State Records Committee Appeal 2015-32

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JOHN RICE, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 15-32

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

FACTS

On or about December 17, 2014, Mr. Rice made a records request to Utah Department of Corrections ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Rice requested “records obtained during my [LEB] background investigation…all records relating to discussions regarding [Petitioner’s] previous employment, including what statements were made, and by whom.” On or about January 15, 2015, Respondent notified Mr. Rice that the request was denied and that the records were classified as “private” pursuant to Utah Code § 63G-2-302(2)(d). On or about March 6, 2015, Mr. Rice appealed the denial to Deputy Director Mark Haddon, who upheld the decision that the record was appropriately classified as “private.”

On or about July 29, 2015, Mr. Rice submitted an identical GRAMA request, and the request was denied on August 7, 2015, on the grounds that the record was classified as “private” and because the request was a duplicative request pursuant to Utah Code § 63G-2-201(8). Mr. Rice appealed the second denial to Deputy Director Mark Haddon, and on or about September 1, 2015, Mr. Haddon notified Mr. Rice, via letter, that the decision to deny was being upheld on the grounds that the responsive record was appropriately classified as “private.”

Mr. Rice 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 November 12, 2015, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).

2. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy, are private records pursuant to Utah Code § 63G-2-302(2)(d).

3. Utah Code § 63G-2-305 states 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 correction 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).

4. Respondent presented testimony that in order to properly consider applicants for employment with Respondent, a background report is prepared which requires reception of confidential information from individuals. Additionally, applicants voluntarily sign a form notifying individuals that the information they provide will be confidential and that the applicant has voluntarily agreed to the confidentiality. The applicant's willingness to allow this information to remain confidential, and the individual's reliance on this statement of confidentiality are critical to the effectiveness of background investigations. Respondent argued that it would be a clearly unwarranted invasion of personal privacy to the individuals providing this information to release the information.

5. Respondent also argues that if released, records could jeopardize the life and safety of an individual or security of a correctional institution. “And those who provide information may be subject to retaliation by the applicant for doing so.” In addition, it could compromise the safety of “inmates, officers and other members of the public, and will threaten the security of UDC’s correction facilities.”

6. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds the record not protected in this instance pursuant to Utah Code §§ 63G-2-305(11) & (13). The Committee does find that Respondent properly classified portions of the record. As it relates to the statement of Mr. Rice’s former employer, the committee was not persuaded that an employer, or institution of employment, has an individual right of privacy as stated in the statute. Therefore, the statement of the employer’s representative were ordered released with the personal identifying information redacted pursuant to Utah Code §§ 63G-2-302(2)(d).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, John Rice, is GRANTED in part and DENIED in part.

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 23rd day of November, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee