Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2010-22

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SALT LAKE TRIBUNE, Petitioner, vs.

UTAH BOARD OF PARDONS AND PAROLE, Respondent.

DECISION AND ORDER

Case No. 10-22

By this appeal, Petitioner, the Salt Lake Tribune (“Tribune”), seeks a copy of letter written in 1988 by Inmate, Mark Hofmann and submitted to Respondent, the Utah Board of Pardons and Parole (“Board”).

FACTS

In January 1987, Mark Hofmann pled guilty to second degree murder for the deaths of Steven Christensen and Kathy Sheets in October 1985. On January 29, 1988, the Board held a hearing to consider whether Mr. Hofmann should be eligible for parole. Prior to the hearing, Mr. Hofmann wrote a letter to the Board. This letter has not been released to the public.

On September 23, 2010, Christopher Smart, a reporter with the Tribune, made a request to the Board pursuant to the Utah Government Records Access and Management Act (“GRAMA”) for a copy of the letter Mr. Hofmann wrote to the Board in 1988. An employee of the Board denied the request stating that the “letter is a private document [and] the only way to obtain a copy of the letter would be to [fill] out a release form and have it signed by Mark Hofmann and notarized.”

On September 28, 2010, the Tribune appealed the Board’s decision to deny its request for access to Mr. Hofmann’s letter. In a letter dated October 4, 2010, Clark A. Harms, Chairman of the Board, denied the Tribune’s appeal stating that the letter was classified as “protected.” The letter further stated that “correspondence from offenders to the Board often contains information regarding criminal activity, admissions to past crimes, may disclose other offender’s conduct or may provide the Board and Corrections with unknown information pertaining to victims.” The letter also noted that “Mr. Hofmann has requested that the Board not release letters from his file to the press.” Mr. Harms concluded that “[p]ursuant to Utah Code Annotated, 63G-2-305(10) and (12) release of a copy of the letter will jeopardize the life or safety of an individual, jeopardize the security or safety of a correctional facility and interfere with the control and supervision of an offender’s incarceration.”

In a letter dated October 12, 2010, Mr. Smart filed an appeal on behalf of the Tribune with the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on December 9, 2010, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63G-2-302, -303, -304 and –305.

2. Records the disclosure of which would jeopardize the life or safety of and individual are protected records if properly classified by the governmental entity pursuant to Utah Code Ann. § 63G-2-305(10).

3. Records the disclosure of which would jeopardize the security or safety of a correctional facility, or records relating to incarceration, treatment, probation, or parole, that would interfere with the control and supervision of an offender’s incarceration, treatment, probation, or parole are protected records if records if properly classified by the governmental entity pursuant to Utah Code Ann. § 63G-2-305(12).

4. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are “private” if properly classified by a governmental entity. Utah Code Ann. § 63G-2-302(2)(d).

5. At the hearing, counsel for the Board argued that Mr. Hofmann’s letter should not become a public record because release of the letter would: (1) adversely effect the Board’s ability to properly function and fulfill its statutory mandate to have “unfettered” communication; (2) put Mr. Hofmann’s safety in prison at risk; and (3) be a clearly unwarranted invasion of Mr. Hofmann’s personal privacy. The Board contended that if the letter was released after Mr. Hofmann specifically requested that the letter not be released, the Board’s ability to receive future communication from Mr. Hofmann and from other prisoners could be negatively impacted because these prisoners have an expectation of privacy for their communications with the Board.

6. Many of the arguments presented by the Board have been previously discussed and resolved by the Utah Supreme Court in Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26, 182 P.3d 372. A categorical classification of a record series as protected “does not endow a specific report with a presumption that it should be withheld if requested.” Deseret News, at ¶ 17. For example, sexual harassment investigative reports could contain information that constitutes a clearly unwarranted invasion of personal privacy or interfere with past and present investigation. Id. at ¶ 18.

7. However, when faced with a GRAMA request for a particular record, the governmental entity cannot deny access based solely on its advance categorical classification. Id. at ¶ 19. Instead, the governmental entity must “examine and evaluate the GRAMA status” of the record “in the context of the interests relevant to its content alone.” Id.

It would be incompatible with a governmental entity’s responsibilities under GRAMA to apply to a record request a review methodology which presumes that a requested record has been properly classified and then proceed to canvass GRAMA for statutory language that confirms its designation. Here, the County was required to conduct a conscientious and neutral evaluation of the report’s GRAMA status without regard to existing designations or classifications. This obligation continues throughout the appeal process. [Deseret News, ¶ 24]

8. After reviewing in camera Mr. Hofmann’s letter, the Committee is not convinced that anything within the contents of the letter would jeopardize the life or safety of Mr. Hofmann, put at risk the safety and security of the correctional facility, or constitute a clearly unwarranted invasion of personal privacy.

9. Concerning whether release of this letter will adversely impact future communication between the Board and prisoners, it should be noted that “a record may not be withheld merely because its contents invade personal privacy. Instead, the invasion must be clearly unwarranted.” Deseret News, at ¶ 33. Even though a prisoner may have an expectation of privacy when he or she requests privacy, classifications of records as “private” or “protected” should be based upon the statutory authority found in GRAMA and not upon the prisoner’s personal preference. Although the Board may have strong policy reasons to protect these types of communications with prisoners, GRAMA does not provide categorical protection for all communications between prisoners and the Board. Accordingly, it is not a clearly unwarranted invasion of personal privacy to release Mr. Hofmann’s letter because absent a specific statutory protection through GRAMA, a reasonable expectation of privacy also did not exist.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Christopher Smart/Salt Lake Tribune is upheld and the record requested shall be released to Petitioner.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the governmental entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental entity 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.

Dated this 16th day of December 2010.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee