State Records Committee Appeal Decision 2022-50

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

WENDY HALLORAN, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 22-50

By this appeal, Wendy Halloran (“Petitioner”), an investigative reporter with KUTV Channel 2 News, requests records allegedly held by Utah Department of Corrections (“Respondent”).

FACTS

This appeal concerns a request pursuant to the Government Records Access and Management Act (“GRAMA”) for records relating to a tragic accident that occurred on May 2, 2022. Because the facts of the accident are relevant to Petitioner’s request and the analysis the State Records Committee (“Committee”) must undertake to decide this appeal, we give a brief account of the incident.

On May 2, 2022, Kent Cody Barlow was operating a vehicle while allegedly under the influence of methamphetamine. Mr. Barlow was driving at a reckless rate of speed (over 100 miles per hour), lost control of the vehicle, and swerved into an adjacent corral where two young boys, both three-years old, were playing with toy trucks. Mr. Barlow was unharmed in the accident, but, horribly, the vehicle struck and killed the two toddlers. The facts surrounding the senseless accident are so tragic, the story grabbed both local and national headlines.[1]

On June 20, 2022, Petitioner filed with Respondent a GRAMA request for the “supervision history notes” and “offender history report” on Mr. Barlow as he was on parole at the time of accident. The request was limited to records relating to the time period of January 29, 2019 through the day immediately following Mr. Barlow’s arrest on May 2, 2022. Matt Anderson, the Director of Administrative Services for the Department, sent Petitioner a letter that included the requested supervision notes, but large portions of the record had been redacted. Mr. Anderson stated that the portions of the documents had been redacted on the bases that (1) disclosing the information would interfere with the control and supervision of an offender’s parole (Utah Code §63G-2-305(13)), (2) disclosure would reveal recommendations based on the individual’s supervision and treatment (Utah Code § 63G-2-305(14)), (3) the records contain medical and treatment data (Utah Code § 63G-2-302(1)(b)), and (4) that disclosing the data would constitute an unwarranted invasion of personal privacy (Utah Code § 63G-2-302(2)(d)).

On July 27, 2022, Petitioner submitted an appeal to James Hudspeth, Deputy Director for the Department and chief administrative officer for records requests, disputing the validity of the redactions. Mr. Hudspeth responded to the appeal on August 12, 2022, determining that some of the redacted information could be disclosed but the other redactions were proper. In accordance with his decision, the Department unredacted some of its initial redactions and delivered the documents to Petitioner.

Not satisfied with the decision, Petitioner filed this appeal with the Committee requesting our review of the remaining redacted information but narrowing her request to (1) the substance abuse treatment for Mr. Barlow (including the results of any drug tests), and (2) the supervision notes related to Mr. Barlow – specifically, information related to any parole violations and the related recommendations for what actions should be taken.

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 states 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, this right does not go unqualified. In relation to records concerning prison inmates – those on probation or parole – the GRAMA restricts records access if the disclosure would “interfere with the control and supervision of an offender’s . . . treatment, probation, or parole,” and when the records would “reveal recommendations made to the Board of Pardons and Parole by an employee or contractor . . . that are based on the employee’s or contractor’s supervision, diagnosis, or treatment” of the individual. Utah Code § 63G-2-305(13)-(14). Additionally, the GRAMA classifies records as “private” when the records contain medical data, and when their disclosure would constitute an unwarranted invasion of privacy. Utah Code §§ 63G-2-302(1)(b) & (2)(d). But despite these defenses to disclosure, the Committee may override those statutory protections and order the governmental entity to provide the requested records if the Committee finds that public interest favoring access is greater than or equal to the interest favoring restriction. Utah Code § 63G-2-403(11)(b). As Petitioner is a member of the media, Respondent does not challenge whether her request is for the public interest. See Utah Code § 63G-2-204(5). Therefore, we allow that presumption to stand. Our task then is to analyze whether (1) the disputed redactions in the responsive records are proper under the GRAMA, and (2) whether the public’s interest in obtaining the redacted information is greater than or equal to Respondent’s interest upholding the redactions.

At the hearing, and in accordance with its legal authority to examine disputed documents, the Committee voted to view the unredacted records in camera. See Utah Code § 63G-2-403(9)(a)(i)-(ii). The Committee found in its review that the redactions protected information relevant to Mr. Barlow’s parole supervision and treatment, his medical treatment, and information of third parties that, if revealed, could constitute an unwarranted invasion of privacy. Respondent was convincing during the hearing that if this type of information was readily accessible to the public and freely disclosed through any routine GRAMA request, it would deter inmates from cooperating with Respondent’s employees and its healthcare contractors. Such noncompliance would create hardship for those trying to glean important information from inmates and parolees, information that would assist them in making appropriate and correct determinations in their supervision. We agree with Respondent and sympathize with its concern. Therefore, after examining the disputed records in camera, we find that, on the outset, Respondent’s entire redactions were proper under “protected” and “private” classifications.

With our finding that the restrictions were appropriate under the GRAMA, we now turn to whether Petitioner has convinced us that the public interest outweighs the restrictions. Utah Code § 63G-2-403(11)(b) allows the Committee to weigh the various interests and order the release of the information properly restricted if we find that “the public interest favoring access is greater than or equal to the interest favoring restriction.” Id. As evidenced from the numerous media reports on the incident (two of which we mentioned above), it’s clear that the public holds a strong interest in Mr. Barlow’s tragic accident. Mr. Barlow was on parole at the time he struck and killed the two boys. As a parolee, he would be subject to certain conditions he had to live by in order to remain in the public space. Whether he had satisfied those conditions or not in the time leading up to the accident holds strong public interest because if he had violated his parole conditions, he would likely be returned to prison and the accident would not have happened. Whether any violations were properly addressed and managed also holds strong public interest because if violations occurred, the public deserves to know how those violations were handled and if they were handled appropriately. Additionally, aside from this case, if there was mishandling of Mr. Barlow’s parole supervision – and we make no opinion on that question – the public’s interest is paramount as such mishandling could indicate larger systemic problems with parole supervision.[2]

As representatives for different subsets of society,[3] this Committee weighed the competing interests at length. We respect Respondent’s need to hold certain information private in order to maintain compliance and cooperation from inmates; however, we also respect Society’s interests in knowing that parolees are properly managed upon their release and that the system is working as it should. And this is especially true when two three-year-old children are killed by a parolee who allegedly violated the terms of his parole. Because of the local and national attention this incident received, we believe that the public interest is quite significant. Therefore, in weighing the interests and considerations in favor of and against disclosing the requested records, the Committee finds, in this instance, that the public’s interest in certain information relating to Mr. Barlow outweighs those of Respondent’s. Thus, upon review of the documents, we determine that some redactions must be lifted.

ORDER

THEREFORE, after reviewing the responsive records in camera and weighing the interests for and against their disclosure, Petitioner’s request for access to the redacted records is GRANTED in part and DENIED in part. We hereby order the following:

1. Respondent shall un-redact paragraphs 1 thru 4 on page 3 with the exception to the name of the testing provider referenced in paragraphs 1 and 3, which may remain redacted.

2. Respondent shall un-redact all test dates and their results.

3. All currently redacted information not addressed in this Order may remain redacted.

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 29 day of November 2022

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee

1 See e.g., Driver who hit and killed two Utah children was high on meth, police say, Vivian Chow, Nexstar Media Wire, May 4, 2022 2:45pm EDT (https://www.wric.com/news/crime/driver-who-hit-and-killed-two-utah-children-was-high-on-meth-police-say/) retrieved November 21, 2022 at 1:59pm (Virginia); ‘High on Meth’ Driver Crashes Into Horse Stable, Killing Two 3-Year-Old Boys, Police Say, Aliison Quinn, Daily Beast (https://www.thedailybeast.com/high-on-meth-driver-crashes-into-horse-stable-killing-two-3-year-old-boys-police-say) retrieved November 21, 2022 at 2:00pm (New York)

2 We stress that we make no opinion or implication on what these records mean and what can be learned about Mr. Barlow’s supervision. We raise these considerations merely to show that the public’s interest in the records is understandably high.

3 Utah Code § 63G-2-501(1)(a)-(f).