State Records Committee Appeal Decision 2019-19

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL BACON, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 19-19

By this appeal, Petitioner, Michael Bacon, seeks access to records allegedly held by Respondent, Utah Department of Corrections.

FACTS

On or about February 8, 2019, Mr. Bacon made a records request to Utah Department of Corrections (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Bacon requested the “policy that governs that allows inmates to send out urine analysis to an outside independent lab to be re-tested.”

On the same day, Respondent denied the request indicating that a copy of the department policy regarding urine analysis “is available for prisoners” in the Inmate Reference Library. Mr. Bacon appealed the denial on or about February 14, 2019. Respondent’s Chief Administrative Officer upheld the denial in a letter dated March 21, 2019 noting that the requested policy “is an AP&P policy that does not apply to inmates” and that the “records do not reference you specifically”.

Mr. Bacon then made an additional records request on or about February 11, 2019 for the “policy on recalibration after each use & maintenance records of urine analysis machine dates of each calibration done between Nov. 1st 2018 to Feb 1st 2019.” On the same day, Mr. Bacon’s request was denied because the request was “not directly related to” Mr. Bacon nor was Mr. Bacon named specifically. While the request was denied, Respondent did inform Mr. Bacon that the machine is calibrated daily. Mr. Bacon appealed the denial on or about February 14, 2019, and the denial was upheld by Respondent’s Chief Administrative Officer in a letter dated March 21, 2019.

Thereafter, Mr. Bacon 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 July 11, 2019, 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). However, 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 with the exception of the first five record requests submitted to the governmental entity by or on behalf of an individual who is confined in a jail or other correctional facility during any calendar year requesting only a record that contains a specific reference to the individual. Utah Code §63G-2-201(10).

2. During the hearing, Respondent argued that the policy that Mr. Bacon is requesting does not reference him specifically; however, the records referencing Mr. Bacon specifically were made available to him. Respondent also informed the Committee that the policy that Mr. Bacon is requesting do not exist for an incarcerated inmate.

3. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the record does not contain a specific reference to Mr. Bacon.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Bacon, 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 22nd day of July 2019.

BY THE STATE RECORDS COMMITTEE

__________________________________________
TOM HARALDSEN, Chair
State Records Committee