State Records Committee Appeal Decision 2020-17

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PATRICK SULLIVAN, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 20-17

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

FACTS

On or about November 5, 2019, Mr. Sullivan submitted two records requests pursuant to the Government Records Access and Management Act (“GRAMA”) to the Utah Department of Corrections (“Corrections”). Mr. Sullivan requested records relating to emails sent and received by certain Correctional Facility employees during a specified time frame. The second request was for copies of various records related to Mr. Sullivan, such as his offender history, c-notes, incident reports, etc. Mr. Sullivan also requested a fee waiver for his records requests, in that he was the subject of the records and impecunious. Utah Code § 63G-2-203(4)(b) and (c).

After Corrections failed to respond to Mr. Sullivan’s requests within 10 business days, Mr. Sullivan treated this as a denial and filed an appeal to Corrections’ Chief Administrative Officer. Mr. Sullivan’s request for a fee waiver was denied based upon Mr. Sullivan’s failure to prove that he was impecunious.

Thereafter, Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on April 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. 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). Utah Code § 63G-2-203(1) provides that a governmental entity “may charge a reasonable fee to cover the governmental entity’s cost of providing a record.”

2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Utah Code § 63G-2-202(1) or -202(2); or (3) The requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).

3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).

4. Legal Counsel for Corrections argued that Mr. Sullivan should not receive a fee waiver because Mr. Sullivan is not impecunious. Counsel also noted that Corrections had already provided Mr. Sullivan 300 pages of records free of charge in 2019, which is well above the 100 pages allotted pursuant to Corrections’ policy.

5. After having reviewed the evidence presented and the written and oral arguments of the parties, the Committee finds that Corrections’ denial of Mr. Sullivan’s request for a fee waiver was an unreasonable denial. The Committee noted that Corrections has a history of not addressing fee waiver standards other than the “impecuniosity” status of an individual. In the present case, Corrections failed to address that Mr. Sullivan was the subject of the records request as detailed in Utah Code § 63G-2-203(4)(b).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is hereby GRANTED.

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 20th day of April 2020.

BY THE STATE RECORDS COMMITTEE

__________________________________________
KENNETH WILLIAMS, Chair Pro Tem
State Records Committee