Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2008-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STACY RAY PETERSON, Petitioner, vs.

UTAH BOARD OF PARDONS AND PAROLE, Respondent.

DECISION AND ORDER

Case No. 08-14

By this appeal, Stacy Ray Peterson, seeks access to records of the Utah Board of Pardons and Parole (“Board”), specifically e-mail records of the members of the Utah Board of Pardons and Parole pertaining to a Parole Board hearing held regarding Utah State Prison Inmate #19290, Stacy Ray Peterson.

FACTS

On or about May 21, 2008, the Petitioner, Stacy Ray Peterson, submitted a records request pursuant to Government Records Access and Management Act (“GRAMA”) for e-mail records of the members of the Board regarding a Parole Board hearing for Stacy Ray Peterson. Mr. Peterson’s request was denied on May 29, 2008, by Kym Chaplain, who indicated the Board did not keep such e-mails in the inmate’s files. On June 2, 2008, Mr. Peterson appealed this denial to the Board. Curtis L. Garner, Chairman, Utah Board of Pardons and Parole, responded by denying Mr. Peterson’s appeal on June 4, 2008. Mr. Garner’s denial stated that pursuant to Utah Code Ann. § 63G-2-304, e-mails between “Board Members” regarding offenders are classified as “protected” and are non-disclosable.

Mr. Peterson now appeals the decision of the Board to the State Records Committee (“Committee”). Having reviewed the materials submitted by the parties and having heard oral argument and testimony on August 14, 2008, the Committee now issues the following Decision and Order.

MOTION TO DISMISS

Prior to the hearing of this matter, the Utah Board of Pardons and Parole filed a Motion to Dismiss pursuant to Utah Code Ann § 63G-2-201(8)(a)(i), arguing that the records sought by Mr. Peterson, do not exist and the Board is not required to create a record in response to his request. Prior to hearing the merits of the case, the Committee allowed each party the opportunity to address the Motion to Dismiss.

The Board presented testimony that no e-mails existed. However, after questioning from the Committee, testimony was given that the Board only looked for copies of e-mails in Mr. Peterson’s file, and failed to determine whether copies of e-mails existed on computers administered by the Board.

After careful consideration, the Committee is not convinced that sufficient evidence was presented showing that the records requested by Mr. Peterson do not exist. Accordingly, the Board’s Motion to Dismiss is overruled.

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 and -304.

2. The Board denied Mr. Peterson the records he sought on the grounds that no records existed which were responsive to his request. The Board argued at the hearing that even if any e-mail records existed, they would be “protected” records pursuant to Utah Code Ann. § 63G-2-305(34) as “memoranda prepared by staff and used in the decision-making process by an administrative law judge, a member of the Board of Pardons and Parole, or a member of any other body charged by law with performing a quasi-judicial function.”

3. The Committee finds the Board’s argument persuasive, and holds that even if they existed, the e-mail records would not be considered “records” because they would be notes or internal memorandum prepared as part of the deliberative process by a member of the Board of Pardons and Parole. Utah Code Ann. § 63G-2-103(22)(b)(xi)(c).

ORDER

THEREFORE, IT IS ORDERED THAT: (1) The Motion to Dismiss by the Utah Board of Pardons and Parole is overruled, and (2) The appeal of Stacy Ray Peterson is denied based upon the finding that even if the e-mail records existed, access cannot be granted because they are part of the deliberative process of the Board pursuant to Utah Code Ann. § 63G-2-103(22)(b)(xi)(c).

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 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 21st day of August, 2008.

BY THE STATE RECORDS COMMITTEE

___________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee