (“Committee”). Ms. Lewis participated in the hearing via telephone on behalf of herself and Mr. Lewis. The Committee having reviewed the evidence and arguments submitted by the parties, and having heard oral argument and testimony on August 12, 2010, now issues the following Decision and Order:

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63G-2-302, -303, -304 and –305.

2. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with reasonable specificity. Utah Code Ann. § 63G-2-204(1)(b). As soon as reasonably possible, the governmental entity shall respond to the request by: (1) Approving the request and providing the record; (2) Denying the request; (3) Notifying the requester that it does not maintain the record and provide if known, the name and address of the governmental entity that does maintain the record; or (4) Notifying the requester that because of extraordinary circumstances, it cannot immediately approve or deny the request. Utah Code Ann. § 63G-2-204(3)(a).

3. Under GRAMA, a governmental entity may only disclose a private record to “the subject of the record, the parent or legal guardian of an unemancipated minor who is the subject of the record,” or someone who has power of attorney or submits a notarized release from the subject of the record. Utah Code Ann. § 63G-2-202(1)(a-d). Given their sensitive information regarding the whereabouts of a minor, DHS has designated the records concerning the child as private.

4. Concerning Mr. Lewis’ request, DHS asserted that his parental rights had been terminated by the State of Utah on March 6, 2002 pursuant to a court order. Once a termination order has been issued, the child and parents are divested “of all legal rights, powers, immunities, duties, and obligations with respect to each other…” Utah Code Ann. § 78A-6-513. Accordingly, DHS could not recognize Mr. Lewis as the parent of the unemancipated minor who is the subject of the record.

5. Ms. Lewis alleged that Mr. Lewis had been unaware of the 2002 proceeding and that he did not receive notice of the termination order. DHS argued that the record hearing was not the proper venue to challenge a custody determination and could not make an assessment concerning whether Mr. Lewis received due process when his parental rights were terminated.

6. In response to Ms. Lewis’ request to receive records concerning her granddaughter, DHS argued that there was a lack of legal authority from which to request the documents. Pursuant to Utah Code Ann. § 62A-4a-412(e), private, protected, or controlled Human Services records can be made available to the “subject of the report, the natural parents of the child, and the guardian ad litem” – none of which apply to Ms. Lewis in the present case. A biological grandparent has no per se rights to documentation regarding her grandchild, absent a GRAMA-compliant request.

7. Upon questioning from the Committee, DHS agreed to provide Mr. and Ms. Lewis with the name of the court and the case number in which Mr. Lewis’ parental rights were terminated if Mr. Lewis properly submitted a GRAMA request to receive this information.

8. After reviewing Mr. and Ms. Lewis’ written GRAMA requests, hearing the arguments and testimony of the parties, and reviewing the evidence presented, the Committee finds that DHS had no choice but to deny Mr. and Ms. Lewis’ March 2010 GRAMA requests. The Committee believes that neither Mr. Lewis nor Ms. Lewis have legal authority under which records regarding the child could be made available to either of them. Accordingly, the Committee cannot order DHS to produce documents contrary to the law. See, Utah Code Ann. § 63G-2-202(1)(a-d); § 62A-4a-412(e).

ORDER

THEREFORE, IT IS ORDERED THAT: the appeals of Petitioners, Shawn Lewis and Barbara Lewis, are denied because: (1) Mr. Lewis’ parental rights have been terminated, effectively ending any legal right he may have had to request the records, (2) the Utah Department of Human Services cannot release the requested documents to those not legally authorized to receive them, and (3) Ms. Lewis, as the subject’s biological grandparent, has no right under GRAMA to receive the records in question.

RIGHT TO APPEAL

Either party may appeal this Decision and Order 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 Utah Code Ann. § 63G-2-404. 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.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the governmental entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental entity 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.

Dated this 19th day of August 2010.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee