Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2011-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

Jeffrey Gallup, Petitioner, vs.

Board of Pardons & Parole, Respondent.

Case No. 11-13

DECISION AND ORDER

Petitioner, Jeffrey Gallup appeals a denial from Respondent, Board of Pardons and Parole (Board)of his GRAMA request for records pertaining to Petitioner.

FACTS

On or about July 7, 2011, Petitioner submitted a request for documents regarding the following: (1) Any emails generated by and between the Utah Board of Pardons and Parole and Melanie Serassio regarding Petitioner, (2) Any emails sent or received by and between the Utah Board of Pardons and Parole and Michelle M. Young regarding Petitioner, and (3) Any and all correspondence, letters, reports, recommendations, and any and all information in the Board of Pardon’s and Parole’s possession regarding Petitioner. The Board denied Petitioner’s request indicating that the documents prepared as part of the Board’s deliberative process were not records pursuant to Utah Code § 63G-2-103(22)(b)(i) and (xi) and not subject to release to petitioner. The Board also indicated the email(s) which Petitioner requested did not exist and therefore could not be provided. Moreover, in response to other records involving correspondence, letters, reports, recommendations, and any and all information in the Board of Pardons and Parole’s possession regarding Jeffrey Gallup, the Board indicated those records were protected pursuant to Utah Code Ann. § 65G-2-305. Lastly, the Board indicated to Petitioner that all documents in his file, which could be disclosed to him, which were used in the Board’s process had already been made available to the Petitioner.

Petitioner continued to communicate with the Board, filing a petition for extraordinary relief in which he requests the disclosure of a “confidential letter (CL) he believed was in his file, making another GRAMA request on or about July 7, 2011 to the Board for the CL and again reiterating his prior request for emails. Board Hearing Officer, Jennifer Bartell, responded to Petitioner’s renewed request. Based on her review of petitioner’s file, she also determined the CL was protected and could not be disclosed to Petitioner.

On or about July 22, 2011, Petitioner sent a letter to Respondent appealing the Board’s denial of documents stating that the Board was non-responsive. Moreover, on or about July 25, 2011, Petitioner requested documents regarding all information in the possession of the Board, which is not specifically excluded as protected pursuant to §63G-2-305(13), relating to Jeffrey Gallup, including emails and a “confidential letter.”
On, or about, July 28, 2011, Board Chairman, Clark Harms responded and again denied Petitioner’s appeal, including the request for the “confidential letter” citing Labrum v. Utah Board of Pardons and Parole, and Utah Code Ann. §63G-2-101(1)(b) to indicate that the information was protected and private.

Petitioner now appeals to the State Records Committee (Committee). The Committee having reviewed the arguments submitted by the parties, and having convened on September 8, 2011 a hearing to hear oral argument and testimony, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies, “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. Pursuant to Utah Code Ann. § 63G-2-302(2)(d), 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.

3. Records created or maintained for civil, criminal, or administrative enforcement purposes are protected records, if release of the records reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source pursuant to Utah Code Ann § 63G-2-305(9).

4. Records, other than personnel evaluations, that contain a personal recommendation concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal privacy, or disclosure is not in the public interest are protected if properly classified by a governmental entity Utah Code Ann § 63G-2-305(25)

5. Pursuant to Utah Code Ann. §63G-2-103(22)(b)(xi):

(b) "Record" does not mean: a note or internal memorandum prepared as part of the deliberative process by:
(A) a member of the judiciary;
(B) an administrative law judge;
(C) a member of the Board of Pardons and Parole; or
(D) a member of any other body charged by law with performing a quasi-judicial function;

6. At the hearing, Petitioner argued that (1) the records requested were not protected pursuant to Utah Code Ann. §63G-2-305(9) because they did not pertain to an active investigation, nor was the Board of Pardons and Parole a civil enforcement body, (2) The requested records were not protected pursuant to Utah Code Ann. § 63G-2-305(10) because the petitioner is not incarcerated for a violent crime and is not a threat to anyone, (3) The records are not protected pursuant to Utah Code Ann. §63G-2-305(25) because disclosure is in the public interest, (4) Records are not private pursuant to Utah Code Ann. §63G-2-302(2)(d) because there is no expectation of privacy, and (5) the records are public pursuant to Utah Code Ann. 63G-2-201(3)(b).

7. Respondent contended that the “confidential letter” is private and protected pursuant to Utah Code Ann. §63G-2-305(10) because the disclosure of such information would jeopardize the life or safety of the author and at the very least, pursuant to Utah Code Ann § 63G-2-302(2)(d), would be an unwarranted invasion of the author’s personal privacy as evidenced by the author’s request to the Board beseeching them not to release the letter to the Petitioner and to return the letter and not use it if the Board could not comply with the request to remain anonymous.

8. Counsel for the Respondent also argued that the documents contained in “section 2’ of Petitioners Board file were memoranda used in the deliberative process of the Board and were “non-records” pursuant to Utah Code Ann. § 63G-2-103(22)(b)(xi)/

9. After hearing the arguments from the parties, the Committee reviewed the Petitioner’s file brought by the Board including the “confidential letter” in camera.

10. Based on its review of the file in camera, the arguments of the parties, and a preponderance of the evidence presented, the Committee is convinced and therefore finds, that the “confidential letter” was properly classified by the Board as private pursuant to Utah Code Ann. § 63G-2-302(2)(d) as a clearly unwarranted invasion of personal privacy and should not be released to the Petitioner.

11. The Committee further finds pursuant to Utah Code Ann. § 63G-2-103(22)(b)(xi), the materials prepared by members of the Board of Pardons and Parole for use in their deliberative process were properly classified as a non-record and should not be disclosed.

12. The Committee is convinced that there yet may be documents contained in Section 2 of the Petitioner’s Board file that are public and have not been disclosed to the Petitioner. The Committee believes the Board should re-examine Petitioner’s Board file and any public documents that have not heretofore been provided should be disclosed to the petitioner.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jeffery Gallup, is denied. However, the Board of Pardons and Parole is ORDERED TO re-examine Petitioner’s Board file for any previously undisclosed public documents and to provide such documents to the petitioner within (10) ten days of this Order.

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 petitioner 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 its decision de novo. In order to protect its rights to an appeal, a party may wish to seek advice from an attorney.

This notice is required by Utah Code Ann. § 63G-2-403(12)(d).

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the government 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 records Committee upon production of the records; or (2) a notice of intent to appeal. If the government 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 Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies entities.

Entered this 16th day of September, 2011

BY THE STATE RECORDS COMMITTEE

____________________________________
Betsy Ross, Chairperson
State Records Committee