State Records Committee Appeal Decision 2019-29
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
GORDON THOMAS, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 19-29
By this appeal, Petitioner, Gordon Thomas, seeks access to records allegedly held by Respondent, the Utah Department of Corrections (“Corrections”).
On August 8, 2019, the parties appeared in person and by telephone before the State Records Committee (“Committee”) for a hearing. At the hearing, the parties jointly requested a continuance of the appeal in order to allow Mr. Thomas adequate time to review Corrections’ response filed with the Committee. See, Thomas v. Dept. of Corrections, State Records Committee Case No. 19-25 (Aug 19, 2019). The matter was again heard by the Committee on September 12, 2019. After hearing oral argument and testimony, reviewing the records in camera, and carefully considering the written arguments of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (“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. A record is a controlled record if: (1) The record contains medical, psychiatric, or psychological data about an individual; (2) The governmental entity reasonably believes that (a) releasing the information in the record to the subject of the record would be detrimental to the subject’s mental health or to the safety of any individual or (b) releasing the information would constitute a violation of normal professional practice and medical ethics; and (3) The governmental entity has properly classified the record. Utah Code § 63G-2-304.
3. Records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data, are private records pursuant to Utah Code § 63G-2-302(1)(b).
4. A private record shall upon request, be disclosed to the subject of the record. Utah Code § 63G-2-202(1)(a)(i). However, disclosure of a controlled record is more restrictive than disclosure of a private record in that the record can only be disclosed to the subject of the record pursuant to a court order or a legislative subpoena. Utah Code § 63G-2-202(2)(b).
5. Corrections provided records responsive to Mr. Thomas’ records request to the Committee. After having reviewed the records in camera and considering the arguments of the parties, the Committee finds that the records reviewed by the Committee were not fully responsive to Mr. Thomas’ records request. The Committee is persuaded that Corrections did not sufficiently search for records responsive to the records request, and that a further search may disclose responsive records. The Committee also finds that the reviewed records were properly classified by Corrections as controlled and private records under GRAMA. Information specific to the diagnosis contained in the records dated November 19, 1982, January 12, 1983, and May 2, 1983, should be classified as private and provided to Mr. Thomas. However, other parts of these documents were properly classified to be controlled records and therefore, should be redacted prior to providing the records to Mr. Thomas. See. Utah Code § 63G-2-308.
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Gordon Thomas, is hereby GRANTED in part, and DENIED in part.
RIGHT TO APPEAL
A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). In order to protect a parties’ rights on appeal, a party may wish to seek advice from an attorney.
Pursuant to Utah Code § 63G-2-403(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i)(B). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).
Entered this 23rd day of September 2019.
BY THE STATE RECORDS COMMITTEE
TOM HARALDSEN, Chair
State Records Committee
Page Last Updated September 23, 2019 .