State Records Committee Appeal Decision 2016-29

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KEVIN BERRY, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 16-29

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

FACTS

On or about February 23, 2016, Mr. Berry made a records request to Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Berry requested “psychological evaluation, all medication prescribed, housing units staff comments, clinical evaluations, therapist notes [and] comments and communicational comments from the Attorney General's Office."

On or about March 1, 2016, Susan Delong responded to Mr. Berry on behalf of Corrections, providing him nineteen pages of responsive records. Ms. Delong also denied Mr. Berry's request for the remainder of the responsive records on the grounds that they were classified as "controlled" pursuant to Utah Code §63G-2-304.

Mr. Berry filed an appeal to Deputy Director Haddon on March 26, 2016, and after a requested extension for the purposes of review, Mr. Haddon responded to Mr. Berry on May 1, 2016, upholding the initial denial.

Mr. Berry 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 August 11, 2016, 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 medical, psychiatric, or psychological data about an individual that the governmental entity reasonably believes if released would be detrimental to the subject’s mental health or to the safety of any individual, are controlled records if properly classified. Utah Code § 63G-2-304.

3. Corrections presented testimony that information within the records concerned the mental health of individuals housed by Corrections, and that release of the information would be detrimental to the safety of individuals and to Corrections’ staff.

4. After having reviewed the written materials, and hearing arguments and testimony from the parties, the Committee finds the testimony concerning the mental health of individuals and safety of the Corrections’ staff persuasive and that Corrections properly classified the records as controlled records pursuant to Utah Code § 63G-2-304. See also, Humphries v. Washington Cty. Sch. Dist., State Records Decision 00-02 (Feb. 10, 2000); Watkins v. Ut. Dept. of Corr., State Records Decision 99-02 (Mar. 18, 1999); and Brantzeg v. Ut. Dept. of Corr., State Records Decision 95-03 (May 11, 1995).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kevin Berry 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 August 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee