State Records Committee Appeal Decision 2020-52

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

OZWALD BALFOUR, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 20-52

By this appeal, Petitioner, Ozwald Balfour, seeks access to records allegedly held by Respondent, Utah Department of Corrections.

FACTS

On or about April 6, 2020, Mr. Balfour made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Balfour requested “[e]ntries in [Respondent’s] Offender History Report...made after 04/21/2016 to present.”

On or about April 16, 2020, Respondent notified Mr. Balfour that his request was denied and asked that Mr. Balfour specify which records he needed stating that there were too many offender history reports. Mr. Balfour appealed the denial. Deputy Director James Hudspeth denied the appeal restating that Mr. Balfour would need to clarify what type of entries were being sought and provide further clarification.

Thereafter, Mr. Balfour filed an appeal with the State Records Committee (“Committee”). On October 8, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. During the hearing, counsel for Respondent suggested that the parties be given time to meet and determine if Mr. Balfour’s request could be made more specific. Accordingly, the Committee unanimously voted to continue the hearing to the next scheduled hearing date.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ozwald Balfour is hereby CONTINUED.

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 party’s 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 20 day of October 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee