State Records Committee Appeal Decision 2023-30

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CARL FLEMING, Petitioner, vs

UTAH DEPARTMENT OF CORRECTIONS, Respondent,

DECISION AND ORDER

Case No. 23-30

By this appeal Carl Fleming, an inmate currently confined in the Utah State Prison, (“Petitioner”), requests records allegedly held by Utah Department of Corrections (“UDC”) (“Respondent”).

FACTS

On November 4, 2022, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested the “inmate log for SMU suicide watch cells,” including “how many inmates were placed in cell #3” from August 27, 2022 through September 14, 2022. UDC denied the request because the information contained in the records was classified as “private” under Utah Code §63G-2-302(2)(d). UDC explained to Mr. Fleming that “these logs are private to the prisoners who were in those cells, a requested record must be specific to you and name you in that record.” With regards to how many inmates were placed in cell #3, that request was denied because this request was not a records request, it was “just a number that was being sought.”

Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”) on December 17, 2022. In a letter dated January 26, 2023, CAO, James Hudspeth, upheld the denial for the reasons above and added:

(1) Utah Code §63G-2-201(8) states in response to a records request, “a governmental entity is not required to create a record; compile, format, manipulate, package, summarize, or tailor information.” Because the information requested is not contained in a centralized record, UDC would be required to create a record to respond to the request.

(2) The records requested are classified as “protected” under Utah Code §63G-2-305(11) & (13) because they contain information that would jeopardize the life and safety of an individual or the security or safety of the correctional facility.

(3) Per Utah Code §63G-2-201(10), UDC is not required to respond to or provide a record to an inmate if the requested records do not contain a specific reference to the inmate.

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

Whether the inmate log is properly classified and should be disclosed to Petitioner in light of him currently being confined to a correctional facility.

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 record that is private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and 63G-2-201(5). But even if a record is public and may normally be disclosed, a governmental entity is not required to respond to or provide a record if the requester is an individual confined in jail or correctional facility, except for the first five record requests submitted in a calendar year for a record that contains a specific reference to the requester. Utah Code § 63G-2-201(9).

At the hearing, the Respondent testified that it had some confusion about which exact records were requested since it doesn’t keep or maintain an “inmate log.” Through the Committee’s questioning of Petitioner, it became settled that he wanted what the Respondent labels an “infirmary log” – a record of all the prisoners who were confined to the specific cell that Petitioner identified. Additionally, Petitioner stated in the hearing that he seeks “footage of the cell” to show that the cell he is confined in is highly unsanitary; he also seeks a response to the grievance he submitted about the unsanitary conditions of the cell; as well as any cleaning records for the cell.

With that clarity, the Respondent testified that the infirmary log in whole could not be disclosed because the log contains information about other individuals that is not only private but can jeopardize the safety of those individuals if the information was released. Such records are classified as private under Utah Code § 63G-2-302(2)(d) and protected under Utah Code §§ 63G-2-305(11) and (13). However, during its testimony, the Respondent acknowledged that within the infirmary log, there is a responsive record referencing Petitioner that could be disclosed with some redactions.

Utah Code § 63G-2-302(2)(d) classifies as private records containing data on individuals which, if disclosed, would constitute “a clearly unwarranted invasion of privacy.” Id. Additionally, Subsections 305(11) and (13) deem a record protected if the disclosure would jeopardize “the life or safety of an individual” or “would interfere with the control and supervision of an offender’s incarceration, treatment, probation, or parole.” Utah Code §§ 63G-2-302(2)(d); 63G-2-305(11); 63G-2-305(13). At the hearing, the Respondent conceded that Petitioner had not yet filed five record requests this calendar year. Therefore, given that there is a record referencing Petitioner within the infirmary log, we find that Petitioner should be allowed that specific record. However, we also acknowledge that the record may contain information that does not reference Petitioner as the Code requires or is otherwise protected or private. For that information, we permit the Respondent to redact such information. See Utah Code § 63G-2-308 (allowing the governmental entity to allow access to information in the record the requester is entitled to inspect and also deny access to information that is exempt from disclosure).

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED in part and DENIED in part. The Respondent is ordered to make available any records in the infirmary log that specifically reference Petitioner. The Respondent may restrict access to and redact private and protected information about other individuals as Sections 302 and 305 so require.

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 1 day of August 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee