HB40: Bill would require state agencies to close investigations to public


By Madeleine Lewis
Capital West News

SALT LAKE CITY – People who have their criminal record cleared in Utah’s court system, may still be haunted by past mistakes kept in state agencies’ files.

Rep. Brian Green, R-Pleasant Grove
Rep. Brian Green, R-Pleasant Grove

Reps. Brian Greene, R-Pleasant Grove, and Eric Hutchings, R-Kearns, want to fix that.

“There is a point of disagreement between many of us in the Legislature and the administrative agencies,” Rep. Brian Greene, R-Pleasant Grove, said.

HB40 is an attempt to end a long-standing dispute between government agencies and lawmakers over the application of expungement law to administrative records.   An expungement is a court order to seal or remove records from the public’s eye of past infractions or criminal activity after an appropriate waiting period, but state agencies haven’t always done the same in administrative records.

If passed, the bill would require that an agency remove details about administrative and criminal investigations from public access if the records have been expunged in court. Agencies could retain the records for internal use.

“They’re supposed to not disclose them anymore,” Greene said. “They’re supposed to expunge them and keep them out of the public record as well. They’re not doing that.”

Hutchings is sponsoring the bill, but Greene has been instrumental in getting this issue heard. This is an important issue for Green because Utahns aren’t receiving the expungements they’ve been given in court, he said.

“When getting these expungement orders, they’re only getting half their name cleared — the criminal aspect of it — because the agencies have refused to expunge or otherwise remove those administrative records from their public databases,” Green said.

Many criminal investigations begin when an administrative agency has investigated illegal actions under their jurisdiction, such as selling securities without a license. Investigators may come across evidence that suggests criminal activity, such as selling fraudulent securities. At this point the investigation is handed over to law enforcement officers, but the agency retains records of the original investigation. These records could come up in a background check even though they are not criminal in nature.

The agencies continue to insist the statute only applies to the criminal investigation and prosecution. According to Greene, agencies aren’t applying the law to records in their databases of their inquiry that led up to and sometimes coincide with criminal investigations. This leaves references of the criminal investigation available for the public to access and potentially disseminated.

Resistance from agencies may stem from the type of databases they use. “There’s no gatekeepers into these databases, they’re just open to the public. You can go onto the (Division) of Real Estate and Department of Commerce and look for disciplinary action records,” Greene said.

This could make it tricky to edit out information that must be kept for internal use, but shouldn’t be read by the public.

The bill specifically mentions the Division of Occupational and Professional Licensing, but the drafting attorney said the bill will likely be amended the in committee to include all government administrative agencies in Utah.

Capital West News contacted the Division of Occupational and Professional Licensing about the proposed bill’s effect on the division.  In response, Jennifer Bolton, Utah Department of Commerce spokeswoman, said the agency doesn’t comment on proposed legislation.

The changes to current law should not affect how criminal records are expunged, according to Greene.

“I think the expungement process works just fine in the purely criminal context,” Greene said. “It’s only where you’ve had some sort of concurrent or parallel or prior initiation of that investigation and disciplinary action started by an administrative agency.”

In an interim legislative hearing in 2014, Utah expungement attorney Dain Smoland said that expungements of criminal records take 8-12 weeks and can cost between $300-$800.

This process requires an individual to obtain an expungement certificate from the Bureau of Criminal Identification for $106. Then the individual can take it separately to each agency where there are records they want expunged.

The bureau has examples of expungements costing $6,000 in legal fees.

This bill will be heard in the 45-day legislative session which begins Jan. 26.

Riley Lewis contributed to our report.

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