State Records Committee Appeal Decision 2016-25

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DANIEL ORTIZ, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 16-25

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

FACTS

On or about February 12, 2016, Mr. Ortiz made a records request to Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Ortiz requested “[a]ny and all Incident Reports, including contacts, Narratives and Supplemental on my Record File, and on O-Track." In addition to the records request, Mr. Ortiz requested a fee waiver solely on the grounds that he is subject of the requested records.

On or about February 16, 2016, Jeralyn Zimmerman responded to Mr. Ortiz on behalf of Corrections, denying the fee waiver on the grounds that Mr. Ortiz was not indigent. Mr. Ortiz appealed the denial of the fee waiver, and on March 14, 2016, Deputy Director Mike Haddon responded to Mr. Ortiz's appeal, upholding the denial of the fee waiver request.

Mr. Ortiz 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 July 14, 2016, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA states 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 Sections 63G-2-203 and 63G-2-204.” Utah Code § 63G-2-201(1).

2. Utah Code § 63G-2-203(1) states 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. Corrections presented evidence from Gina Proctor, a records officer for Corrections. Ms. Proctor explained that an inmate is not considered indigent unless the inmate’s account balance falls below $9.00 for 45 consecutive days. Ms. Proctor went on to explain the appraisal process for applying fee waivers when the inmate is the subject of the record. For example, she explained that the fees are typically waived for medical records, because inmates have a constitutional right to adequate medical care. Conversely, she explained that fees are not typically waived for incident reports, such as those sought by Mr. Ortiz because they do not rise to the same level or criticality as medical and financial records.

5. The standard of review for the Committee is to determine whether Corrections’ decision denying Mr. Ortiz’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 and the subject matter of the requested documents, and considering the reasoning used by Corrections to deny the fee waiver request, the Committee finds that Corrections’ decision to deny Mr. Ortiz’s fee waiver request was not an unreasonable denial.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Daniel Ortiz, 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 26th day of July 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee