State Records Committee Appeal Decision 2017-20

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PATRICK SULLIVAN, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 17-20

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

FACTS

On a form dated February 2, 2017, and received by Corrections on March 3, 2017, Mr. Sullivan requested records from Corrections pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested a fee waiver for the records claiming that release of the records “primarily benefits the public rather than a person.” In a letter dated March 13, 2017, a records officer for Corrections informed Mr. Sullivan that his request was being rejected because Mr. Sullivan was not indigent but added that his request would be reconsidered if it was resubmitted with a money order. Mr. Sullivan appealed the decision to Corrections’ Deputy Director, Mike Haddon who, in a letter dated March 23, 2017, affirmed the decision of the records officer. Mr. Haddon found that pursuant to Utah Code § 63G-2-203(8)(a), Corrections was not required to fulfill the records request because Mr. Sullivan still owed Corrections $370.00 from a previous records request.

Mr. Sullivan made a second records request to Corrections pursuant to GRAMA on March 6, 2017. Mr. Sullivan requested the names of individuals involved in a decision made by Corrections regarding Mr. Sullivan. In a letter dated March 17, 2017, a records officer for Corrections denied Mr. Sullivan’s request stating that in order to fulfill the request, Corrections “would have to create a record.” After an appeal was filed by Mr. Sullivan on April 4, 2017, Mr. Haddon affirmed the decision of the records officer stating that a “search was made and no additional records regarding this matter were located.”

Mr. Sullivan filed an appeal with the State Records Committee (“Committee”) regarding Corrections’ denial of his request for a fee waiver on April 19, 2017. Mr. Sullivan filed another appeal with the Committee regarding Corrections’ denial of his request for records disclosing the names of certain individuals on April 24, 2017. For the convenience of the parties, the Committee combined both appeals and on June 8, 2017, the Committee held a hearing where the parties were allowed to present their oral arguments. After considering all arguments by the parties and reviewing the all written materials, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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 Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). However, a governmental entity may require payment of past fees and future estimated fees before beginning to process a request if the requester has not paid fees from previous requests. Utah Code § 63G-2-203(8)(a)(ii).

2. In the present case, Corrections did not process Mr. Sullivan’s request because he still owed $370.00 from a previous records request. Based on Mr. Sullivan’s failure to pay the fees from the previous request, the Committee finds that pursuant to Utah Code § 63G-2-203(8)(a)(ii), Corrections was not required to process Mr. Sullivan’s request prior to payment of outstanding fees. Accordingly, Corrections’ decision to deny Mr. Sullivan’s request for a fee waiver was not an unreasonable denial.

3. Regarding Corrections’ denial of his second request for records, counsel for Corrections stated during the hearing that records have since been found that are responsive to Mr. Sullivan’s request. Corrections found two documents: (1) A medical organization chart that identifies Corrections’ physicians and physician assistants; and (2) Meeting Minutes from Corrections’ Utilization Clearance Committee. Counsel for Corrections agreed that these documents may be released to Mr. Sullivan subject to redaction of non-public information.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, 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 a parties’ 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 governmental 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 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 19th day of June 2017.

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee