State Records Committee Appeal Decision 2023-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARLON SMITH, Petitioner, vs

DEPARTMENT OF PUBLIC SAFETY (DPS), Respondent,

DECISION AND ORDER

Case No. 23-16

By this appeal, Petitioner, Marlon Smith, requests records allegedly held by Department of Public Safety (“DPS”).

FACTS

Stemming from a recent conviction, Petitioner is currently confined in a correctional facility. On July 19, 2022, and again on August 18, 2022, he submitted a total of three records requests to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). In sum, the requests were as follows:

July 19, 2022
(1) The incident reports from Officers Morgan, Garrick, Brinkerhoff, and Shelby who are all officers that assisted in the incident on January 1, 2016, involving Petitioner’s arrest and Sally Port car search. Petitioner also requested all other reports relating to the incident by Utah DPS, task force, and others;
(2) Video recording from all officers’ dash and body cameras, as well as photos and surveillance cameras from all devices and surveillance videos inside Sally Port;
(3) Statements and reports from all agencies involved in the January 1, 2016, incident involving Petitioner and/or Marlon Alonzo Smith; and
(4) Requesting officer Thayne G. Carlisle’s incident report.

August 18, 2022 – Request 1
(1) Records (transcript, email, computer message) of Trooper Jared Withers’s outgoing communication request to dispatch on January 1, 2016, requesting a license and warrant check on Petitioner;
(2) Record of dispatch response (transcript, email, computer message) to Trooper Jared Withers on the license and warrant check, as well as the results of both checks effective January 1, 2016; and
(3) Reports created in case 131600001 by Agent Jason Haywood (State Bureau of Investigations) and Deputy Dave Larsen (Sevier County Sheriff).

August 18, 2022 – Request 2
(1) Utah Highway Patrol/DPS Policy and criteria for vehicle inventory search, effective January 1, 2016;
(2) Record of the policy and procedure UHP/DPS follows for vehicle towing when the driver is arrested, effective January 1, 2016; and
(3) Record of the policy and procedure UHP/DPS officers follow for traffic stop violation and issuing citations effective January 1, 2016.

In a response dated August 30, 2022, the Respondent, denied the Petitioners’ requests on the grounds that Utah Code § 63-2-201(10)(a) does not require the Respondent to respond to a GRAMA request from an individual confined to a correctional facility when the individual has already submitted five GRAMA requests in the calendar year.

Mr. Smith appealed the denial to the Respondent’s chief administrative officer on September 25, 2022. After reviewing the initial requests, the CAO determined that the requests duplicated prior government record requests from Petitioner which were responded to on June 29, 2021, December 30, 2021, August 5, 2022, August 29, 2022, and August 30, 2022. Because of this, the CAO stated there was no obligation to respond to the request under Utah Code § 63G-2-201(8)(a). Additionally, the CAO also noted that Petitioner was confined to a correctional facility and had already submitted five GRAMA requests within the calendar year. For these reasons, the appeal was denied.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On April 20, 2023, 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.

ISSUES FOR REVIEW

The Committee is asked to determine whether the Respondent must respond to and disclose the responsive records Petitioner requested.

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, a governmental entity is not required to respond to a record request if the requester is currently incarcerated in a correctional facility, has already submitted five record requests to the governmental entity during the calendar year, and those requests contain a specific reference to the individual. Utah Code § 63G-2-201(10)(a)-(b)(i).

In this matter, Petitioner is confined in a federal correctional facility. During the course of 2022, Petitioner submitted records requests on the following dates: June 9th, July 19th, July 23rd, August 18th, and September 25th.. The July 19th and August 18th requests are the ones at issue here. Although there were only four total record request submissions leading up to and including the August 18th request, the July 23rd submission contained four distinct requests for the following records:

1. Records created by a responding officer “using Desert Snow electronic networking system entitled ‘Black Asphalt’ on January 1, 2016”;
2. The record of the officer who initiated the “BOLO notice” on Petitioner’s vehicle;
3. Records of “all BOLO’s for 12-31-2015 to 1-01-2016”; and
4. Records of “the Black Asphalt BOLO report of Petitioner’s vehicle.”

The inherent question we must answer to decide the issue is whether the July 23rd request is a single record request under the law or four distinct requests packaged in one delivery. If it is the former, then the evidence shows that Petitioner had not submitted five record requests leading up to his August 18 submission. However, if the July 23rd request is four separate requests, then, since that request was responded to in full prior to the ones at issue, Petitioner will have met a total of five requests within the 2022 calendar year and the Respondent is not obligated to those before us.

As Petitioner is currently confined in a correctional facility, Subsection 63G-2-201(10) clearly applies to him and his GRAMA requests. In applying the statute to this matter, we find its language clear: The Respondent is obligated to respond to only five of Petitioner’s record requests that specifically reference him per calendar year. As the statute is silent on whether those five requests must be answered in order, we hold no position on the propriety of the Respondent answering the July 23rd request prior to the July 19th request at issue here. As far as we are concerned, the Respondent has fulfilled its legal obligation under the law by filling five of the GRAMA requests Petitioner submitted in 2022. Consequently, the law grants the Respondent the discretion on whether to respond to the requests that are the subject of this appeal. Additionally, as Subsection 63G-2-403(11)(b) allows the Committee to weigh the interests favoring the records’ disclosure against those favoring restriction, we’ve seen no compelling evidence or reason convincing us that the interests favoring disclosure outweigh the discretion afforded to the Respondent by statute. Therefore, we leave the Respondent’s decision undisturbed.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby 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 1st day of May 2023

BY THE STATE RECORDS COMMITTEE

Nancy Dean
Chair pro tem, State Records Committee