State Records Committee Appeal Decision 2014-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DENNIS J. GARCIA, Petitioner, v.

UTAH BOARD OF PARDONS, Respondent.

DECISION AND ORDER

Case No. 14-13

By this appeal, Petitioner Dennis J. Garcia seeks records that reflect the vote of the members of the Board of Pardons (“Board”) on a restitution order.

FACTS

In a letter dated December 23, 2013, Mr. Homer, on behalf of his client, Dennis J. Garcia, made a request with the Board for all public records concerning a hearing on September 24, 2013, in which his client was ordered to pay $7,000 in restitution. On December 31, 2013, Kym Chaplin, an office specialist for the Board, responded to Mr. Homer’s request, explaining that Mr. Garcia’s September 24, 2013, Board hearing was a paper review which simply set his original hearing date, and therefore there were no meeting minutes to provide. The letter also stated that all public records have been enclosed that the Board took into consideration in making its decision.

On May 23, 2014, Mr. Homer made a second records request seeking all records of the Board concerning any and all meetings, including the minutes of the meeting, and more specifically, the records which evidence the individual “vote” of Board members concerning the said restitution order for Mr. Garcia. On May 27, 2014, Greg Johnson, an administrative coordinator with the Board, responded to Mr. Homer’s request stating that the public records from Mr. Garcia’s file were already released to him, and that memoranda prepared by staff for use in the decision making process of the Board are protected records. Mr. Johnson cited Utah Code § 63G-2-103(22)(b)(xi)(C), which states that notes or internal memoranda created as part of deliberations by the Board are not records subject to GRAMA, as his reasoning. Therefore Mr. Johnson did not release the “Hearing Worksheet” from the October 5, 2010, hearing which was prepared as an internal memorandum; in addition he did not release the notes and votes of individual Board members. However, he did enclosed copies of the orders the Board made in connection with the said hearing.

In response, Mr. Homer responded, in a letter dated June 3, 2014, renewing his request for any and all “vote” records, stating that the records are not exempt under GRAMA, citing Utah Code § 63G-2-201(2), which states that a record is public unless otherwise expressly provided by statute. On June 13, 2014, Mr. Homer appealed his request to Mr. Clark A. Harms, Chairman with the Board, citing Utah Code § 63G-2-401(6), which states that the chief administrative officer can order the release of the records if the interests favoring access are greater than or equal to the interests favoring restriction of access.

Clark Harms denied Mr. Homer’s appeal, reasoning that the “Hearing Worksheet” from the October 5, 2010, hearing was prepared as an internal memorandum between a hearing officer and the Board, and the notes and votes of the individual board members are not public records, pursuant to Utah Code §§ 63G-2-103(22)(b)(xi)(c), and 63G-2-305(34).

In response, Mr. Homer filed an appeal with the State Records Committee (“Committee”) pursuant to Utah Code § 63G-2-403(1). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on August 21, 2014, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-201(1), 63G-2-203 and 63G-2-204.

2. Pursuant to GRAMA, “Record” does not mean a note or internal memorandum prepared as part of the deliberative process by: (A) a member of the judiciary; (B) an administrative law judge; (C) a member of the Board of Pardons and Parole; or (D) a member of any other body charged by law with performing a quasi-judicial function. Utah Code §63G-2-103(22) (b) (xi).

3. Pursuant to GRAMA, a record is “protected” if it is memoranda prepared by staff and used in the decision-making process by an administrative law judge, a member of the Board of Pardons and Parole, or a member of any other body charged by law with performing a quasi-judicial function. Utah Code § 63G-2-305(34).

4. After reviewing the arguments submitted by the parties, hearing oral arguments, testimony, and reviewing the documents in camera, the Committee finds that Mr. Garcia’s request is not considered a “record” under Utah Code § 63G-2-103(22)(b)(xi) and Appeal 06-02.

5. As such, Mr. Garcia’s request is denied.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Dennis J. Garcia, 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 2nd day of September 2014.

BY THE STATE RECORDS COMMITTEE

_____________________________
LEX HEMPHILL, Chairperson
State Records Committee