Consumers Win a Victory in Utah Open Records Case

Consumers received an important holiday present this year when the Utah State Records Committee ruled in favor of TINA.org’s request to obtain copies of consumer complaints filed with the state Department of Commerce against three e-cigarette companies that had been the subject of an agency enforcement action. (Update: Utah officials notified TINA.org Friday that it will comply with the ruling and release the records)

There’s much to applaud in the State Records Committee ruling, most notably that it rejected the state’s assertions that the hundreds of complaints were protected records and could not be disclosed for a variety of reasons. And when I say variety, I mean the state made several different arguments as the case evolved.

First, the Utah Department of Commerce argued that it couldn’t release complaints filed with its Division of Consumer Protection because it considers complaints confidential investigatory records. Such was its argument in the first records case TINA.org appealed regarding efforts to obtain consumer complaints against Utah-based WakeUpNow. The Records Committee ruled in the agency’s favor on that one. But it seems the tide is turning.

In our second appeal regarding consumer complaints filed against the three e-cigarette companies –which had all been the subject of a TINA.org investigation — we pointed out that the companies’ names were released by the state when it announced citations against them this summer. Yet the state claimed it still could not release the consumer complaints that prompted the citations  in the first place because the investigations of the three companies had not yet concluded and disclosing the complaints could interfere with a pending law enforcement proceeding.

When the state did reach final settlements with the companies in October, Assistant Attorney General Ché Arguello, arguing on behalf of the department, said that the state legislature never intended to release consumer complaints, and if it had it would have specifically listed consumer complaints as having to be included in the public files of enforcement actions. He also claimed that if the state released the consumer complaints it could be divulging private financial information about consumers who filed the complaint. Like what? That consumers had gotten their credit cards debited repeatedly without their consent, as was the case with the e-cigarette companies?

During the appeals hearing before the Records Committee, Arguello argued, “In the world my client (Department of Commerce) operates, complaints are evidence of nothing.”

When I requested the records, I didn’t feel we were asking for anything unusual. Indeed, most states disclose consumer complaints and some even post searchable online databases. Consumer complaints are also readily disclosed by the Federal Trade Commission.

We think complaints are important information consumers should be able to access in order to make informed decisions about doing business with a company. And we think it’s also important that the state disclose the complaints so its citizens can know whether state agencies are responding to them appropriately.

But Arguello took issue, telling the committee in the appeals hearing:

They insinuate there is something nefarious going on. I think that is inappropriate. I think that is dangerous and I think it is offensive….I think we need to dispel with that nonsense.

To be clear, TINA.org isn’t insinuating “that there are any nefarious activities going on,” Laura Smith, legal director of TINA.org told the committee, “but the issue is we’d have no way of knowing if there was.”

Committee member Holly Richardson, a citizen representative, took issue with the state’s presentation, saying she found it  “offensive.”  Said Richardson:

I, this month and last month, have found it to be disturbing and frustrating that the presentation made to our committee has been condescending and has been, I think from my perspective, an effort to jump through an incredible number of hoops to prevent the public to having access to records.

Specifically, several members of the committee were critical of the state’s assertion that when the  state legislature wrote the government records management act it did not want consumer complaints disclosed. Richardson said:

I am very concerned with the absolute statement that the legislature deliberately omitted specific things when they passed the law. I do not believe that to be the case. Having been in the legislature, I can tell you that frequently there are, in fact almost always, laws passed that address a specific situation and not every single situation can possibly be contemplated and included or excluded in the law … I do not agree the law as written specifically precludes the department from releasing the information requested.

Tom Haraldsen, a journalist who is a member of the committee, said:

If the Division of Consumer Protection by name is designed to protect consumers…why isn’t the public allowed to know if you’ve received complaints?

Committee Chairwoman Patricia Smith-Mansfield went further and called into question whether a complaint is an investigatory record and thus exempt from disclosure.

I don’t view a complaint file necessarily as the investigation…. I don’t think complaint files are expressly identified as being anywhere included [in the statute] as being restricted access.

This view opens the door to the notion that consumer complaints are vital public records and that the state legislature never intended for them to remain secret. And that’s an important victory for consumers in Utah.

Read more here about TINA.org’s open records efforts.

This story was updated on 1/16/2015.