State Records Committee Appeal Decision 2016-46

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL WACH, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 16-46

By this appeal, Petitioner, Paul Wach, seeks access to records held by Respondent, the Utah Department of Corrections.

FACTS

On August 11, 2016, the Records Bureau for the Utah Department of Corrections (“Corrections”) received a request for records by Mr. Wach pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Wach requested a copy of “Cautions” within Corrections’ offender database, where Corrections personnel can enter specific “cautions” about inmates housed by Corrections, assisting Corrections Officers in their day-to-day housing, and management of inmates. In a letter dated August 16, 2016, Mr. Wach was informed that his records request was being denied because the information was protected by GRAMA pursuant to Utah Code §§ 63G-2-305(11) and -305(13).

Mr. Wach filed an appeal of the denial to Mike Haddon, Deputy Director of Corrections. Mr. Haddon denied Mr. Wach’s appeal in a letter dated August 29, 2016, upholding the August 16, 2016, denial of the records request. Mr. Wach filed an appeal with the State Records Committee (“Committee”), and on November 11, 2016, the Committee held a hearing regarding Mr. Wach’s appeal. The Committee, having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the requested records in camera, 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 private, controlled, or protected under Utah Code §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).

2. Records the disclosure of which would jeopardize the life or safety of an individual are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(11). Additionally, records that if disclosed “would jeopardize the security or safety of a correctional facility” or relating to incarceration, treatment, probation, or parole “would interfere with the control and supervision of an offender’s incarceration, treatment, probation, or parole,” are also protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(13).

3. Deputy Warden Robert Powell from Corrections testified at the hearing that entries in the “Cautions” database are used by Corrections to evaluate and manage risks inmates may pose to other inmates within correctional facilities. Counsel for Corrections argued that release of this information would put inmates “at risk of victimization or retaliation.” Additionally, release of the information would allow inmates to know what Corrections considers to be potential threats, making it easier for inmates to manipulate security protocols in order to smuggle contraband into a facility, attempt escape from a facility, and/or harm others within a facility.

4. After having reviewed all arguments and evidence, and having reviewed the requested records in camera, the Committee finds that the records were properly classified by Corrections as protected records pursuant to Utah Code §§ 63G-2-305(11) and -305(13). The Committee is persuaded that release of the information contained in the records would jeopardize the life or safety of individuals, and jeopardize the security or safety of a correctional facility.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul Wach, is hereby 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 November 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee