Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2012-17

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL GUBAREV, Petitioner, vs.

UTAH DEPARTMENT OF WORKFORCE SERVICES, Respondent.

DECISION AND ORDER

Case No. 12-17

By this appeal, Petitioner, Michael Gubarev, seeks to appeal the denial of his request for records regarding administrative adjudicative decisions from the Department of Workforce Services (“DWS”) relating to interpreters/translators working for certain employers/businesses.

FACTS

On or about January 26, 2012, Mr. Gubarev made a records request to DWS pursuant to the Utah Government Records Access and Management Act (“GRAMA”). DWS denied his request on February 2, 2012, indicating that records sought by Mr. Gubarev were protected under Utah Code §§ 63G-2-305(4) & (9) and 35A-4-312. On July 26, 2012, Mr. Gubarev appealed the denial of his records request to Kristen Cox, Executive Director for DWS. Ms. Cox denied Mr. Gubarev’s appeal affirming the previous findings that the records sought by Petitioner are protected records pursuant to Utah Code § 63G-2-305(4) and (9) and private records pursuant to Utah Code § 35A-4-312. Mr. Gubarev now appeals the denial to the State Records Committee (“Committee”). The Committee having reviewed the written submissions of the parties and having heard oral argument and testimony on September 13, 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. Final opinions, including concurring and dissenting opinions, and orders that are made by a governmental entity in an administrative, adjudicative, or judicial proceeding, are normally 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. See Utah Code § 63G-301(2)(c).

3. Utah Code § 35A-4-312 details when information obtained by DWS may or may not be disclosed and also states in part that “information obtained under this chapter or obtained from an individual may not be published or open to public inspection in any manner revealing the employing unit’s or individual’s identity.” See, Utah Code § 35A-4-312(3). Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, are protected, if release of the records reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings. See Utah Code § 63G-2-305(9)(b). Additionally, records the disclosure of which could cause commercial injury to, or confer a competitive advantage upon a potential or actual competitor of, a commercial project entity as defined in Utah Code § 11-13-103(4) are protected if properly classified by the governmental entity. Utah Code § 63G-2-305(4).

4. At the hearing, the Records Officer for DWS argued that access to records and/or decisions in cases regarding companies was prohibited by statute because such release may divulge how those companies treat their employees and reveal business model information they would not want released to their competitors. DWS also argued that the records/decisions from these other companies were maintained for audit and/or enforcement purposes and were private records pursuant to Utah Code § 63G-2-305(9)(b) and therefore could not be released to petitioner. DWS acknowledged the provisions of Utah Code § 63G-301(2)(c), but claimed that Utah Code § 35A-4-312 was the controlling statute because it was more specific to DWS records/decisions.

5. Mr. Gubarev argued that he should be allowed access to the administrative decisions/records he requested and that DWS could comply with Utah Code § 35A-4-312 by redacting the names and any other information required by that section from the records before releasing the records to him. Mr. Gubarev further argued that Utah Code § 63G-2- 305(9) would not apply in his case because there would not be any commercial damage to any other company if the names and other identifying information is redacted prior to the release of the records. Finally, Mr. Gubarev claimed that since he was requesting final orders/decisions, there would be no ongoing audit that would be interfered with as a result of the release of the prior decisions.

6. After hearing the arguments of the parties, having reviewed their submissions, and having reviewed some of the records in camera, the Committee finds that the records requested by Mr. Gubarev are public records because they are final opinions and/or decisions of an administrative adjudicative proceeding pursuant to Utah Code § 63G-2-301(2)(c) which should be made available to the public for review. The Committee also finds that the records requested by Mr. Gubarev can be redacted in such a way to protect the employing unit and employees’ information pursuant to the requirements of Utah Code § 35A-4-312.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Gubarev is upheld and that the Utah Department of Workforce Services shall release all records responsive to Petitioner’s request after having first redacted any information required by Utah Code § 35A-4-312.

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 24th day of September, 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee