State Records Committee Appeal Decision 2020-42

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LARRY AGEE, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 20-42

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

FACTS

On or about October 31, 2019, Mr. Agee, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Agee requested the “employee misconduct record” concerning a specific employee for Corrections from 2012 to 2019. Mr. Agee stated that the request was needed for “litigation purposes on a criminal complaint.” On November 25, 2019, Mr. Agee’s request was denied by a records officer for Corrections finding that the specified employee’s misconduct record should be considered a private record.

Mr. Agee filed an appeal to Corrections Deputy Director James Hudspeth. In the appeal, Mr. Agee referenced a specific Utah District Court case number, stating that his “legal rights are directly implicated in my request for these records.” On February 10, 2020, Mr. Hudspeth affirmed the denial stating that the records were properly classified as private records pursuant to Utah Code § 63G-2-302(2)(d). Mr. Hudspeth also stated that Mr. Agee was not entitled to the records because Mr. Agee was not referenced in the requested records.

In a letter dated March 7, 2020, Mr. Agee filed an appeal with the State Records Committee (“Committee”). On August 27, 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. However, the person making the records request needs to identify the requested record with “reasonable specificity” to allow the governmental entity to fulfill the records request. Utah Code § 63G-2-201(7)(b).

2. During the hearing, it was clarified that the purpose of Mr. Agee’s records request was to find records related to a specific incident involving Mr. Agee and the employee for whom Mr. Agee was requesting the records. It was also determined that the court case number referenced by Mr. Agee was an incorrect case number.

3. After having reviewed the evidence and the arguments by the parties, the Committee determined that Mr. Agee’s records request was not reasonably specific as required by Utah Code § 63G-2-201(7)(b). The Committee found that a more specific records request using the correct court case number would better allow Corrections to fulfill Mr. Agee’s records request.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Larry Agee 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 9 day of September 2020

BY THE STATE RECORDS COMMITTEE

PATRICIA SMITH-MANSFIELD
Chair, State Records Committee/