Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2012-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

GORDON THOMAS, Petitioner, vs.

UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.

DECISION AND ORDER

Case No. 12-14

By this appeal, Petitioner, Gordon Thomas, seeks to appeal the denial of his records request for records associated with his criminal history.

FACTS

On or about December 12, 2011, Mr. Thomas made a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to the Utah Department of Public Safety, Bureau of Criminal Identification (“BCI”). BCI denied his request on December 14, 2011 indicating that his request was deficient because Mr. Thomas failed to provide fingerprints and pay the required $15.00 fee and, therefore, failed to comply with Utah Administrative Code R722-900-3.

On or about January 9, 2012, Mr. Thomas appealed BCI’s denial of his request for his criminal history to the Commissioner of PDS, Lance Davenport. Mr. Thomas indicated he was not able to provide fingerprints and the fee because he was incarcerated and, accordingly, lacked the means to comply with the rule. Commissioner Davenport sustained BCI’s previous denial of Mr. Thomas’ records request on January 17, 2012 re-affirming the finding that Mr. Thomas failed to comply with the requirements necessary to obtain his criminal history.

Mr. Thomas now appeals this denial to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on April12, 2012, 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 § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Records to which access is restricted pursuant to court rule, another state statute, federal statute are not public. See Utah Code § 63G-2-201(3)(d).

3. At the hearing, counsel for BCI argued that access to “criminal history” records is controlled by Utah Code § 53-10-108 Utah Admin. R., R722-900-3. And that Mr. Thomas failed to comply with the requirements found in this statute and accompanying rule. Counsel further argued that pursuant to Utah Code § 63G-2-201 the records are not public because access is controlled by another state statute.

4. Mr. Thomas argued that he should be allowed access to his criminal history without meeting the requirements of Utah Code § 53-10-108 or Utah Admin. R., R722-900-3 because he lacks the means to comply with the statutes due to his incarceration at the Utah State Prison.

5. After hearing the arguments of the parties, and having reviewed their submissions, the Committee is convinced and therefore finds that access to the records requested by petitioner is restricted pursuant to another state statute, specifically Utah Code § 53-10-108 and is therefore not public pursuant to Utah Code § 63G-2-201(3)(d).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Gordon Thomas is hereby denied.

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 § 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 § 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 the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.

Entered this 20th day of April, 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee