State Records Committee Decision 2015-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RICHARD J. GARCIA, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 15-13

By this appeal, Petitioner, Richard J. Garcia, seeks access to records allegedly held by Respondent, Utah Department of Corrections.

FACTS

On or about February 13, 2015, Mr. Garcia made a records request to Utah Department of Corrections ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Garcia requested “transportation records from 7-8-14 to present” containing “all transportation departures & returns, dates, & time, policy regarding restraints.” The request was received by Respondent on or about February 18, 2015, but was returned to Mr. Garcia for compliance with Respondent’s policies, and was resubmitted on or about February 26, 2015.

On or about March 4, 2015, a records officer for Respondent denied Mr. Garcia’s GRAMA request on the grounds that the records being requested were classified as “protected.” On March 6, 2015, Mr. Garcia appealed the denial to the Respondent’s Deputy Director, Mike Haddon, which was received by the Executive Office on or about March 18, 2015. On March 19, 2015, Mr. Garcia’s appeal was denied on the grounds that transportation records for Respondent are protected records pursuant to Utah Code § 63G-2-305(11) & (13).

Mr. Garcia filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on May 14, 2015, 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. GRAMA also excludes certain documents from being considered GRAMA “records” and excludes some security measures from being subject to disclosure through GRAMA. See, Utah Code §§ 63G-2-103(22)(b) & -106.

2. Utah Code § 63G-2-305 provides that the following governmental records are considered “protected” records if they are properly classified by a governmental entity: (1) Records the disclosure of which would jeopardize the life or safety of an individual; and (2) Records that if disclosed, would jeopardize the security or safety of a correctional facility, or records relating to incarceration, treatment, probation, or parole, that would interfere with the control and supervision of an offender’s incarceration, treatment, probation, or parole. See, Utah Code § 63G-2-305(11) & (13).

3. Utah Code § 63G-2-106 additionally provides that records of a governmental entity “regarding security measures designed for the protection of persons or property, public or private” are not subject to disclosure through GRAMA.

4. Respondent presented testimony at the hearing that release of the requested records, specifically transportation orders as well as policy and procedures for Respondent, could result in harm to persons and/or jeopardize the security or safety of individuals. Respondent claimed that because of the security concerns the release of these records could cause, the disputed records were properly classified by Respondent to be protected records pursuant to Utah Code § 63G-2-305(11) & (13), or consist of records regarding security measures which are not subject to disclosure through GRAMA pursuant to Utah Code § 63G-2-106.

5. After reviewing the arguments submitted by the parties and hearing oral arguments and testimony, the Committee finds that Respondent properly classified the records as protected records pursuant to Utah Code § 63G-2-305(11) & (13), and additionally the procedures as protected and not subject to disclosure under GRAMA pursuant to Utah Code § 63G-2-106.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Richard J. Garcia, is DENIED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14) (2015). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a) (2015). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2) (2015). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6) (2015). 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(15)(c) (2015), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i) (2015). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii) (2015).

Entered this 26th day of May, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee