Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2012-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROSS GEORGE, Petitioner, vs.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 12-15

By this appeal, Petitioner, Ross George, appeals the denial of his records request to the Utah Department of Corrections (“Department”).

FACTS

On or about April 16, 2012, Mr. George made a records request pursuant to the Government Records Access and Management Act (“GRAMA”) for a “list of all officers, sergeants, lieutenants, captains, and case workers” who were on shift in the Boulder Hickory Unit and the Dogwood Unit operated by the Department for four specific dates. On May 23, 2012, the Division of Institutional Operations rejected Mr. George’s records request stating that there were no records responsive to his request.

Mr. George filed an appeal with the Department which was denied by the Executive Coordinator for the Department on June 18, 2012. The denial letter stated that it was the Department’s understanding that Mr. George was requesting a list for staff “that was scheduled to work on Boulder Hickory unit on March 15, 2012, April 6, 2012, April 10, 2012, and Henry Dogwood Unit on June 30, 2011.” The letter further stated that there was “not an accurate record that is responsive” and that in order to provide an accurate record, “it would require compiling information to create a record.”

Mr. George filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on August 9, 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).

2. In response to a request for a record, a governmental entity is not required to: (i) create a record; (ii) compile, format, manipulate, package, summarize, or tailor information; or (iii) provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(a)(i-iii).

3. However, testimony was presented by the Department that records did exist that were responsive to Mr. George’s GRAMA request. The documents would show assignment rosters for the specified days, but the records did not include all of the information requested by Mr. George.

4. The name, job title, job description, business address, number of hours worked per pay period, and dates of employment are generally public records. Utah Code § 63G-2-301(2)(b). However, records that, if disclosed, 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 properly classified by a governmental entity. Utah Code § 63G-2-305(12)

5. After having reviewed the evidence and the testimony presented, the Committee finds that records exist that are responsive to Mr. George’s GRAMA request, and that there is information within those records that is public pursuant to Utah Code § 63G-2-301(2)(b). The Committee also finds that since these records involve correctional facilities and may relate to incarceration and treatment of individuals at those facilities, it would be appropriate for the Department to redact any information deemed to be protected pursuant to Utah Code § 63G-2-305(12). Accordingly, the Committee holds that the Department should release the Dogwood Unit daily assignment roster for June 30, 2011 and the Boulder Hickory Unit daily assignment rosters for March 15, 2012, April 6, 2012, and April 10, 2012 with the appropriate redactions.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ross George be granted as outlined in paragraph 5 above.

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 August 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Chairperson Pro Tem
State Records Committee