State Records Committee Appeal Decision 2017-10

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

REGINALD WILLIAMS, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS Respondent.

DECISION AND ORDER

Case No. 17-10

By this appeal, Petitioner, Reginald Williams, seeks access to records allegedly held by Respondent, the Utah Department of Corrections (“Corrections”).

FACTS

On a form dated November 15, 2016, Mr. Williams made a request to Corrections for records pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Williams requested the “list or page one of all audits performed by [Corrections’] internal audit bureau from 2007 to present.” In a letter dated December 6, 2016, a Corrections records officer denied Mr. Williams’ request stating that the information is protected pursuant to Utah Code §§ 63G-2-305(10) and 64-13-25(2)(c). Mr. Williams filed an appeal to Corrections’ Deputy Director, Mike Haddon, which was received on December 16, 2016. In a letter dated January 11, 2017, Deputy Director Haddon affirmed the decision of the records officer.

In a letter dated January 19, 2017, Mr. Williams filed an appeal with the State Records Committee (“Committee”) which was received by the Committee on January 30, 2017. On March 16, 2017, the Committee held a hearing where the parties were allowed to present their legal arguments. After considering all arguments by the parties and reviewing all written materials, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. At the beginning of the hearing, counsel for Corrections made a Motion to Dismiss Mr. Williams’ appeal arguing that Mr. Williams failed to file a timely appeal with the Committee. Counsel claimed that Deputy Director Haddon’s failure to respond to Mr. Williams’ appeal within five business days of receipt of Mr. Williams’ notice of appeal is the equivalent of a decision affirming the access denial pursuant to Utah Code § 63G-2-401(5)(b)(i). However, the Committee found that Deputy Director Haddon’s subsequent decision to affirm the records officer’s decision by a letter dated January 11, 2017, constituted a voluntary extension of the time period by Corrections as allowed by Utah Code § 63G-2-401(5)(c). Accordingly, the Committee denied the Motion to Dismiss finding that the Committee had jurisdiction to review Mr. Williams’ appeal because his appeal was filed with the Committee within 30 days of Deputy Director Haddon’s January 11, 2017, written decision. See, Utah Code § 63G-2-403(1)(a).

2. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records to which access is restricted pursuant to another state statute are not public records. Utah Code § 63G-2-201(3)(b). The disclosure of a record to which access is governed or limited pursuant to another state statute is governed by the specific provisions of that statute. Utah Code § 63G-2-201(6)(a). GRAMA applies to records described in Utah Code § 63G-2-201(6)(a) insofar as GRAMA is not inconsistent with the state statute. Utah Code § 63G-2-201(6)(b).

3. Final audit reports are normally public “but to the extent that a record is expressly exempt from disclosure…” Utah Code § 63G-2-301(3)(q). The Department of Corrections is required to have “an audit for compliance.” Utah Code § 64-13-25(2). The reports from this audit “shall be classified as confidential internal working papers and access is available at the discretion of the executive director or the governor, or upon court order.” Utah Code § 64-13-25(2)(c).

4. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that Corrections properly classified the requested records as non-public records pursuant to Utah Code § 64-13-25(2)(c). The records are classified as “confidential internal working papers” and may not be disclosed except through the discretion of the executive director of Corrections, the Governor, or a court order.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Reginald Williams, 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 27th day of March 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee