State Records Committee Appeal Decision 2016-50

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ERIC PETERSON, Petitioner, v.

UTAH DEPARTMENT OF HEALTH. Respondent.

DECISION AND ORDER

Case No. 16-50

By this appeal, Petitioner, Eric Peterson, seeks access to records held by Respondent, the Utah Department of Health.

FACTS

On July 27, 2016, Mr. Peterson filed a records request pursuant to the Government Records Access and Management Act (“GRAMA”) to the Utah Department of Health (“Department”). Mr. Peterson requested all records that “may contain information relating to deaths caused in whole or in part by prescription overdoses of any kind…” Mr. Peterson stated that he was seeking the information for research purposes as allowed by Utah Code § 63G-2-202(8)(a). The Department denied Mr. Peterson’s request citing the Utah Code § 26-4-1 et seq., Utah Medical Examiner Act (“Act”), stating that the Act only allowed release of these records to attending physicians, law enforcement, and next of kin.

Mr. Peterson filed an appeal with Dr. Joseph Miner, Executive Director of the Department, arguing that the Act does not specifically address his type of records request, and that GRAMA should allow investigations that would not invade the privacy of individuals. In a letter dated September 23, 2016, Dr. Miner denied Mr. Peterson’s appeal finding that pursuant to Utah Code § 26-1-17.5 the Department has no authority to release information deemed confidential except as set forth in the Act.

On October 11, 2016, Mr. Peterson filed an appeal with the State Records Committee (“Committee”). On December 8, 2016, a hearing was before the Committee where the parties were allowed to present their legal arguments. After considering all written materials and the arguments by the parties, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Every 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 subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2).

2. A record to which access is restricted pursuant to another state statute is not a public record. Utah Code § 63G-2-201(3)(b). 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 § 63G-2-201(6)(a). GRAMA applies to records governed or limited by another state statute insofar GRAMA “is not inconsistent with the statute…” Utah Code § 63G-2-201(6)(b).

3. Under the Utah Medical Examiner Act within the Utah Health Code, Title 26, the medical examiner shall promptly deliver copies of all reports, findings, and records gathered or compiled in the investigation of a death “to the decedent’s next-of-kin, legal representative, or physicians who attended the decedent during the year before death, upon their written request for the release of documents.” Utah Code § 26-4-17(3). The medical examiner “shall maintain the confidentiality of the records which shall be released” pursuant to Utah Code § 26-4-17(3). Utah Code § 26-4-17(4). A record classified as “confidential” under the Utah Health Code “shall remain confidential, and be released according to the provisions of this title” notwithstanding Utah Code § 63G-2-310. Utah Code § 26-1-17.5(1).

4. After having reviewed the arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that pursuant to Utah Code § 26-4-17, the Department is required to maintain the confidentiality of the requested documents. Since access is limited by the Act, the documents are considered non-public records pursuant to Utah Code §§ 63G-2-201(3)(b) and -201(6).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is 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 its 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities. Utah Code § 63G-2-403(15)(d)(i). 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 19th day of December 2016.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee