Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2011-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JESSE FRUHWIRTH, Petitioner, vs.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 11-02

By this appeal, Petitioner, Jesse Fruhwirth, reporter for the City Weekly newspaper, seeks access to records documenting the housing history for ten living and two deceased inmates who are or were incarcerated in the Utah prison system.

FACTS

On August 5, 2010, Mr. Fruhwirth made a Government Records Access and Management Act (“GRAMA”) request to Gina Proctor, Utah Department of Correction’s (“UDC”) records officer for records documenting: (1) which housing units 12 inmates were currently located; (2) the units in which the inmates were housed over the tenure of their incarceration at the UDC; and (3) transfers from one unit to another. Mr. Fruhwirth also asked for records relating to two inmates who died while in UDC custody. Ms. Proctor partially denied Mr. Fruhwirth’s GRAMA request regarding where certain inmates in UDC’s custody are currently housed and also their housing history. UDC indicated the records could not be released because they were “protected” records, pursuant to Utah Code Ann. § 63G-2-305(12) and disclosure of the records sought by Mr. Fruhwirth would jeopardize the security or safety of UDC facilities.

Mr. Fruhwirth filed an appeal of Ms. Proctor’s denial. However, the parties dispute whether or not an appeal was timely filed to the “Department Head” at UDC. Mr. Fruhwirth on behalf of City Weekly now appeals to the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having convened on January 13, 2011, a hearing to hear oral argument and testimony, 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. § 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. Records of a governmental entity, which, if disclosed, would jeopardize the security or safety of a correctional facility or records relating to the 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 the governmental entity. Utah Code Ann, § 63G-2-305(12).

3. UDC argued that it reviewed the records request as to each of the 12 current and former inmates and, in each case, determined that the release of the records requested by Mr. Fruhwirth would jeopardize the security and safety of the UDC and its facilities. UDC provided argument and testimony indicating that an inmate’s present or former location in a UDC facility is frequently used by other inmates in attempts to identify “snitches” and/or to locate inmates to inflict “serious bodily harm or death”. UDC also provided testimony regarding safety measures in place to prevent such violence, including the need to prevent such information from becoming public and the need to properly classify such records as “protected,” pursuant to GRAMA.

4. Mr. Fruhwirth argued that the information was public at one time and that he needed the information to document the contentions of an inmate who had contacted him and his subsequent investigation of UDC’s use of solitary confinement. Mr. Fruhwirth further argued that while, in some cases, housing information can and should be appropriately protected in the twelve specific instances regarding his request, such was not the case, especially for the deceased inmates.

5. UDC argued and provided testimony that while an inmate may release his location by his own volition, inmate housing information has never been publicly provided by UDC via a website or by any other means for security reasons. UDC further countered Mr. Fruhwirth’s argument indicating that release of housing information provided information not only regarding the specific inmate, but also inmates who are housed with the inmate and that release of any such information could have far reaching effects for the UDC and other inmates. UDC provided testimony that if housing information were released in one case but not in another, negative inferences could be perceived amongst the prison population, potentially putting inmates at risk.

6. After hearing arguments and reviewing the materials submitted by the parties, the Committee finds UDC’s arguments persuasive, and finds that the requested records regarding current and/or living inmates are properly classified as protected records pursuant to Utah Code Ann. 63G-2-305(11). Accordingly, Mr. Fruhwirth’s appeal as to these records should be denied.

7. The Committee is not convinced, based upon the evidence presented, that the records regarding the two deceased inmates were properly classified as “protected” because there is no security risk to a deceased inmate. Accordingly, the Committee finds that the housing records and history as to the deceased inmates are public and should be released to Mr. Fruhwirth.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Jesse Fruhwirth, reporter for City Weekly, is upheld in part. The Committee orders Respondent, the Utah Department of Corrections, to release the records responsive to Mr. Fruhwirth’s request regarding the two deceased inmates. The appeal as to Mr. Fruhwirth’s remaining records request for current and housing history for the ten remaining inmates is denied because the records are properly classified as “protected,” pursuant to Utah Code Ann. § 63G-2-305(11).

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 governmental 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 Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental 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.

Dated this 20th day of January 2011.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee