State Records Committee Decision 2015-18

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KARL LOSEE, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 15-18

By this appeal, Petitioner, Karl Losee, seeks access to records allegedly held by Respondent, Utah Department of Corrections.

FACTS

On a form dated January 9, 2015, Mr. Losee made a records request to the Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Losee requested copies of all e-mail messages between March 6, 2014, and January 9, 2015, generated by specified Corrections’ employees regarding him. On January 16, 2015, Corrections’ records officer rejected the request on the basis that it lacked specificity and required a money transfer to pay for the records request. On or about February 13, 2015, Corrections received Mr. Losee’s resubmitted request for e-mail messages of Corrections’ employees. Corrections’ records officer partially approved the request, and Mr. Losee was provided with 50 pages of redacted e-mails, claiming that the redacted portions of the records contained private information.

On or about March 25, 2015, Mr. Losee appealed the response to Deputy Director, Mike Haddon, arguing that he was entitled to the redacted portions of the e-mails. Mr. Haddon denied Mr. Losee’s appeal finding that the redacted portions were properly classified as private information. Mr. Losee filed an appeal with the State Records Committee (“Committee”), which was received on April 2, 2015. Additionally, on or about January 30, 2015, Mr. Losee made a second records request to Corrections regarding e-mail messages from December 2009 to March 31, 2010. This appeal was similarly denied by Corrections and in addition one e-mail was denied in its entirety as protected. An appeal was filed with the Committee.

During the appeals proceeding, June 11, 2015, Mr. Losee accepted all redacted e-mails and requested only access to one e-mail (on or about December 2009 to March 31, 2010) that was denied and classified protected. The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, on June 11, 2015, for both appeals, the Committee 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. Records are properly classified as protected if release of the records “… 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.” Utah Code § 63G-2-305(13).

3. Counsel for Corrections argued that release of the requested information would greatly impact and jeopardize the safety, security, and management of the correctional facility, and that this record should not be released pursuant to Utah Code § 63G-2-305(13).

4. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, and reviewing the record in camera, the Committee finds that Corrections’ denial of Mr. Losee’s record request, was appropriate, and that the record has been properly classified as “protected” pursuant to Utah Code § 63G-2-305(13).

5. The Committee also finds that Corrections could have additionally classified the record as “protected record” pursuant to Utah Code § 63G-2-305(10)(e), which allows protection for records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records reasonably could be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts.

ORDER

THEREFORE, IT IS ORDERED THAT the appeals of Petitioner, Karl Losee, are 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). 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). 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). 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). 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), 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). 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).

Entered this 22nd day of June, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee