Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 94-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SALT LAKE CITY CORPORATION vs.

UTAH DEPARTMENT OF EMPLOYMENT SECURITY

DECISION AND ORDER CASE NO. 94-03

By this appeal, Appellant, Salt Lake City Corporation, seeks an order compelling the Utah Department of Employment Security to release to it records showing the number of employees for each business of which it has record within Salt Lake City.

Appellant appeared through counsel, Assistant City Attorney, Larry V. Spendlove, Esq., at the hearing of the Committee held March 2, 1994.

Appellee appeared at the hearing through counsel, Lorin Blauer, Esq.

The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the testimony and argument, now issues the following decision and order.

STATEMENT OF REASONS FOR DECISION

Appellant, Salt Lake City, urges that the records it requests must be released to it on the grounds that all "records are public unless otherwise expressly provided by Statute" (Utah Code Ann. 63-2-201 Supp. 1993)), and that there is no statute that otherwise expressly provides. Appellant also cites Utah Code Ann. 63-2-102(3)(e) (Supp. 1993) "favoring public access when, in the application of this act, countervailing interests are of equal weight."

Appellee cites Utah Code Ann. 63-2-201 (3)(b) (Supp. 1993), providing that "records to which access is restricted pursuant to ... another state statute" are "not public" and hence are exempt from the Government Records Access and Management Act. Appellee also cites Utah Code Ann. 35-4-11 (7)(c) (Supp. 1993), part of the Utah Employment Security Act, as "another state statute" that restricts access to the requested records. The latter statute provides as follows:

(c) Information thus obtained [from an employing unit] or obtained from any individuals may not be published or open to public inspection, other than to public employees in the performance of their public duties, in any manner revealing the employing unit's or individual's identity, but any party to a hearing before an administrative law judge or the commission shall be supplied with information from these records to the extent necessary for the proper presentation of his case. The commission shall, upon request in writing from any employer, furnish in writing any information requested concerning claims for benefits with respect to his former employees.

Section 35-4-ll (7)(c) does restrict access to department records, but with an exception the Committee takes as controlling here -- the information may not be released "other than to public employees in the performance of their public duties." It appears that by negative implication under this section of the Utah Employment Security Act, certain information may be released to public employees in the performance of their public duties. Appellant has satisfied the Committee that the use to which appellant will put the product of its narrow and specific request is within the "public duties" the performance of which warrants "publish[ing]" the requested records to appellant, under the section.

ORDER

WHEREFORE, IT IS ORDERED that appellant's appeal is granted and appellee is to furnish to appellant the number of employees of each business in Salt Lake City, insofar as that information is in Appellees records, for use as indicated by appellant in its presentation to the Committee, and to be maintained confidential for such purposes.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 & 502(7) (1992). 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.

Entered this 7th day of March, 1994.

MAX J. EVANS,
Chair, State Records Committee