State Records Committee Appeal Decision 2018-22

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JEREMY FLYGARE, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 18-22

By this appeal, Petitioner, Jeremy Flygare seeks access to records allegedly held by Respondent, the Utah Department of Corrections.

FACTS

On February 21, 2018, Petitioner made a records request to the Utah Department of Corrections ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested “[a]ll records referencing [his] involvement in SOTP and Resolve including reports, summaries, test results, interview notes, meeting minutes, e-mails, and [sic] statements concerning [him].”

Petitioner’s request was initially rejected by Respondent, based upon a finding that Petitioner was not indigent and that his request would not be processed without an attached Money Transfer as required by Utah Admin. Code R.251-111-4(2). In a letter dated March 12, 2018, Petitioner appealed the rejection to Respondent’s Deputy Director, Mike Haddon, claiming that “[f]ailure to release these records constitutes obstruction of justice.” However, Petitioner did include a Money Transfer Form in his appeal.

On or about March 23, 2018, Respondent provided 24 pages of responsive records constituting of 11 different records. Petitioner believed that he had not received all of the records responsive to his records request, so an appeal was filed with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on July 12, 2018, and carefully considering the requested relief of the parties, the Committee 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 and -204. Utah Code § 63G-2-201(1).

2. Notwithstanding any other provision in GRAMA, a governmental entity is not required to respond to, or provide a record in response to, a record request if the request is submitted by or in behalf of an individual who is confined in a jail or other correctional facility following the individual’s conviction. Utah Code § 63G-2-201(9)(a). Utah Code § 63G-2-201(9)(a) does not apply to: (1) The first five record requests submitted to the governmental entity during any calendar year requesting only a record that contains a specific reference to the individual; or (2) A record request that is submitted by an attorney of the incarcerated individual. Utah Code § 63G-2-201(9)(b).

3. Respondent argued that it was not required to provide more records to Petitioner because he “is an individual who is confined in a correctional facility following his conviction.” At the time of his records request, Petitioner was an inmate at the Utah State Prison. At the time of the Committee’s hearing, Petitioner was housed at the Bonneville Community Correctional Center. Accordingly, at both the time of his request and at the time of his appeal, Respondent argued that Petitioner qualified as an individual housed in a correctional facility.

4. Counsel for Respondent also argued that Petitioner’s records request should not be construed as a single records request, allowing Petitioner to circumvent the intention of five records requests limitation of Utah Code § 63G-2-201(9)(a) by “attempting to pack all of the records he desires onto a single request.” Counsel noted that Petitioner requested “a voluminous number of records, enough that [Petitioner’s] appeal to the Committee consists of six single-spaced pages, the majority of which is a list of the records [Petitioner] believes he should have received.”

5. Petitioner argued at his hearing that since he was at a nonsecure facility (the Bonneville Community Correctional Center), he should not be considered an “individual who is confined in a jail or other correctional facility” pursuant to Utah Code § 63G-2-201(9)(a).

6. Although “correctional facility” is not defined in GRAMA, it is defined elsewhere in the Utah Code. Utah Code § 64-13-1(3) defines “Correctional Facility” to mean “any facility operated to house offenders, either in a secure or nonsecure setting” by Respondent or under a contract with Respondent (emphasis added). Utah Code § 64-13-14.5(1)(c) states that Respondent was house as an inmate in a “nonsecure community correctional center” operated by Respondent under certain circumstances. Counsel for Respondent argued that the Bonneville Community Correctional Center was such a facility as describe in Utah Code 64-13-14.5(1)(c), but still would be considered a “correctional facility” under Utah Code §§ 63G-2-201(9)(a) and -64-13-1(3).

7. After having considered the written and oral arguments of the parties and having reviewed the applicable statutes within the Utah Code, the Committee finds that Petitioner is an inmate confined in a correctional facility following his conviction both at the time of his initial records request and at the time of his appeal before the Committee. Accordingly, the Committee finds that Respondent was not required to respond or provide a record to Petitioner pursuant to Utah Code § 63G-2-201(9)(a).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jeremy Flygare 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 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 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. Utah Code § 63G-2-403(15)(d)(i)(B). 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 23rd day of July 2018

BY THE STATE RECORDS COMMITTEE

__________________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee