State Records Committee Appeal Decision 2020-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PATRICK SULLIVAN, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 20-11

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

FACTS

The parties appeared before the Committee for a hearing on January 9, 2020. At the hearing, the Committee determined that the matter would need to be continued for an in camera review of the records. Sullivan v. Utah Dept. of Corr., State Records Case No. 20-02, (Jan. 21, 2020). After reviewing the records in camera, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“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. Drafts, unless otherwise classified as public, are protected records if they are properly classified by a governmental entity. Utah Code § 63G-2-305(22).

3. After considering the arguments of the parties, and reviewing the disputed records in camera, the Committee finds that: (1) Document #1 is not a draft pursuant to Utah Code § 63G-2-305(22), and therefore is subject to release pursuant to Utah Code § 63G-2- 201(2); and (2) Document #2 is a draft pursuant to Utah Code § 63G-2-305(22), and therefore is not subject to release.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is hereby 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 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 3rd day of March 2020.

BY THE STATE RECORDS COMMITTEE

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PATRICIA SMITH-MANSFIELD, Chair
State Records Committee