Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2011-04

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CHADWICK M. SMITH, Petitioner, vs.

UTAH STATE TAX COMMISSION, Respondent.

DECISION AND ORDER

Case No. 11-04

By this appeal, Petitioner, Chadwick M. Smith, seeks access to investigation files held by Respondent, the Utah State Tax Commission.

FACTS

On or about December 21, 2010, the Utah State Tax Commission (“Commission”), received a document titled "Subpoena Duces Tecum” requesting production of “all investigation files” opened from January 1, 2005 to the present regarding Bentley Holdings, RMK Auto LLC, and certain named individuals. In a letter dated December 28, 2010, the disclosure officer for the Commission denied the request stating that the “information that you are requesting is classified as ‘protected’” pursuant to the Government Records Access and Management Act (“GRAMA”). The letter further stated that if the requestor did not agree with the decision, it should be appealed within 30 days to the Executive Director of the Commission as outlined in Utah Code Ann. § 63G-2-401.

An appeal was filed with the Commission, and in a letter dated January 11, 2011, Barry C. Conover, Interim Executive Director for the Commission denied the appeal. Mr. Smith has now filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the materials submitted by the parties and having heard oral argument and testimony on April 14, 2011, 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 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. Records created or maintained for civil, criminal, or administrative purposes, or for discipline purposes, are protected if properly classified by a governmental entity if release of the records: “(a) reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; [or] (c) would create a danger of depriving a person of a right to a fair trial or impartial hearing…” Utah Code Ann. § 63G-2-305(9).

3. The Commission’s first argument was that the records are protected pursuant to 305(9); they presented evidence that the disputed records were maintained for enforcement purposes. The Commission did not establish that release of the records reasonably could be expected to interfere with any current investigations (3050(9)(a), reasonably could interfere with any enforcement proceedings(305)(9)(b), or would create a danger of depriving a person of a right to a fair trial or impartial hearing(305)(9)(c). After hearing the parties’ arguments and considering the evidence presented on this issue, the Committee finds that the records were improperly classified by the Commission as protected because the Commission failed to provide sufficient evidence to show the needed interference or deprivation required by the statute to allow the records to be protected pursuant to Utah Code Ann. § 63G-2-305(9)(a-c).

4. The Commission’s second argument was that portions of the disputed records contain information that is either private or protected, including vehicle identification numbers, social security numbers, and other personal information of witnesses.

5. If a governmental entity receives a request for access to a record that contains information the requester is entitled to inspect and information that the requester is not entitled to inspect under GRAMA, the governmental entity may deny access to the information in the record exempt from disclosure to the requester. Utah Code Ann. § 63G-2-308.

6. A governmental entity may classify a record as “private” if the record contains data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy. Utah Code Ann. § 63G-2-302(2)(d).

7. A record to which access is restricted pursuant to another state statute, federal statute, or federal regulation, is also not a public record pursuant to Utah Code Ann. § 63G-2-201(3).

A. Disclosure of personal identifying information by the Drivers License Division of the Utah Department of Public Safety is governed by Utah Code Ann. § 53-3-109 and the Federal Driver’s Privacy Protection Act of 1994. 18 U.S.C. Chapter 123. All motor vehicle title and registration records of the Motor Vehicle Division of the Commission are protected unless the Motor Vehicle Division determines based upon a written request by the subject of the record, that the record is public. Utah Code Ann. § 41-1a-116(1)(a).

B.A state department of motor vehicles shall not knowingly disclose or otherwise make available to any person or entity personal information, which means “information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status.” See, 18 U.S.C. 2721(a) and 18 U.S.C. 2725(3).

8. After hearing the parties’ arguments and considering the evidence presented on this issue, the Committee finds that (a) release of the identity of witnesses contained within the disputed records would constitute a clearly unwarranted invasion of personal privacy and (b) the records contain information restricted by other state and federal statutes. The Commission should redact the records accordingly to reflect the Committee’s findings.

ORDER

THEREFORE, IT IS ORDERED THAT Petitioner, Chadwick M. Smith’s appeal is granted and the Utah State Tax Commission shall, within thirty (30) days, provide Petitioner access to the requested records with appropriate redactions as outlined in this order.

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 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 25th day of April 2011.

BY THE STATE RECORDS COMMITTEE

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BETSY ROSS, Chairperson
State Records Committee