State Records Committee Appeal Decision 2020-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

TIFFANY GILMAN, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 20-01

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

FACTS

On July 5, 2019, Ms. Gilman made a request for “any records you could release for research” regarding Theodore “Ted” Bundy “regarding his time as an inmate at the Utah State Prison” pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Gilman stated that she was doing research for a book and was especially interested in any mug shots or photographs related to Mr. Bundy. Corrections’ Records Manager e-mailed Ms. Gilman on July 22, 2019 informing her that there were some photographs that could be released, but if “you are looking for anything else, I would need you to be more specific.” Ms. Gilman responded that she was greatly interested in the photos and “any incident reports related to his escape attempt/the contraband he had on him, or any other incidents.”
In a letter dated July 25, 2019, the Records Manager notified Ms. Gilman that any records related to Mr. Bundy’s escape attempt, contraband, or other incidents, are considered private records not subject to disclosure pursuant to Utah Code § 63G-2-302(2)(d). The letter also stated that any logbooks from correctional officers pertaining to Mr. Bundy were similarly considered private records.

In a letter dated July 29, 2019, Ms. Gilman filed an appeal with James Hudspeth, Deputy Director for Corrections. Ms. Gilman pointed out that Mr. Bundy was executed more than 30 years previously by the State of Florida on January 24, 1989, and that records regarding his 1976 escape attempt from the Utah State Prison did not implicate any privacy rights. Ms. Gilman added that if the privacy concerns were related to other living individuals named in the documents, she would accept redactions of information concerning those individuals. In a letter dated August 19, 2019, Chyleen Richey, Deputy Director for Corrections upheld the Records Manager’s denial, finding that “the records have been correctly classified.”

On September 10, 2019 Ms. Gilman filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 9, 2020, and carefully considering the requested relief of the parties, the Committee 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). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Records containing data on individual the disclosure of which “constitutes a clearly unwarranted invasion of personal privacy” are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).

3. Records that if disclosed would jeopardize the security or safety of a correctional facility, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(13).

4. Counsel for Corrections argued that the requested records should be classified as private pursuant to Utah Code § 63G-2-302(2)(d). Counsel stated that Mr. Bundy has living relatives whose privacy may be impacted by releasing the records. Counsel cited to the Committee’s Danysh v. Unified Police Dept., State Records Committee Case No. 12-09 (May 12, 2012) claiming that family members continue to have a privacy interest even after the death of an individual. Counsel also contended that the incident reports from Mr. Bundy’s attempted escape in 1976 “may give ideas to current or future inmates as to how they might undermine security at the Utah State Prison.”

5. Ms. Gilman argued that considering how public Mr. Bundy’s criminal history is and the nature of Corrections’ records, there is little chance that release of these records would be considered a “clearly unwarranted invasion of personal privacy” for Mr. Bundy or his family. Concerning disclosure of records concerning Mr. Bundy’s attempted escape in 1976, Ms. Gilman stated that security controls for the prison have most likely changed since 1976, which means release of these records probably would not “undermine the security” of the Utah State Prison.

6. After having reviewed all the evidence including written and oral arguments provided by the parties, the Committee finds that the requested records should be released to Ms. Gilman subject to possible redactions. The Committee is not convinced that release of these records would be a “clearly unwarranted invasion of personal privacy” pursuant to Utah Code § 63G-2-302(2)(d). The Ted Bundy case is arguably one of the most infamous criminal cases in United States history, with the events associated with the murders, his arrest, conviction, and execution taking place more than 30 years ago. Corrections presented no testimony concerning the wishes of Mr. Bundy’s family members regarding release of the subject records at this time, or why release of this information would be a “clearly unwarranted” invasion of their personal privacy.

7. The Committee distinguishes the present case from the Danysh case in that the photographs in Danysh showed the “unusually gruesome nature of the crime scene within the interior of Mrs. Gall’s home.” See, Danysh, ¶6. Further, the surviving family members in Danysh objected to the release of the photographs, which had never been released to the public or even to the surviving family members because of their unusually gruesome nature. However, the Committee does find Corrections’ arguments persuasive regarding the redaction of any information in the records concerning living persons such as prisoners or prison guards, and any information that if released would jeopardize the security or safety of the Utah State Prison pursuant to Utah Code § 63G-2-305(13).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Tiffany Gilman, is hereby GRANTED subject to redactions as outlined in this Decision and Order.

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 21st day of January 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee