State Records Committee Appeal Decision 2013-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PHILLIP LEISHMAN, Petitioner, vs.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 13-05

By this appeal, Petitioner, Phillip Leishman, seeks access to records from the Utah Department of Corrections (“UDC”) regarding security clearances granted for another prison inmate.

FACTS

On a form received by the Division of Institutional Operations on February 4, 2013, Mr. Leishman made a records request for “[a]ll 3 (or more) security clearances which were signed by the Deputy Wardens office” regarding a specific prisoner’s religious practices observed by “various staff supervision in the Wasatch Family History Center back offices from December 8 to the 15th, 2012.” Mr. Leishman listed the reason for his request because the record “is relevant evidence to claims raised in my current lawsuit.” The Division of Institutional Operations denied Mr. Leishman’s records request stating that the information is private pursuant to Utah Code § 63G-2-302 and “the record responsive to this request is Private to another inmate, I cannot release it to you as you have not shown that you are entitled to access.”

In a document dated March 19, 2013, Mr. Leishman filed an appeal with the Deputy Director of UDC, requesting that he receive the documents, but have the specified prisoner’s information “blocked out.” In a letter dated April 4, 2013, the Deputy Director of UDC denied Mr. Leishman’s appeal, finding that “[g]iven the specificity of your request, disclosing this record to you, even with [the prisoner’s] name redacted, would still implicate the very privacy interests that the classification is intended to protect.” Mr. Leishman now appeals UDC’s denial of his GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on July 11, 2013, 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. Governmental entities may designate “records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy” as private if the records are properly classified by the governmental entity. Utah Code § 63G-2-302(2)(d).

3. UDC argued that release of records disclosing the specific religious practices of a prison inmate would be an unwarranted invasion of personal privacy. UDC contended that the United States Supreme Court “long ago recognized that an individual’s freedom to associate for the advancement of religious beliefs is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” UDC response, ¶6, following Nat’l Assoc. for the Advancement of Colored People v. Alabama, 357 U.S. 449, 462 (quotes omitted). UDC stated that Utah Code § 63G-2-202 provides a mechanism for Mr. Leishman to obtain copies of private records concerning an individual if that individual agrees to a release of the specified record. See, Utah Code §63G-2-202(1)(d)(ii). Since no such release form had been received, UDC believes it is obligated to keep private the information contained within the record concerning the inmate’s religious practices.

4. After hearing the arguments of the parties, the Committee finds that UDC properly classified the records as private pursuant to Utah Code § 63G-2-302(2)(d). The information contained within the subject records involves the personal religious practices of a prison inmate, the release of which would constitute a clearly unwarranted invasion of the inmate’s personal privacy. Absent an authorized release of the records by the subject individual, the records should remain private, and therefore, not released to Mr. Leishman.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Phillip Leishman, is DENIED pursuant to Utah Code § 63G-2-302(2)(d).

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 22nd day of July 2013.

BY THE STATE RECORDS COMMITTEE

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LEX HEMPHILL, Chairperson
State Records Committee