State Records Committee Appeal Decision 2020-28

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CHARLES BASCOMB, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 20-28

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

FACTS

On or about January 27, 2020, Daniel J. McDonald, legal counsel for Mr. Bascomb, made a request for records on behalf of Mr. Bascomb pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. McDonald requested documents related to Mr. Bascomb’s incarceration in the Draper and Gunnison corrections facilities. In a letter dated February 19, 2020, the GRAMA coordinator for Respondent provided records to Mr. McDonald, but also denied access to other records because they were classified as non-public records.

An appeal was filed with James Hudspeth, Deputy Director for Respondent. Respondent alleges that a response letter was sent to Mr. McDonald, but prior to the letter being received, an appeal was filed with the State Records Committee (“Committee”) on April 21, 2020. On July 9, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After 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. A record is a controlled record if: (1) The record contains medical, psychiatric, or psychological data about an individual; (2) Releasing the information in the record to the subject of the record would be detrimental to the subject’s mental health or to the safety of any individual; and (3) The governmental entity has properly classified the record. Utah Code § 63G-2-304.

3. Records the disclosure of which would jeopardize the life or safety of an individual, or records if disclosed would jeopardize the security or safety of a correctional facility, are protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(11) & (13).

4. Counsel for Respondent argued that the remaining records that have not been released to Mr. McDonald involve Mr. Bascomb’s mental health records, and that release of the records may endanger either Mr. Bascomb or other individuals. Counsel also argued that release of photographs from incident reports, investigative records, or housing information from the correctional facility, would jeopardize the life or safety of individuals, or jeopardize the security or safety of the correctional facility.

5. After having considered the arguments of the parties, the Committee finds that Respondent properly classified the remaining responsive records as non-public records pursuant to Utah Code §§ 63G-2-304 and -305(11) & (13). The Committee is persuaded by Respondent’s arguments that release of the records would jeopardize the health and safety of individuals requiring that the records remain non-public and not be disclosed to Mr. Bascomb. See also, Fruhwirth v. Utah Dept. of Corrections, State Records Committee Order No. 11-02 (Jan. 20, 2011).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Charles Bascomb, 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. 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 July 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD,
Chair, State Records Committee