Dark Logic: Keeping Consumer Complaints Sealed

By Fran Silverman

fran silvermanIf you are interested in a product or service from a company based in Utah and want to research how consumers have fared, you’re going to be hobbled in your efforts.

I recently found out when a public records request of mine was denied that government officials in Utah will not release complaints or even confirm if they have received any. This is alarming to consumers and journalists in all states who are investigating a company there or seeking information about businesses based in their own states under similar freedom of information laws.

Utah contends that these consumer records cannot be disclosed because they are considered “investigatory records”; that state laws bar it from disclosing the names of any individual or entity under investigation unless the identity has become a matter of public record in an enforcement proceeding; and that a business’ reputation could be harmed if consumers can review complaints filed with the state. That was the justification the state used to turn down my request for consumer complaints against four different businesses based there.

Most states, such as Connecticut, make these complaints public through their respective FOI statutes. Some states, such as New Hampshire, even post searchable databases online. Vermont’s Attorney General’s Office, through its Consumer Assistance Program, alerts consumers outright on its website that any complaint filed is a public record. The Federal Trade Commission also makes these complaints available, whether they are taking enforcement action against a company or not. But in Utah, even if a company has 1,000 complaints against it, it is “irrelevant” for consumers to know, according to state officials, who maintain these records are only relevant if the state determines the business violated state laws and it takes enforcement action.

That’s a mighty big if. And what it means is if you are seeking consumer complaints about a business in a state where they are not disclosed, state agencies can act in secrecy on what to do about them without any scrutiny or oversight by journalists and citizens.

The danger of a public agency acting behind closed doors was specifically addressed by Utah’s own Supreme Court in a 1984 case in which it stated: “The court recognizes that it is the policy of this state that public records be kept open for public inspection to prevent secrecy in public affairs.” This reflects the same spirit behind most state public records laws. Utah officials can release these records if they want. There is plenty of authority in state statutes to allow for this disclosure. In fact, there is a section of Utah’s Government Records Access and Management Act that trumps all arguments by state officials. It states that a government agency, even if deeming a record protected, can still disclose it if “the interests favoring access are greater than or equal to the interest favoring restriction of access.”

It is in the interest of the public to know if companies in Utah  — or any state, for that matter — have complaints against them and what action, if any, the state has taken.

Journalists in particular should pay attention to this and not only make consumers aware of Utah’s policy, but check to see if consumers in their own state are being denied access to these important records.

Fran is editor of truthinadvertising.org, a Connecticut-based non-profit consumer advocacy website. She can be emailed at fsilverman@truthinadvertising.org.

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