State Records Committee Appeal Decision 2017-41

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

UTAH DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.

DECISION AND ORDER

Case No. 17-41

By this appeal, Petitioner, Steven Onysko, seeks access to records held by Respondent, Utah Department of Human Resource Management.

FACTS

This matter came before the State Records Committee (“Committee”) on October 12, 2017.

A motion was made by a Committee member at that hearing to review the disputed records in camera. After a determination was made that the volume of records would make it difficult for the Committee to review the records during the hearing, the Committee voted unanimously to continue the hearing to a later date. On November 9, 2017, the Committee, after having reviewed the materials in camera, 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 § 63G-2-201(2). GRAMA excludes “a temporary draft or similar material prepared for the originator's personal use or prepared by the originator for the personal use of an individual for whom the originator is working” from being considered a “record” subject to disclosure under GRAMA. Utah Code § 63G-2-103(22)(b)(ii). Additionally, records that are private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records under GRAMA. Utah Code § 63G-2-201(3)(a).

2. Records created or maintained for civil or administrative enforcement purposes, or for discipline purposes, are protected records if properly classified by the governmental entity and release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement or discipline; (2) Reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; or (3) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. See, Utah Code §§ 63G-2-305(10)(a), -305(10)(b) and -305(10)(d)

3. After having considered the written and oral arguments by the parties, and having reviewed the subject records in camera, the Committee finds that the records were non-records pursuant to Utah Code §§ 63G-2-103(22)(b)(ii), or properly classified as protected records pursuant to Utah Code §§ 63G-2-305(10)(a), -305(10)(b) and/or -305(10)(d).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, 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 a parties’ 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 21st day of November 2017.

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee