State Records Committee Appeal Decision 2022-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PATRICK SULLIVAN, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 22-06

By this appeal Petitioner, Patrick Sullivan, is requesting records allegedly held by Respondent, Utah Department of Corrections ("Corrections"). The present appeal has been continued previously by the State Records Committee in Sullivan v. Utah Dept. of Corr., State Records Committee Case No. 20-29 (July 21, 2020) and Sullivan v. Utah Dept. of Corr., State Records Committee Case No., 20-34 (Aug. 24, 2020). 

FACTS

On or about January 12, 2020, Mr. Sullivan submitted three requests for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan stated that he was writing an article for the Utah Prisoner Advocate Network newsletter and that the records were needed for his article. Mr. Sullivan requested a fee waiver and expedited access to initial contact reports, media statements, statistics, correspondence, and surveillance footage related to the elimination of the A/B schedule. Each of the three records requests included multiple sub-requests.

On January 23, 2020, Correction’s GRAMA Coordinator denied Mr. Sullivan’s request for an expedited request. On January 28, 2020, the GRAMA coordinator stated that an extension of time to respond was needed because Corrections was presently processing a large number of records requests which is an extraordinary circumstance. In a letter dated February 6, 2020, the GRAMA coordinator denied Mr. Sullivan’s second records request, finding that it was not reasonably specific. In a letter dated February 19, 2020, the GRAMA coordinator found that the estimated costs for providing the responsive public records in Mr. Sullivan’s first records request would be approximately $3,220.00. In another letter dated February 19, 2020, the GRAMA coordinator found that Mr. Sullivan’s third request for records should be denied because the records were protected pursuant to Utah Code § 63G-2-305(10), (11) & (13), and the request was not reasonably specific.

On March 10, 2020, Mr. Sullivan sent three e-mails to the Deputy Director for Corrections appealing the decisions of the GRAMA coordinator. In three letters dated March 24, 2020, James Hudspeth, Deputy Director for Corrections, generally upheld the GRAMA coordinator’s decisions regarding Mr. Sullivan’s three records requests.

In a document dated April 20, 2020, Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). On February 17, 2022, the Committee held a public hearing during which both parties were allowed to present evidence and arguments to the Committee. Mr. Sullivan did not appear at the hearing, but after carefully considering the written and oral arguments provided by both parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. In his appeal to the Committee, Mr. Sullivan presents four issues: (1) He was entitled to an expedited response from Corrections; (2) Corrections improperly denied his request for a fee waiver; (3) Corrections improperly found that his records request was not reasonably specific; and (4) The requested surveillance video should be released because the public interest outweighs nondisclosure.

2. A governmental entity shall provide records to a requester no later than five business days after receiving a written request for an expedited request for access to record, if the requester demonstrates that the request benefits the public rather than the person. Utah Code § 63G-2-204(4)(a). A governmental entity may delay approval or denial of a request for an expedited response if the governmental entity determines that due to extraordinary circumstances, it cannot respond within the five business day time limit. Utah Code § 63G-2-204(6). Extraordinary circumstances include “the governmental entity is currently processing a large number of records requests.” Utah Code § 63G-2-204(6)(d).

3. Corrections argued that Mr. Sullivan failed to sufficiently show that his request would primarily benefit the public. Additionally, Corrections stated in its January 28, 2020 response that extraordinary circumstances did not allow an expedited response due to Corrections processing a large number of records requests. The Committee finds Corrections’ arguments persuasive and upholds its decision to deny Mr. Sullivan’s request for an expedited response.

4. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). 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).

5. The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. 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).

6. Corrections argued that Mr. Sullivan failed to show that he was entitled to receive a fee waiver for the records, stating that he “failed to make even a minimal showing that his request would benefit the public rather than himself.” After having carefully considered the evidence, the Committee finds that the decision by Corrections to deny Mr. Sullivan’s request for a fee waiver was not an unreasonable denial of a fee waiver.

7. A person making a request for a record shall submit to the governmental entity that retains the record, a written request that describes and identifies the record “with reasonable specificity.” Utah Code § 63G-2-204(1)(a)(ii). A review of the records requests show that Corrections properly classified the records or that Mr. Sullivan’s records requests were not reasonably specific.

8. Records of a governmental entity regarding security measures designed for the protection of persons or property, public or private, are not subject to GRAMA. Utah Code § 63G-2-106. These records include building and public works designs, to the extent that the records or information relate to the ongoing security measures of a public entity. Utah Code § 63G-2-106(5).

9. Mr. Sullivan requested access to surveillance footage at the Utah Prisons in Draper or Gunnison on specific dates. The Committee finds that surveillance footage at a prison facility are records relating to ongoing security measures, and therefore, are records not subject to GRAMA pursuant to Utah Code § 63G-2-106(5). Accordingly, the Committee upholds Correction’s decision to deny Mr. Sullivan access to these records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is 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 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 28th day of February 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee