State Records Committee Decision 2015-19

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PATRICK SULLIVAN, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS, CLINICAL SERVICES. Respondent.

DECISION AND ORDER

Case No. 15-19

By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, Utah Department of Corrections, Clinical Services.

FACTS

On or about November 14, 2014, through April 1, 2015, Mr. Sullivan made multiple records requests to the Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Unresolved issues in Correction’ response to Mr. Sullivan’s requests, can be summarized as follows:

(1) Mr. Sullivan is not entitled to fee waivers for the requested records;
(2) No record responsive to request; and
(3) Governmental entity does not maintain record.

Mr. Sullivan filed an appeal with the State Records Committee (“Committee”) concerning Corrections denial of his fee waiver request and access to certain records for which corrections provided a referral. The Committee having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, on June 11, 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 Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303, -304 and -305.

2. 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-2-203 and -204. Utah Code § 63G-2-201(1). Utah Code § 63G-2-203(1) provides that a governmental entity “may charge a reasonable fee to cover the governmental entity’s cost of providing a record.” Actual costs may include the cost of staff time for “compiling, formatting, manipulating, packaging, summarizing or tailoring the record” into an organization to meet the person’s request, and the cost of staff time for search, retrieval, and other direct administrative costs for complying with the request. See, Utah Code § 63G-2-203(2)(a)(i) & (ii).

3. A governmental entity “may fulfill a record request” without charge and is encouraged to do so when it determines that: (1) The individual requesting the record is the subject of the record; or (2) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(b) & (c).

4. Under GRAMA, the discretion for granting a fee waiver is essentially left to the governmental entity providing the record. Corrections outlined its procedures for granting fee waivers including a policy decision to not charge indigent prisoners copy costs for the first 100 pages of documents received from Corrections annually. The standard of review for the Committee is to determine whether Corrections’ decision denying Mr. Sullivan’s request for a fee waiver was an “unreasonable denial of a fee waiver.” See, Utah Code § 63G-2-203(6)(a). After reviewing the arguments of the parties, the Committee finds that Corrections’ decision denying Mr. Sullivan’s request for a fee waiver was not an unreasonable denial.

5. Counsel for Corrections stated that Corrections failed to provide Mr. Sullivan with certain
requested records because Corrections does not possess these records. Mr. Sullivan was
notified of the name and address of the governmental entity that maintains the records
pursuant to Utah Code § 63G-2-204(3)(b)(iii).

6. Based upon the evidence presented, the Committee finds that the Corrections appropriately searched for the requested records, is not obligated to provide records it does not possess, and properly provided Mr. Sullivan the name and address of the governmental entity that does maintain the record.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, 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). 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