State Records Committee Appeal Decision 24-47

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DOUGLAS HULSE, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS, Respondent,

DECISION AND ORDER

Case No. 24-47

By this appeal, Douglas Hulse (“Petitioner”), requests records allegedly held by Utah Department of Corrections (“Respondent”). 

FACTS

On July 30, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested “the incident report and any documents from my write up on 6-27-23.” Petitioner wanted a copy of the incident report to see why he was removed from a contingent program. The Respondent initially denied the request on August 8, 2023, classifying the record as protected due to a case being open with the Law Enforcement Bureau (“LEB”) at the time of the request.

Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”) on August 17, 2023, and claimed he had a right to access the report pursuant to § 63G-2-202(1) because he was the subject of the records and prohibiting his access violated his right to due process under the Fourteenth Amendment. Petitioner also claimed that because there was an open case with the LEB he was afforded “even more protections according to the law,” and that he had the “right to be provided of officer statements and evidence” used against him. On September 18, 2023, the CAO partially granted his appeal by providing a redacted copy of the incident report. The CAO explained that the redactions were necessary because “some of the information would reveal investigatory techniques or sources” and “jeopardize the health and safety of an individual if it were to be released because of its sensitive nature.” The redactions were made pursuant to Utah Code §§ 63G-2-305(10)(d) & (e), -305(11), and -305(13).

Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On June 20, 2024, the Committee held a hearing during which the parties were allowed to participate.  At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties.  After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

ISSUES FOR REVIEW

    The Committee is asked to determine whether the records were properly redacted.

STATEMENT OF REASONS FOR DECISION

    GRAMA provides that “a person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours, . . .” Utah Code § 63G-2-201(1)(a). However, a record that is classified as private or protected is not a public record. Utah Code § 63G-2-201(3)(a). If a record contains both information that the requester is entitled to receive and information that is private or protected, the governmental entity must allow the requester access to the information they are entitled to inspect but may redact or otherwise withhold the nonpublic information. Utah Code § 63G-2-308(1)-(2). Normally, in determining whether the disputed record should be disclosed, we are to weigh the various interests supporting access to the information against the interests favoring restriction; however, when a record is classified as protected under Subsection 63G-2-305(10), GRAMA requires the requester to show “by a preponderance of the evidence” that the interests favoring disclosure are at least equal to the interests favoring restriction. Utah Code § 63G-2-406(1). Furthermore, if a record is protected by Subsection 63G-2-305(11), the requester has an even higher burden to gain access to the records: the requester must show by clear and convincing evidence that the interest favoring access is at least equal to the interest favoring restriction. Utah Code § 63G-2-406(2).

    With respect to the classifications at issue, GRAMA holds that records are protected if they are created for criminal or administrative enforcement or discipline purposes and releasing the records could reasonably be expected to disclose the identity of a source not generally known outside of government, or reasonably be expected to disclose investigative techniques, procedures, policies, or orders not generally known outside of government if that disclosure would interfere with enforcement efforts. Utah Code § 63G-2-305(10)(d)-(e). Additionally, a record is also protected if releasing it would jeopardize the life or safety of an individual. Utah Code § 63G-2-305(11). And, finally, a record is private if releasing it would constitute a clearly unwarranted invasion of privacy. Utah Code § 63G-2-302(2)(d).

    At the hearing, the Committee reviewed the unredacted record in camera. From our review, we find that the redacted information is correctly classified. That information could reveal the identity of a source who is not generally known outside of government and could reasonably disclose investigative procedures and policies not generally known outside of government that could interfere with enforcement efforts. See Utah Code § 63G-2-305(10)(d)-(e). With the source’s identity known, it’s a reasonable concern that, in a correctional facility environment, the source’s safety could be in jeopardy if the information is disclosed.  Utah Code § 63G-2-305(11). Of course, with this concern in mind, it’s also natural to suppose that the source’s privacy interest in their identity can also be recognized under Subsection 63G-2-302(2)(d). Finally, we note that the Respondent has argued in its Statement of Facts that the redacted information is also protected under Subsection 305(10)(a), which shields information that could “reasonably be expected to interfere with an investigation. . . .” Utah Code § 63G-2-305(10)(a). To this classification, we don’t agree as it seems from the record that any investigation that was conducted into Petitioner has been concluded, and that even if an investigation were still ongoing, the Respondent has not clearly articulated any reasons as to how releasing the information could reasonably be expected to interfere with that investigation. In finding that the redacted information is properly classified, we now turn to whether the information can be disclosed, beginning with the information withheld under Subsection 305(10).

Because the 305(10) classification disallows a weighing analysis, we look to whether Petitioner’s evidence preponderates lifting the redactions. The main thrust of Petitioner’s interests in the information is to prepare an adequate defense. Petitioner raises a number of Constitutional doctrines and considerations supporting his right to adequately prepare his defense and thereby the need for the records. Petitioner also concedes that information concerning the source’s identity, housing, and drug testing machine may remain redacted. The information he wants concerns the incident relating to his disciplinary action. Petitioner also asserts that the information will likely be subject to discovery in his court action and will eventually be released anyway. 

The policy reason behind Subsection 305(10)(d)-(e), is to protect the safety of a source who has aided authorities in an investigation and allow investigative techniques, procedures, and policies to remain known only to authorities. In the context of a correctional facility, these interests are quite strong as safety and order are of paramount concern.

We understand Petitioner’s Constitutional arguments and legal need for the redacted information. However, we find that these reasons, as valid as they might be, do not preponderate to the level needed for us to grant access. The redacted information is inseparably intertwined with either the source’s identity, housing information, and the type of drug testing machine that the Respondent holds a strong interest in protecting. Even where the information doesn’t explicitly name the source, the housing, or the machine, reasonable inferences can be drawn to flush that information out. With that information made known, it’s not unreasonable to suppose that either the source’s safety could be in jeopardy or investigative techniques, procedures, and policies could be exposed, which would adversely affect Respondent in future investigations. 

While it is true that Petitioner has rights to evidence for a legal defense, we are not a court of law, nor do the rules of discovery apply in this forum. See Utah Code §§ 63G-2-403(10)(a); 63G-2-104. Consequently, we are to operate solely within the bounds of what GRAMA allows, and here, it is not our place to override the policy concerns behind Subsection 305(10) when the evidence isn’t strong enough to support it. 

Turning to the Subsection 305(11) classification, we note that GRAMA holds an even higher burden to grant access to these types of records. See Randolph v. State, 2022 UT 34, ¶85 (“The clear and convincing standard ‘implies something more than the preponderance, or greater weight, of the evidence; and something less than proof beyond a reasonable doubt’”) (quoting Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶24. Thus, if Petitioner cannot meet the preponderance standard for the same information, he cannot satisfy the clear and convincing standard. Accordingly, we cannot allow disclosure. 

As for the privacy classification under Subsection 302(2)(d), GRAMA does allow us to weigh the various interests supporting disclosure against those supporting restriction. However, because the source’s privacy interests are directly connected to the 305(10)(d) protection, we find that the interests here mirror those we looked at in analyzing 305(10). As a result, we must also restrict access under Subsection 302(2)(d).

ORDER

THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED. 

Entered this 1st day of July 2024.

BY THE STATE RECORDS COMMITTEE

Marie Cornwall
Chair, Pro Tem, Utah State Records Committee

Committee members Cornwall, M., Williams, K., Biehler, E., Buchanan, M., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.

enclosures: Right to Appeal; Penalty Notice

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 parties’ rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

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).