Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2012-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ALMA T. WILSON, Petitioner, vs.

UTAH DEPARTMENT OF HUMAN SERVICES/OFFICE OF ADMINISTRATIVE HEARINGS, Respondent.

DECISION AND ORDER

Case No. 12-08

By this appeal, Petitioner, Alma Wilson, seeks to appeal the denial of his records request for records regarding the Office of Administrative Hearings.

FACTS

On or about February 15, 2012, Mr. Wilson made a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to the Utah Department of Human Services, Office of Administrative Hearings, (“OAH”). Mr. Wilson submitted this request in an attempt to clarify his two previous GRAMA requests. Mr. Wilson’s request was extensive, however the records sought concerned the degree to which OAH provides “impartial justice under the law” as it pertained to child welfare administrative hearings. On or about February 27, 2012, Elizabeth Knight, Director, Office of Administrative Hearings responded to Mr. Wilson by letter denying his GRAMA request. The reasons cited by Ms. Knight included OAH’s position that OAH did not keep records that would be responsive to Mr. Wilson’s request; and that “Final Orders” issued by the OAH were not public records pursuant to Utah Code §§ 63G-2-203(10) and 63G-2-301(2)(c).

Mr. Wilson appealed OAH’s denial to the Utah Department of Human Services Deputy Director, Mark Ward on March 10, 2012. Mark Ward responded on March 21, 2012, affirming OAH’s previous denial of Mr. Wilson’s GRAMA request.

Mr. Wilson now appeals this denial to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on April12, 2012, 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 § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. A person making a request for a record shall submit the request to the governmental entity that prepares, owns, or retains the record. See, Utah Code § 63G-2-204(2)(a).

3. A record contained in the Management Information System, created pursuant to Utah Code § 62A-4a-1003, that is found to be unsubstantiated, unsupported, or without merit, may not be disclosed to any person except the person who is alleged in the report to be a perpetrator of abuse, neglect, or dependency. See, Utah Code § 63G-2-202(10).

4. Final opinions, including concurring and dissenting opinions, and orders that are made by a governmental entity in an administrative, adjudicative, or judicial proceeding are public except that if the proceedings were properly closed to the public, the opinion and order may be withheld to the extent that they contain information that is private, controlled or protected. Utah Code § 63G-2-301(2)(c).

5. In response to a request, a governmental entity is not required to create, compile, format, manipulate, package, summarize, tailor or provide a record in a particular format. Utah Code § 63G-2-201(8)(a).

6. At the hearing, counsel for OAH argued that the governmental entity did not maintain records and/or information regarding much of what Mr. Wilson requested in any form and that OAH was not obligated to create or tailor a record to suit Mr. Wilson’s request. Counsel further argued that many of the records which could be responsive to Mr. Wilson’s broad request were actually prepared, owned, or retained by another governmental entity who was not a party to the current action and therefore, such records were not releasable by OAH to Mr. Wilson. Of the remaining records that could be responsive to Mr. Wilson’s GRAMA request, primarily adjudicative opinions and orders by OAH, administrative law judges the records were: (1) not public as release was controlled by another state statute, in this case Utah Code § 62A-4a-412 and 62A-4a-1003 et seq; and (2) access to these records is restricted pursuant to Utah Code § 63G-2-301(2)(c) and -202(10) because the hearings were “properly closed to the public and the opinions and orders contain information that is private, controlled or protected.”

7. Mr. Wilson argued that he was at a disadvantage in making his GRAMA request because he was unfamiliar with DHS and OAH terms and nomenclature. He argued that being able to see the data tables, as opposed to data table structure, was one example and that while he requested “data structure,” what he wanted was “field headers/names” and other data that would be public, pursuant to GRAMA. He further argued that the administrative law judges final orders could be provided to him after any private, controlled or protected information had been redacted from the records.

8. After hearing the arguments of the parties, and having reviewed their submissions, the Committee is convinced that all records requested by Mr. Wilson that were not prepared, owned, or retained by OAH, were not properly before the Committee because OAH was not the record holder, and the record holder had not been notified of the hearing and did not have an opportunity to be heard at the hearing.

9. The Committee is not convinced by OAH’s argument that OAH, administrative law judges final orders and rulings are subject to another state statute based upon the language specifically contained in Utah Code § 63G-2-301(2)(c). Also, the Committee is not convinced access to all OAH, orders and rulings is restricted pursuant to Utah Code § 63G-2-202(10) because the hearings were “properly closed to the public and the opinions and orders contain information that is private, controlled or protected,” and, therefore, not public. Instead, the Committee finds that pursuant to Utah Code § 63G-2-202(10), only the AOH final orders and rulings found to be unsubstantiated, unsupported, or without merit, may not be disclosed in their entirety, and that OAH final orders and rulings, which were substantiated, supported and/or found to have merit should be considered public records. However, to the extent the records contain any private, controlled or protected information, that information must be redacted prior to release of such records, pursuant to the requirements of Utah Code § 63G-2-202(10). Lastly, the Committee finds the data tables and their corresponding fields names are public and should be released to Mr. Wilson.

ORDER

THEREFORE, IT IS ORDERED, that the appeal of Petitioner is upheld in part as it pertains to the Office of Administrative Hearings final orders and rulings in child welfare cases which are substantiated, supported and/or found to have merit. The Office of Administrative Hearings is hereby ORDERED TO, redact any private, controlled or protected information from the above AOH, child welfare final orders and rulings and then release such records from the year 2000 to the present to Petitioner.

IT IS FURTHER ORDERED, that all data tables requested by petitioner be released.

IT IS FURTHER ORDERED THAT, the appeal of petitioner as to any records not prepared, owned, or retained by OAH is DENIED.

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 § 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 § 63G-2-403(14)(d), the government 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 records committee upon production of the records; or (2) a notice of intent to appeal. If the government 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.

Entered this 20th day of April, 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee