Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 05-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

WILLIAM SCHWAAR, Petitioner,
vs.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER
Case No. 05-08

By this appeal, William Schwaar seeks access to the diagnostic report completed on him prior to his sentence to prison. There is no dispute that the report was part of his presentence investigation. Mr. Schwaar apparently had access to the requested record one time, but at some point during his term of imprisonment, it was either lost or misplaced. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on November 17, 2005, 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. 63-2-201(2). GRAMA further provides that "[t]he disclosure of records to which access is governed or limited pursuant to . . . another state statute
. . . is governed by the specific provisions of that statute . . . ." Utah Code Ann. 63-2-201(6); see also Utah Code Ann. 63-2-201(3)(b).

2. In this case, there is no dispute that more specific provisions of Utah law govern access to the records sought by Mr. Schwaar. Utah Code Ann. 76-3-404(1)(b)(ii) provides: "[a]ny diagnostic evaluation report ordered by the court is supplemental to and becomes a part of the presentence investigation report." Diagnostic evaluations are, therefore, statutorily defined as part of the presentence investigative report. Utah Code Ann. 64-13-20(3) limits disclosure of presentence investigative reports:
(a) The presentence diagnostic evaluation and investigation report prepared by the department are protected as defined in Section 63-2-304 and after sentencing may not be released except by express court order or by rules made by the Department of Corrections.

(b) The reports are intended only for use by:
(i) the court in the sentencing process;
(ii) the Board of Pardons and Parole in its decision making responsibilities; and
(iii) The department in the supervision, confinement and treatment of the offender.

Therefore, a diagnostic evaluation is properly classified as protected. After sentencing, it may only be released by court order or rules made by the Department of Corrections.

3. Having determined that a diagnostic evaluation is part of the presentence investigation report, additional provisions limit the scope of this Committee's authority to hear appeals concerning a denial of access to this type of record. Utah Code Ann. 77-18-1(14) provides: "[p]resentencing investigation reports, including presentence diagnostic evaluations, are classified protected in accordance with Title 63, Chapter 2, Government Records Access and Management Act. Notwithstanding Sections 63-2-403 and 63-2-404, the State Records Committee may not order the disclosure of a presentence investigation report." Id. (emphasis added).

ORDER

WHEREFORE, IT IS ORDERED THAT Mr. Schwaar's appeal is denied. The Committee has no jurisdiction to hear this appeal.

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 by Utah Code Ann. 63-2-404. 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.

Entered this 22nd day of November, 2005.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chairperson
State Records Committee