State Records Committee Appeal Decision 2018-57

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PATRICK SULLIVAN, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 18-57

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

FACTS

On or about August 12, 2018, Mr. Sullivan made a records request to the Utah Department of Corrections ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested, “[a]ll incident reports, initial contact reports, IR-1, IR-2, etc. from 6-1-18 to present, up to $8.00 worth.”

On or about August 22, 2018, Respondent granted a portion of the request, providing 3 pages of records. Records classified as protected drafts were not provided at that time. Mr. Sullivan appealed the response stating that he was told that there was another record available regarding Introduction of Contraband.

On or about September 6, 2018, Respondent received three additional GRAMA requests, all enclosed in one envelope, from Mr. Sullivan. Two of these requests were denied because Mr. Sullivan had already received records in response to four GRAMA requests during the year.

On September 7, 2018, the Deputy Director responded to Mr. Sullivan indicating that two other incident reports were finalized after the initial request. Both records were provided to Mr. Sullivan at no charge. Mr. Sullivan filed a second appeal objecting to redactions that were made and indicating that additional records should be provided.

On or about September 19, 2018, Mr. Sullivan appealed the decision to limit him to five GRAMA requests per year, arguing Respondent abused its discretion.

On or about October 15, 2018, the Deputy Director stated that the redactions were no longer necessary and revised the records that were provided. The Deputy Director denied the remainder of the appeal, and also noted that Mr. Sullivan had received additional records under GRAMA which brought his total number of requests to five for the calendar year.

Thereafter, Mr. Sullivan 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 December 13, 2018 now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies “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.”

2. “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). However, this restriction does not apply to: (1) The first five record requests submitted to the governmental entity by or in behalf of an individual described in -201(9)(a) during any calendar year; or (2) A record request that is submitted by an attorney of an individual described in -201(9)(a). Utah Code § 63G-2-201(9)(b).

3. Counsel for Respondent argued that pursuant to Utah Code § 63G-2-201(9), a governmental entity is not required to respond to an inmate’s request after an inmate submits five requests in a calendar year. Respondent further argued that this matter was a policy argument but noted that Respondent still responds to every request that is received.

4. After having reviewed the written arguments of the parties and considering all evidence presented at the hearing, the Committee finds that Respondent was not required to respond to Mr. Sullivan’s records request based upon the plain language of Utah Code § 63G-2-201(9). The Committee is persuaded that: (1) Mr. Sullivan is currently confined in a jail or other correctional facility; and (2) Mr. Sullivan has made at least five records requests of which he is the individual described in -201(9)(a) within the calendar year. Accordingly, the Committee upholds Respondent’s decision to not respond to Mr. Sullivan’s records requests and not provide records responsive to Mr. Sullivan’s requests. Additionally, the Committee also finds that a Respondent shall “treat a request for multiple records as separate record requests and respond sequentially to each request”. Utah Code § 63G-2-204(6)(c). Further, the weighing provision found in Utah Code § 63G-2-403(9) does not apply in the present case because a governmental entity is not required to respond to a records request if the conditions outlined within Utah Code § 63G-2-201(9) have been satisfied.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, 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 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 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 December 2018.

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee