State Records Committee Appeal Decision 2019-43
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 19-43
By this appeal, Petitioner, Patrick Sullivan, seeks access to records on behalf of Talon Hamann, held by Respondent, the Utah Department of Corrections.
On September 2, 2019, Mr. Sullivan submitted a request for records from the Utah Department of Corrections (“Corrections”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested copies of records on behalf of Mr. Hamann through a document labeled “Power of Attorney” signed by Mr. Hamann authorizing Mr. Sullivan “to do anything on my behalf…” The document stated that the power of attorney included claims and litigation matters, authorizing Mr. Sullivan to “institute, maintain, compromise, arbitrate or otherwise dispose of, any and all actions, suits, attachments or other legal proceedings for or against me.” At the time of the request, Mr. Hamann was an inmate with Corrections. The requested documents were for the following records: (1) Pictures of Mr. Hamann from 2012 to present; (2) Initial contact reports, incident reports, IR-1, IR-2, and Narratives for Mr. Hamann; (3) All “c-notes” for Mr. Hamann; and (4) All Offender History Reports for Mr. Hamann from 2012 to present.
In a letter dated September 17, 2019, the Records Manager for Corrections denied Mr. Sullivan’s records request for Mr. Hamann stating that the Power of Attorney form submitted “does not contain any provision that grants you permission to receive and view Mr. Hamann’s private records.” On September 19, 2019, Mr. Sullivan filed an appeal with Corrections arguing that the Power of Attorney form he submitted gave him the authority to receive Mr. Hamann’s private records. In a letter dated September 26, 2019, James Hudspeth, Deputy Director for Corrections, denied Mr. Sullivan’s appeal finding that the Power of Attorney form submitted by Mr. Sullivan “does not grant you authority to request and view records of Mr. Hamann that would constitute a clearly unwarranted invasion of Mr. Hamann’s privacy.”
On October 25, 2019, Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). On December 12, 2019, the Committee held a hearing. After considering the written and oral arguments of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. According to GRAMA, a record that is classified as private pursuant to Utah Code §§ 63G-2-302 & -303, is not a public record. Utah Code § 63G-2-201(3)(a). A governmental entity shall upon request disclose a private record to the subject of the record or any other individual who has a power of attorney from the subject of the record. Utah Code § 63G-2-202(1)(a) & -201(1)(a)(iv)(A).
2. During the hearing, Mr. Hamann stated that he signed the Power of Attorney form for the purpose of giving Mr. Sullivan authority to have access to his records. Based upon the written evidence presented to the Committee and Mr. Hamann’s testimony during the hearing, the Committee finds that Mr. Sullivan was authorized to obtain private records on behalf of Mr. Hamann as allowed by Utah Code § 63G-2-201(1)(a)(iv)(A).
3. A governmental entity is not required to respond to, or provide a record in response to, a record request if the request “is submitted by or in behalf of an individual” who is confined in a jail or other correctional facility following the individual’s conviction. Utah Code § 63G-2-201(10)(a). This does not apply to: (1) The first five record requests submitted to the governmental entity by or in behalf of such an individual during any calendar year requesting only a record that contains a specific reference to the individual; or (2) A record request that is submitted by an attorney of such an individual. Utah Code § 63G-2-201(10)(b).
4. Evidence was presented by Corrections showing that Mr. Hamann had already made two records requests during the 2019 calendar year. Accordingly, the Committee finds that Corrections was required to respond to the first three of Mr. Sullivan’s records requests on behalf of Mr. Hamann. The Committee further finds that Mr. Sullivan is not an “attorney of an individual” as stated in Utah Code § 63G-2-201(10)(b)(ii), and therefore the limitation of -201(10)(b)(i) to the first five requests by Mr. Hamann during 2019 “by or in behalf” of him applies. The Committee agrees with Corrections’ classification of the requested records as private records, and therefore, find that Mr. Sullivan is entitled to receive copies of the records on behalf of Mr. Hamann pursuant to Utah Code § 63G-2-201(1)(a)(iv)(A).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is GRANTED for the first three requested records on behalf of Talon Hamann, and DENIED for the fourth requested record.
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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities. Utah Code § 63G-2-403(15)(d)(i). 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 December 2019.
BY THE STATE RECORDS COMMITTEE
TOM HARALDSEN, Chair
State Records Committee
Page Last Updated January 6, 2020 .