State Records Committee Decision 2014-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JACK JESSOP, Petitioner, vs.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 14-08

By this appeal, Petitioner, Jack Jessop, seeks access to records from Respondent, the Utah Department of Corrections (“Corrections”).

FACTS

On February 19, 2014, Mr. Jessop filed a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) with Corrections. The request stated that all medications issued by Corrections for prisoners “come with information sheets that identify side effects and other aspects of the drugs” and that he had a “right to this information.” Mr. Jessop requested copies of all information sheets from the prescription drug manufacturers that accompanied the prescriptions he was receiving while incarcerated by Corrections from 2000 to the present.

Corrections initially denied access to the records because the information was “not found in your medical record” and suggested that Mr. Jessop “speak to your provider regarding questions about your medications.” After Mr. Jessop filed an appeal to this decision, Mike Haddon, Deputy Director for Corrections, denied the appeal stating that for “safety and security reasons this information has been classified as protected” pursuant to Utah Code § 63G-2-305(11) & (13). Mr. Jessop now appeals the denial of his request for records to the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on May 8, 2014, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. In enacting GRAMA, the Utah Legislature recognized two constitutional rights: (1) the public’s right of access to information concerning the conduct of the public’s business; and (2) the right of privacy in relation to personal data gathered by governmental entities. Utah Code § 63G-2-102(1). The Legislature intended to have through GRAMA, a procedure that promotes the public’s right to easy and reasonable access to unrestricted public records. Utah Code § 63G-2-102(3)(a).

2. GRAMA defines a “public record” as a record that is not private, controlled, or protected and that is not exempt from disclosure as provided in Utah Code § 63G-2-201(3). See, Utah Code § 63G-2-103(21). A “record” is defined in Utah Code § 63G-2-103(22)(a), and what is not considered a “record” is defined in Utah Code § 63G-2-103(22)(b).

3. Utah Code § 63G-2-103(22)(b)(iv) & (vi) states that a “record” does not mean: (1) material to which access is limited by the laws of copyright or patent unless the copyright or patent is owned by a governmental entity or political subdivision; or (2) a commercial publication received by a governmental entity or an official or employee of a governmental entity.

4. After having reviewed examples of the information sheets accompanying Mr. Jessop’s prescription drugs, the Committee finds that the requested documents are not “records” subject to GRAMA pursuant to the non-record definition found in Utah Code § 63G-2-103(22)(b)(iv) & (vi). The information sheets were generated by the drug manufacturers, are governed by copyright laws, and are commercial publications from the drug manufacturers. Even though the requested documents are not considered “records” under GRAMA and not discoverable through a written GRAMA records request, the Committee strongly encourages Corrections to share the information sheets with Mr. Jessop in a manner that still allows Correction to maintain the “safety and security” of the prison where Mr. Jessop is incarcerated.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jack Jessop is DENIED.

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 19th day of May 2014,

BY THE STATE RECORDS COMMITTEE

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LEX HEMPHILL, Chairperson
State Records Committee