Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2011-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LINDA HOUSKEEPER, Petitioner, vs.

UTAH COUNTY ATTORNEY’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 11-01

By this appeal, Petitioner, Linda Houskeeper, seeks records from Respondent, the Utah County Attorney’s Office (“Respondent”).

FACTS

On May 8, 2009, [redacted], filed a petition requesting expungement of his court records. After holding two hearings, Judge Mary T. Noonan ordered [redacted]'s records to be expunged pursuant to the Utah Expungement Act.

On June 21, 2010, Ms. Houskeeper, made a request pursuant to the Government Records Access and Management Act (“GRAMA”) for “[a]ll records, documents, physical evidence, video recordings, notes, legal brief, etc. on the case of #991405159, State of Utah vs. [redacted] – both juvenile and adult.” Respondent denied Ms. Houskeeper’s request and on August 24, 2010, the Utah County Commission affirmed the denial.

Ms. Houskeeper appealed to the Utah State Records Committee (“Committee”). A hearing was held on November 18, 2010. At the hearing, it was determined that further briefing was necessary concerning the expungement order. Accordingly, without objection and with the consent of the parties, the Committee issued an order on November 29, 2010 for the parties to submit briefing regarding the relevance of the [redacted] expungement order to Ms. Houskeeper’s appeal. After having reviewed the evidence and arguments submitted by the parties, and having heard oral argument and testimony on January 13, 2011, the Committee now issues the following Decision and Order:

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“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 record is public unless otherwise expressly provided by statute. Utah Code Ann. § 63G-2-201(2).

3. The 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 Ann. § 63G-2-201(6)(a). GRAMA applies to records governed or limited pursuant to another state statute insofar GRAMA “is not inconsistent with the statute, rule, or regulation.” Utah Code Ann. § 63G-2-201(6)(b).

4. According to the Utah Expungement Act, a government agency or official may not divulge identifying information regarding the petitioner for an expungement, contained in a record of arrest, investigation, detention, or conviction after receiving an expungement order “[u]nless ordered by a court to do so.” Utah Code Ann. § 77-40-108(5).

5. Sufficient credible evidence was presented that Respondent received a copy of the [redacted] expungement order. Therefore, Respondent is under an obligation to not divulge identifying information about [redacted] regarding his arrest, investigation, detention, or conviction unless “ordered by a court to do so,” pursuant to Utah Code Ann. § 77-40-108(5). Accordingly, pursuant to Utah Code Ann. § 63G-2-201(6) and the Utah Expungement Act, the Committee does not have the authority to order the release of Respondent’s records regarding [redacted].

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner Linda Houskeeper is denied pursuant to Utah Code Ann. § 63G-2-201(6)(a), because disclosure of these records is governed by the Utah Expungement Act.

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 20th day of January 2011.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee