State Records Committee Appeal 2008-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KEN MURRAY
ARIZONA PUBLIC DEFENDER, Petitioner, vs.

UTAH DEPARTMENT OF CORRECTIONS,Respondent.

DECISION AND ORDER

Case No. 08-11

By this appeal, Ken Murray, Assistant Federal Public Defender for the District of Arizona, seeks access to records of the Utah Department of Corrections (“Corrections”), specifically records pertaining to Utah’s methods and procedures for capital punishment.

FACTS

On January 25, 2008, Mr. Murray made the following requests for records from Corrections pursuant to the Government Records Access and Management Act (“GRAMA”).

(1) Protocols, handbooks, training manuals utilized by the department to conduct executions by lethal injection and by firing squad.

(2) Manuals, materials, curricula used to train members of the execution team or teams, whether the members be department employees or not, and including medical personnel.

(3) Records that reflect the actual training, including dates of training, of members of the execution team or teams, whether the members be department employees or not, and including medial personnel.

(4) Records that reflect the qualifications required of members of the execution team or teams, whether the members be department employees or not, and including medical personnel.

(5) Records of payments to members of the execution team or teams, whether the members be department employees or not, and including medical personnel.

(6) Records of any contracts entered into to facilitate execution, including for personal services, supplies and consultations.

(7) The selection process for the execution teams, whether the members be department employees or not, and including medical personnel.

(8) Identities, identifiers, titles and qualifications (including employment history and personnel files) of member of the execution team or teams, whether the members be department employees or not, and including medical personnel.

(9) Records reflecting the deliberative process, including internal or external communications from any party, employed in establishing the protocols, handbooks, training manuals and qualifications, including the selection of team members, of members of the execution team or teams, whether the members be department employees or not, and including medical personnel.

(10) Old protocols, manuals, curricula and training programs no longer in use.

(11) A list and copies of all standard reports and forms employed by the department to memorialize, describe or document executions and the actions of members of the execution team or teams, whether they be department employees or not, including medical personnel.

(12) All documents and records produced (as described in No.9) relative to executions conducted by the State of Utah since 1950, including evaluations of process and performance of the execution teams, whether they be employees of the department or not, and including medical personnel.

(13) Results of autopsy reports, including post-mortem photographs, of those executed.

On February 26, 2008, Corrections denied Mr. Murray’s request in its entirety pursuant to Former Utah Code Ann. § 63-2-304 (10), (11), (12). Corrections stated in its letter that:
[T]he contents of any documents which detail the life and death procedure of an execution fill the description of being records the disclosure of which would jeopardize the life or safety of an individual…which would jeopardize the security of governmental property, governmental programs, or governmental record keeping systems from damage, theft…would jeopardize the security or safety of a correctional facility.

Mr. Murray appealed Corrections’ denial to Corrections’ Deputy Director, who also denied the records request finding that records contained security measures that were designed for the protection of persons or property both public and private. Corrections however did release two records containing information concerning capital punishment in Utah.
Mr. Murray now appeals the denial of his GRAMA request to the State Records Committee (“Committee”). After having reviewed the materials submitted by the parties, and hearing oral argument and testimony before the Committee on July 10, 2008, the Committee issues the following Decision and Order.

MOTION TO DISMISS

In response to Mr. Murray’s appeal, Corrections filed a Motion to Dismiss arguing that the Committee lacks jurisdiction to decide the merits of Mr. Murray's appeal because "the records sought by petitioner, Mr. Murray, are records of security measures which are specifically exempted by statute." Corrections claims that their records are not subject to the provisions of GRAMA pursuant to Utah Code Ann. § 63G-2-106, which states in part that records of a governmental entity or political subdivision "regarding security measures designed for the protection of person or property, public or private, are not subject to this chapter." Corrections contends that with the use of the phrase "not subject to this chapter," the Legislature specifically exempted security measure records from the purview of this Committee. We disagree.

The jurisdiction of the Committee to hear appeals is outlined in Utah Code Ann. § 63G-2-402(2), which states: "Any person aggrieved by a determination of the chief administrative officer of a governmental entity under this chapter, including persons who did not participate in the governmental entity's proceeding, may appeal the determination to the records committee as provided in § 63G-2-403." See also Utah Code Ann. § 63G-2-701(5). Regarding the appellate procedure, Utah Code Ann. § 63G-2-403(11)(a) states that after a hearing, the Committee "shall issue a signed order either granting the petition in whole or in part or upholding the determination of the governmental entity in whole or in part."
A review of Chapter 63G-2 shows that the Legislature chose not to distinguish which records could be reviewed by the Committee. Chapter 63G-2 outlines a simplified process whereby a petitioner or an aggrieved party "may appeal the determination" of the governmental entity to the Committee, and the Committee may uphold or overrule the governmental entity's determination. The fact that Utah Code Ann. § 63G-2-106 excludes records regarding security measures from the definitions of public, private, controlled, or protected records by using the phrase "not subject to this chapter," does not in turn divest jurisdiction from the Committee to determine whether the governmental entity properly classified the records as "security measures." Accordingly, we overrule Corrections' Motion to Dismiss and find that pursuant to Utah Code Ann. § 63G-2-403, the Committee has jurisdiction to hear appeals and review determinations made by governmental entities concerning whether a record was properly classified a public, private, controlled, or protected record, and also whether a record incorporates security measures pursuant to Utah Code Ann. § 63G-2-106.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“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.” Utah Code Ann. §§ 63G-2-302, -303 and -304. Corrections denied Mr. Murray the records he sought on the grounds that the records were designed for the protection of persons or property, public or private, pursuant to Utah Code Ann. § 63G-2-106, and, therefore, are not subject to the provisions of GRAMA. In the alternative, Corrections denied the records sought by Mr. Murray pursuant to: (1) Utah Code Ann. § 63G-2-305(10), records the disclosure of which would jeopardize the life or safety of an individual; (2) Utah Code Ann. § 63G-2-305(11), records the disclosure of which would jeopardize the security of governmental property; and (3) Utah Code Ann. § 63G-2–305(12), records the disclosure of which would jeopardize the security or safety of a correctional facility, or interfere with the control and supervision of an offender’s incarceration, treatment, probation or parole.

2. Having heard argument from both parties, the Committee finds the records responsive to items 1, 2, 8, 9, and 10 of Mr. Murray’s request may not be disclosed in that they are considered “records of security measures” pursuant to Utah Code Ann. § 63G-2-106.

3. The Committee further finds the records requested in item 8 of Mr. Murray’s request may not be disclosed because they are “protected” records pursuant to Utah Code Ann. § 63G-2-305 (11) and (12).

4. The Committee finds the records requested in items 3, 6, 11, and 12 of Mr. Murray’s request are public records and shall be released except for the following information contained within those records concerning:

• Law enforcement officials pursuant to Utah Code Ann. § 63G-2-303(1)(a)(xii);
• Employment records concerning a current or former employee of, or applicant for employment with a governmental entity that would disclose that individual’s home address, home telephone number, Social Security number, insurance coverage, marital status, or payroll deductions pursuant to Utah Code Ann. § 63G-2-302(1)(f);
• Private information concerning current or former employees pursuant to Utah Code Ann. § 63G-2-303(1)(g) and § 63G-2-303;
• Information that would be a clear unwarranted invasion of personal privacy pursuant to Utah Code Ann. § 63G-2-303(2)(d);
• Information that is considered “protected” pursuant to Utah Code Ann. § 63G-2-305 (10), (11) and (12); and
• Information that concerns “security measures” pursuant to Utah Code Ann. § 63G-2-106.

5. The Committee finds the records requested in items 4, 5, and 7 have already been substantially released to Mr. Murray to the extent possible under GRAMA. The Committee is persuaded that any additional records responsive to Mr. Murray’s request outlined above may contain “private, protected and/or security information” and that Corrections has released records sufficient to respond to said request.

6. Item 13 of Mr. Murray’s request was withdrawn by stipulation of the parties inasmuch as the Department is not the holder of the records requested.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Ken Murray is granted in part as it relates to records responsive to items 3, 6, 11 and 12 of Mr. Murray’s request. The Department is hereby directed to within ten (10) days of receipt of this Order, identify and produce to Mr. Murray the records responsive to items 3, 6, 11 and 12, however the Department shall redact from the record(s) all information that is “private, controlled or security information” as outlined in this Decision and Order supra.

The Committee denies the portion of the appeal of Mr. Murray seeking the release records responsive to items 1, 2, 8, 9, and 10 of Mr. Murray’s request pursuant to Utah Code Ann. §§ 63G-2- 106, -302 –303 and -305. The records responsive to requests contained in Mr. Murray’s request for items 4, 5 and 7 have been released to Mr. Murray and shall not be addressed further.

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 17th day of July 2008.

BY THE STATE RECORDS COMMITTEE

____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee