State Records Committee Appeal Decision 2023-04

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DANIEL HERRERA, Petitioner, v.

DEPARTMENT OF CORRECTIONS, Respondent,

DECISION AND ORDER

Case No. 23-04

By this appeal, Daniel Herrera (“Petitioner”), requests records allegedly held by the Department of Corrections (“Respondent”).

FACTS

Petitioner is currently an inmate at the Central Utah Correctional Facility. Pursuant to the Government Records Access and Management Act (“GRAMA”) he has recently made multiple requests to the Respondent for certain records. Those requests are summarized as follows:

1. April 21, 2022: Petitioner submitted a request for all lab tests results for certain medical tests he had performed on May 8, 2018 (“Lab Test Records”).

2. April 21, 2022: Petitioner submitted a request for (1) a certified record showing the diagnosis he received from APRN Jordan Thomas; and (2) a copy of the signed form granting authorization to Mr. Thomas to disclose the diagnosis to third parties (“Diagnostic Records”).

3. June 30, 2022: Petitioner submitted multiple requests as outlined:

a. “O-track notes regarding cell searches while housed at the Oq 3 Facility, May 21, 2018 – July 11, 2018.”
b. “O-track notes filed by case manager, John Hansen, regarding his involvement with illegal activity, (while housed in Oq3 Facility, section 3, cell #4, communication with me).”
c. “Communication records between the Utah Department of Corrections and Box Elder County Attorney’s Office, . . . regarding my unlawful imprisonment/illegal activity between May 8, 2018, - June 25, 2022.”
d. “O-track notes while I was housed in Wasatch Building, D-block, between October 2, 2019 – October 4, 2019 (OMR).”
e. “Letter addressed to me by property official, C. Trujillo, March 26, 2020.”
f. “Memorandums, copy of case code 76-5-205.5 and name of the individual sending me a message: “I [heart] you!” Dates March 21, 2019, December 30, 2019, December 1, 2020, December 3, 2021, December 6, 2021, and April 16, 2022. Contract Attorney’s Office, . . . issued these documents/letter to me.”
g. “Name of the Lone Peak Perimeter, Corrections Official, September 6, 2018 @ approx. 2:00pm – 3:30pm (Harassment).”
h. “A copy of medical request forms regarding my eyes, between May 21, 2018 – July 11, 2018. (While housed in Oq 3 Facility).”
i. “All records, name of all corrections officials, records of communication with outside government officials involved with illegal activity. Illegally installing laser surveillance cameras in my eyes while unconscious.”

(Collectively, these will be referred to as the “June 30th Requests.”)

In response, the Respondent replied accordingly:

1. One record was provided for the Lab Test Records request.

2. The Diagnostic Records request was denied due to the records being classified as “controlled” under Utah Code § 63G-2-304(1)-(3) and the Petitioner not satisfying the requirements of Section 63G-2-202(2) to warrant their release. Further, the Respondent stated that the consent form Petitioner requested is “not a valid form and nothing like that is used in our facilities.”

3. The June 30th Requests were generally denied due to Petitioner having already been allotted five GRAMA requests in the calendar year. Under Utah Code § 63G-2-201(10), a governmental entity is not obligated to provide a record in response to a GRAMA request when the request is submitted by an individual confined to a correctional facility and who has already made five record requests during the calendar year.

Petitioner appealed the merits of the appeals to the Respondent’s chief administrative officer (“CAO). The CAO upheld the Respondent’s determinations under the following reasons.

1. The Lab Test Records were produced and delivered. Any additional requests for the records were denied as a duplicate response.

2. The “controlled” classification of the Diagnostic Records was correct and there is no consent form in existence.

3. Due to Petitioner already making five GRAMA requests during the year, the June 30th Requests do not need to be provided under Section 201(10).

Petitioner appealed to the State Records Committee (“SRC”), arguing that the CAO’s decisions were in error. During the pendency of his appeal, the Respondent made certain efforts to resolve and satisfy Petitioner. Those efforts are as follows:

1. Lab Test Records: the Respondent provided the record again.

2. Diagnostic Records: the Respondent provided mental health notes made by APRN Jordan Thomas on December 16, 2020, as well as other notes made. The Respondent also provided two clinical services releases signed by Petitioner for the Utah State Office of Rehabilitation. The Respondent claims these releases are the only documents remotely comparable to the consent forms Petitioner described in his request.

3. June 30th Requests: The Respondent affirms its CAO’s decision, but because this appeal occurs in a new calendar year, as well as the fact that Petitioner is being released this month, the Respondent has provided Petitioner with 50+ records responsive to 7 of the requests. The Respondent maintains that, at this point, whatever outstanding records remain are either classified as “controlled” under the GRAMA or are not in its possession.

On January 19, 2023, the Committee held a hearing during which the parties were allowed to participate. At the hearing, Mr. Herrera stated that he is being released from the Utah State Prison next week and is requesting a continuance of this hearing so he can hire counsel. The committee voted unanimously to continue this hearing to the next available hearing date to allow the Petitioner to retain counsel. Mr. Herrera is to contact the Committee secretary to update his new address, email, and phone number.

STATEMENT OF REASONS

At the hearing, Petitioner requested that the matter be continued to a later date. Petitioner’s reasons for the request were that he would be released from his incarceration within a few weeks, and, upon his release, he would like the opportunity to meet with and retain legal representation for this matter. The Respondent was given the opportunity to respond and had no objection. Finding no good reason to deny Petitioner’s request, this Committee grants a continuance in this matter.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal 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 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 30 day of January 2023

BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee