State Records Committee Appeal Decision 2022-48

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

AZLEN MARCHET, Petitioner, v.

UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.

DECISION AND ORDER

Case No. 22-48

By this appeal, Azlen Marchet (“Petitioner”), requests records allegedly held by Utah Department of Public Safety (“Respondent”).

FACTS

The undisputed facts are as follows. In 2007, Petitioner was charged with rape. He pleaded not guilty at trial but was ultimately convicted. Evidence pertinent to those charges was a rape kit that, evidently, was never tested until several years after the trial was over and Petitioner had been convicted. Petitioner believes the results of the rape kit are exculpatory to his conviction. Petitioner filed a request under the Government Records Access and Management Act (“GRAMA”) on April 24, 2022 with the Utah Bureau of Forensic Service seeking the results of the kit. In a response dated May 17, 2022, The Bureau denied the request claiming the records were protected under § 63G-2-305(10) and that in order to release the records, Petitioner needed a release as required under Utah Code § 63G-2-202(4)(b)(ii) which he did not have. The Bureau determined that because Petitioner did not meet the requirements of Utah Code § 63G-2-202(4), which outlines the permissible disclosure of protected records, the results of the kit would not be disclosed. Since the Bureau is a subagency of the Utah Department of Public Safety (“Department”), Petitioner appealed the denial to the chief administrative officer for the Department, Melanie Marlowe. Ms. Marlowe reviewed the appeal and the results of the kit at issue and determined that because the results contained no specific reference to Petitioner by name the record was protected under Utah Code § 63G-2-305(10) and Ms. Marlowe upheld the Bureau’s denial.

Ms. Marlowe also noted in her decision that because Petitioner is currently incarcerated, Utah Code § 63G-2-201(1)(a) does not require a governmental entity to respond to or provide records to a GRAMA request unless the requested record contains a specific reference to the individual. She informed Petitioner that the results of the kit do not contain a specific reference to him.

Petitioner now appeals to the State Records Committee (“Committee”) challenging Respondent’s denials. On November 17, 2022, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

The GRAMA maintains that a 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 . . . .” Utah Code § 63G-2-201(1)(a). However, access to a requested record is governed by statute, and certain statutes outside of the GRAMA may expressly restrict access. In the event access to a record is restricted under a statute outside of the GRAMA, then disclosure of the record is governed by the provisions of that statute. Utah Code § 63G-2-201(6)(a).

The records sought in this case contain DNA-related information and are currently held by the Department’s Bureau of Forensic Service (“Bureau”). Because of this, we must acknowledge that the requested records are governed by the Criminal Investigations and Technical Services Act (“CITSA”), which governs the Bureau and its records. Section 406(3)(a) of the CITSA prescribes, “In accordance with Section 63G-2-305, each DNA specimen and associated record is classified as protected.” Utah Code § 53-10-406(3)(a). Thus, as the records sought in this appeal contain DNA-related information and are governed by CITSA, we find that Respondent has properly classified the records as “protected” under the law.

When determining whether to disclose a record that is protected, Section 63G-2-202(4) states that if the requester is not the individual who submitted the record, then the requester must obtain a notarized release from all persons and governmental entities whose interests “were sought to be protected by the protected classification . . . .” Utah Code § 63G-2-202(4)(a)(b). Without such releases, a requester would need a court order. Utah Code § 63G-2-202(4)(c)(i). Here, we find that it was Sandy City that submitted the record to the Bureau, not Petitioner. Consequently, Petitioner needs to obtain a notarized release from Sandy City authorizing the Bureau to release the records to Petitioner. Without a proper release, Petitioner’s sole remedy would be an appeal of this order for judicial review pursuant to Utah Code § 63G-2-404 seeking a court’s order to release the records.

ORDER

THEREFORE, for the foregoing reasons, it is hereby ordered that Petitioner’s appeal 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 27th day of December, 2022.

BY THE STATE RECORDS COMMITTEE

_________________________________________
NANCY DEAN
Acting Chair, State Records Committee