BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KARL WILLIAM WINSNESS, vs.
SALT LAKE CITY CORPORATION
DECISION AND ORDER, CASE NO. 94-01
By this appeal, Appellant, Karl William Winsness seeks an order compelling Salt Lake City Corporation to release to him any records the City has that constitute police governing "no knock - no announce warrants," "high risk arrests and searches," and "major incident responses."
Appellant, Karl William Winsness, was informed in writing by the Committee that he had a right to appear before the Committee in person, by representative or through written statement or in all or any combination of those means of appearing. Appellant submitted written statements, but did not appear personally or through a representative at the hearing of January 19, 1994.
Appellee appeared through counsel, Frank M. Nakamura, at the January 19, 1994 hearing and submitted written comment, oral testimony through a witness, and oral argument. The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
1. The Appellee, Salt Lake City Corporation, does not have any records constituting police policy governing "no knock - no announce warrants," "high risk arrests and searches," or "major incident responses." Appellee relies on applicable sections of the Utah Code, which is a public document, for guidance in the areas of activity that are the subject of Appellant's request. Appellant cannot provide something it does not have.
2. Appellant does have some written policies regarding general arrest procedures for police officials, which are public and which Appellee has volunteered to send to Appellant for whatever benefit they may be to Appellant.
ORDER
WHEREFORE, IT IS ORDERED THAT the decision of Salt Lake City Corporation is sustained and the appeal is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 & 502(7) (1992). 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.
Entered this 21st day of January, 1994.
MAX J. EVANS,
Chairman, State Records Committee.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SASSY M. FINK and KSTU-TV, Appellants vs.
UTAH STATE HOSPITAL, Appellee
DECISION AND ORDER, CASE NO. 94-09
By this appeal, Appellants, Sassy M. Fink, mother and legal guardian for minor child, Ronald M. Fink, and KSTU-TV seek an order compelling the Utah State Hospital to release to them certain records as follows:
1) Records pertaining to the injury to patient Ronald M. Fink on or about May 9, 1994;
2) Records relating to any internal investigation into the incident causing the injury referred to in 1) above; and
3) Records of any disciplinary action taken against employee Chad Nelson during the course of his employment with the agency.
Appellant KSTU-TV appeared personally through an employee at the hearing held June 21, 1994. Appellant appeared at the hearing through counsel, Leonard E. McGee, Esq. Appellee appeared personally through an employee.
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is granted in part and denied in part and the parties have stipulated in part. The medical records pertaining to the injury to patient Ronald M. Fink are not to be released to KSTU-TV, on the grounds that they are private records. However, those records are to be supplied to Appellant Sassy M. Fink in her capacity as legal guardian, by stipulation between said Appellant and Appellee, and in accordance with Utah Code Ann. 63-2- 202(1)(b) (Supp. 1993). Appellee stipulated to consider supplying the medical records without fee under Utah Code Ann. 63-2- 203(3)(b) (1993 Supp.).
The items 2) and 3) above relating to any internal investigation and any disciplinary action taken against employee Chad Nelson shall be released to Appellants as public documents under Utah Code Ann. 63-2-201 (1993 Supp.). The documents are specifically found not to be protected under Utah Code Ann. 63-2- 304 (1993 Supp.).
ORDER
WHEREFORE, IT IS ORDERED that Appellant Fink's appeal is granted, inasmuch as the specified medical records are ordered to be supplied to said Appellant and any records of the specified internal investigation and of the specified disciplinary proceedings are to be supplied to said Appellant. Appellant KSTU-TV's appeal is granted in part and denied in part, inasmuch as said Appellant is not to receive the specified medical records, but shall be supplied any records of the specified internal investigation and of the specified disciplinary proceedings.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 & 502(7). 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.
Entered this 23rd day of June, 1994.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROGER E. PENMAN, Appellant, v.
UTAH DEPARTMENT OF CORRECTIONS, Appellee
DECISION AND ORDER, CASE NO. 94-17
Appellant Roger E. Penman seeks an order reversing Appellee's denial of Appellant's request for certain records that are held by Appellee. The records in question are IR-1; IR-2; Supplemental Reports and Investigative Reports concerning disciplinary case No. 393-2628. The Division has supplied certain of the documents to Appellant, but has denied access to certain other of the documents it considered not covered by the request because they did not concern case No. 393-2628, and has denied access to the Investigative Reports.
The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The Appeal is denied as to the Investigative Reports. The request for other documents Appellant thought he was requesting, but which Appellee considered outside the scope of the request, is deferred to the Department for further review and processing because of miscommunication between the parties as to the scope of the request. The basis for denial of the request for Investigative Reports is Utah Code Ann. 63-2-304(8)(9) and (11), under which those reports were properly classified as "protected." Upon Appellant's request the Committee has weighed the pertinent interests and public policies under Utah Code Ann. 63-2-403(11)(b) and has determined that the public interest favoring access does not outweigh the interest favoring restriction of access.
ORDER
WHEREFORE, it is ordered that Appellant's appeal from the denial of his request for the investigative reports is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to District Court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-402 and 63-2-502(7). 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.
Entered this 17th day of November, 1994.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DOLORES RUVALCABA, Appellant, v.
UTAH DEPARTMENT OF CORRECTIONS, Appellee
DECISION AND ORDER, Case No. 95-08
Appellant, Dolores Ruvalcaba, seeks an order reversing Appellee's denial of Appellant's request for the medical and prison records of Edward Lujan from the time of his incarceration to the time of his death while incarcerated that are or may be held by Appellee. Appellant was represented by John Pace, Esq. and Appellee was also represented by counsel. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The medical records have become "public" under Utah Code Ann. 63-2-909(1), under the particular facts of this case, though they were properly classified "private" under Utah Code Ann. 63-2-302(1)(b) during the subject's life. The relevant and controlling facts are Mr. Lujan's death together with the consent and request of all of Mr. Lujan's claimed relatives who appeared at the hearing that the records be ruled public, those claimed relatives consisting of Dolores Rich (Mother), Becky Lujan (Sister), Barbara Barker (Sister), and Tonya Valencia (Niece).
ORDER
WHEREFORE, it is ordered that Appellant's appeal for release of the medical records that were classified "private" during Mr. Lujan's life, but are "public" under this Order, is granted. The decision of Appellee Department is affirmed as to any of the records that are protected or controlled under the Utah Code.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). The Court is required to make its decision de novo. In order to protect its right to appeal, a party may wish to seek advice from an attorney.
Entered this 26th day of September, 1995.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SALT LAKE CITY CORPORATION, Appellant, vs.
INDUSTRIAL COMMISSION OF UTAH, Appellee.
DECISION AND ORDER, CASE NO. 94-16
Appellant Salt Lake City Corporation, through counsel, seeks an order reversing Appellee's denial of Appellant's request for certain records that are held by Appellee. Appellant is represented by Jodi L. Howick, Esq. and Frank Nakamura, Esq., and Appellee is represented by Alan L. Hennebold, Esq. The records in question are described by Appellant as follows:
A "Rebuttal to City's Response'' (the "Rebuttal") filed by LaMar C. Macklin in the Matter of LaMar C. Macklin v. Salt Lake City Corporation before the UADD (the "Matter").
A "Withdrawal of Charge" (the "Withdrawal") filed by LaMar C. Macklin in the Matter.
All other documents, exhibits, addenda, etc. which are relevant to the claims made by LaMar C. Macklin against Salt Lake City Corporation in the Matter.
It appears that Appellant included the last of these three types of records in its request for completeness, but has withdrawn its request for that encompassing type of record.
The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The Appeal is granted as to the Rebuttal and the Withdrawal. Utah Code Ann. 34-35-7 (14) does not apply to the circumstances of this case in which a party to proceedings requests records that are in the nature of pleadings in those proceedings. Thus, the indicated records are public records to be made available to Appellant under Utah Code Ann. 63-2-201(1) and (2).
ORDER
WHEREFORE, it is ordered that the Appellant's appeal as to the Rebuttal and the Withdrawal is granted.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to District Court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-402 and 63-2-502(7). 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.
Entered this 17th day of November, 1994.
MAX J. EVANS,
Chair State Records Committee
",Granted,1994-11-17T00:00:00Z "
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
A-1 DISPOSAL, Appellant, v.
DAVIS COUNTY SOLID WASTE MANAGEMENT AND ENERGY RECOVERY SPECIAL SERVICE DISTRICT, Appellee
DECISION AND ORDER, Case No 95-07
Appellant, A-1 Disposal, seeks an order reversing Appellee's denial of Appellant's request for two types of records: 1) Written communications between Appellee District and all haulers of waste (other than Appellant) operating in the District, from January 1, 1993 to the present, that relate to or constitute ordinance-violation citations, and 2) Written records prepared by or for Kent Lindsey regarding his observations of haulers picking up or disposing of waste from January 1, 1993 to the present. Appellant was represented by F. Mark Hansen, Esquire and Appellee was represented by Larry S. Jenkins, Esquire of Wood, Quinn & Crapo. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The Appeal is granted with limitations. As to the first request -- for records regarding citations -- those records are not properly classified "protected" and hence are releasable as public records under Utah Code Ann. 63-2-201. As to the second request -- for records prepared by or for Kent Lindsey regarding his observations of haulers -- those records are properly classified "protected," under Utah Code Ann. 63-2- 304(8)(e). However, under Utah Code Ann. 63-2-403(11)(b), the Committee exercises its weighing authority and determines that the interest favoring access to those records outweighs the interest favoring restriction of access, primarily because of Appellant's need for those records to defend its actions in legal proceedings relating to the allegations that Appellant has violated legal requirements.
These records ordered released under the weighing provision on grounds of need in legal proceedings are subject to use-limitations under Utah Code Ann. 63-2-403(11)(c). Under that section the Committee orders Appellant to maintain these records confidential and not to disclose them to anyone except to show a particular hauler records of its own activities, unless otherwise directed by Court order.
ORDER
WHEREFORE, it is ordered that Appellant's appeal is granted as limited above.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advice from an attorney.
Entered this 26th day of September, 1995.
MAX J. EVANS,
Chair State Records Committee.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
Gregory M. Bedard, Petitioner vs.
Utah Department of Corrections, Respondent
Case No. 97-01
Appellant, Gregory M. Bedard, an inmate at the Utah State Prison, seeks an order requiring Respondent to allow him to view and make notes from records consisting of all policies in the A and F manuals of Policies and Procedures of Respondent, or in the alternative to supply him copies of those documents free of charge based on his alleged pecuniosity.
Petitioner submitted request documents and a written request for hearing, and appeared personally at the hearing. Respondent was represented by Edward Kingsford, and presented documentation ahead of the hearing and testimony of prison official Jerry R. Pope and argument at the hearing. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is granted with conditions. The request for records specifically excluded portions properly classifiable as "protected" and there is no question that the documents requested are of a type ordinarily accessible as public records. The difficulties in the case arise from the status of the requester as a maximum security inmate at the prison, safety and prison- control considerations and the Petitioner's alleged impecuniosity.
Because of the prison's proper need to maintain safety and maintain control of prisoners, access to the documents must be conditioned in this case. Also, provision of copies of the voluminous documents without charge presents a troublesome question of cost and precedent.
ORDER
WHEREFORE, it is ordered that Petitioner's request for access to the requested records is granted, but that Petitioner's access is subject to conditions acceptable to Respondent that are properly based on Respondent's regular and lawful policies including those policies mandated by prison security.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 (Supp. 1995) and 63-2-502 (7) (Supp. 1995). The court is required to make its decision de novo.
In order to protect its rights of appeal, a party may wish to seek advice from an attorney.
Entered this 22nd day of January, 1997.
MAX J. EVANS, Chair
",Granted,1997-01-22T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WILLIAM T. JACOB, Appellant, vs.
AMERICAN FORK CITY, Appellee.
DECISION AND ORDER
Case No. 98-06
Appellant, William T. Jacob, seeks an order requiring Appellee to supply records consisting of "1 set of copies of the written documents and/or electronic data storage of the investigation of the Police Department 'started by Councilmembers Storrs and McKinney'; as referred to by Councilmember Brown on p. 37 of the City Council Minutes dated 05/14/97."
Appellant appeared in his own behalf and presented documentation, witnesses and argument. Appellee was represented by Kevin R. Bennett, Esq., Attorney for American Fork City, and presented documentation, witnesses and argument. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony, argument and public comment, now issues the following decision and order:
STATEMENT OF REASONS FOR DECISION
The appeal is denied. There are no records meeting the description of the request, based on evidence presented at the hearing.
ORDER
WHEREFORE, it is ordered the Appellant's request for access to the described records is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 30 days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals precess and governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 (1997) and 63-2-502(7) (1997). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advice from an attorney.
Entered this 4th day of August, 1998.
BETSY L. ROSS, Acting Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
Walter J. Thomas vs.
Utah Department of Corrections
Case No. 96-4
Appellant, Walter J. Thomas, seeks an order requiring Respondent to supply specific additional medical and psychological records pertaining to Petitioner for the period January through May of 1996, beyond those already supplied by Respondent.
Petitioner submitted written documents in seeking the hearing and appeared personally at the hearing, but did not submit any further written materials at the hearing. Respondent was represented by Edward Kingsford, and presented documentation ahead of the hearing and testimony of psychologist Frank Martin Rees and argument at the hearing. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is denied. Respondent stated it had combed Petitioner's medical and psychological records for the requested period and separated "private" records that could properly be released to Petitioner from those properly classifiable as "controlled" that are not properly releasable to Petitioner. Respondent also stated it had supplied 80 - 90% of the medical records for the period as "private" records, consisting of 400 - 500 pages.
Petitioner did not present any specific testimony that supported the assertion that the records withheld as "controlled" should have been released as "private," and the Respondent's testimony they provided all records properly classifiable as "private" rather than "controlled" was credible. Under Utah Code Ann. 63-2-303, the records withheld were properly classified as "protected."
ORDER
WHEREFORE, it is ordered that Petitioner's appeal is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 (Supp. 1995) and 63-2-502 (7) (Supp. 1995). The Court is required to make its decision de novo.
In order to protect its rights of appeal, a party may wish to seek advice from an attorney.
Entered this 26th day of August, 1996.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL A. SIMS, Appellant vs.
UTAH EDUCATION NETWORK, Appellee
DECISION AND ORDER
Case No. 98-05
Appellant, Michael A. Sims, seeks an order requiring Appellee to supply records Mr. Sims describes as the remaining pages of a report prepared by Appellee, the first page of which Appellee provided as Exhibit 11 in documents supplied June 17, 1998, and logs regarding utilization of the Internet by students and school personnel of the public schools in Utah.
Appellant appeared in his own behalf by conference telephone, and presented documentation, testimony and argument. Appellee appeared through Stephen A. Hess and George Brown, and presented documentation, testimony and argument. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is granted. Appellant agreed at the hearing that he was limiting his request to any remaining pages of the document appellee provided as Exhibit 11 and to the indicated logs.
Appellee stipulated to search its records to determine whether it has additional pages that were part of the document of which Exhibit 11 of Appellee's documents is the first page, and if it does have such additional pages, to provide them to Appellant. Based on that stipulation the Committee orders Appellee to provide to Appellant all the indicated additional pages if located.
Further, Appellee is ordered to provide, as public, copies of the indicated log files, except that Appellant is directed to redact and not provide any portion of the logs that identify individual persons or that link identifiable individual persons with any other information in the logs.
Authority for the disclosures ordered herein is Utah Code Ann. 63-2-201(1) and (2) (1997).
Appellee may charge a reasonable fee to cover its actual cost of duplicating and compiling the records provided, under Utah Code Ann. 63-2-203 (1997).
ORDER
WHEREFORE, it is ordered that Petitioner's request for access to the requested records is granted, as indicated above.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 30 days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process and governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404(1997) and 63-2-502(7)(1997). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advice from an attorney.
Entered this 29th day of June, 1998.
MAX J. EVANS,
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DANIEL G. MOQUIN, Appellant, vs.
UTAH ATTORNEY GENERAL'S OFFICE, Appellee
DECISION AND ORDER
Case No. 99-04
Appellant, Daniel G. Moquin, sought an order of the Committee requiring Appellee to supply "a copy of the investigation" relating to allegations of misconduct of certain other employees of Appellee Office. Mr. Moquin's request extended to any records placed in the personnel files of those employees that arose out of the allegations. Appellant also requested copies of all documents "relied on" in preparing a May 29, 1999 letter notifying Appellant of possible discipline for his conduct relative to certain other employees in Appellee Office. The appeal was heard by the Records Committee on July 14, 1999. Appellant appeared in his own behalf, and presented testimony and argument. Appellee was represented by Richard D. Wyss, Esq., and presented testimony and argument. Both parties had presented written documentation in advance of the hearing. The State Records Committee, having reviewed the written materials submitted by the parties and having heard the testimony and argument of the parties, now issues the following decision and order:
STATEMENT OF REASONS FOR DECISION
The Appeal is granted in part and denied in part. Appellant's request for records regarding allegations of misconduct of certain other employees in Appellee Office is granted. Those records are determined to be "formal charges or disciplinary actions against a past or present governmental entity employee" that meet the requirements of Utah Code Ann. 63-2-301(2)(o) and Rule R477-11-1 of the Utah Administrative Code and are not otherwise restricted, and hence are public records. Appellant's request for copies of records "relied on" in preparing a May 27, 1999 letter notifying Appellant of possible discipline for his conduct toward certain other employees in Appellee Office is denied, on the ground those records are "protected" under Utah Code Ann. 63-2-304(9)(a) and (b).
ORDER
WHEREFORE, it is ordered that Appellant's request for the records regarding allegations of misconduct of certain other employees in Appellee Office is granted and his request for the records of Appellee's investigation of Appellant is denied.
RIGHT TO APPEAL
The terms of this section titled "Right to Appeal" are required by statute to be included in the Order. Either party may appeal this Decision and Order to 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). The Court is required to make its decision de novo. In order to protect rights of appeal, a party may wish to seek advice from an attorney.
Entered this 19th day of July, 1999.
Betsy L. Ross,
Chair State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SUZANNE PAPE, Appellant vs.
UTAH DEPARTMENT OF PUBLIC SAFETY, Appellee.
DECISION AND ORDER
Case No. 99-12
Appellant, Suzanne Pape, sought an order of the Committee requiring Appellee to supply her a copy of "all pre-internal affairs investigation documents requested by [Appellant]" and "all documents not created or maintained for the internal affairs investigation" pertaining to Appellee's investigation of Appellant.
The appeal was heard by the Records Committee on November 10, 1999. Appellant was represented by James Harris, Esq., and presented testimony and argument. Appellee was represented by Richard D. Wyss, and presented testimony and argument. Both parties had presented written documentation in advance of or at the hearing or both. The State Records Committee, having reviewed the written materials submitted by the parties and having heard the testimony and argument of the parties, now issues the following decision and order:
STATEMENT OF REASONS FOR DECISION
The Appeal is denied based on Utah Code Ann. 63-2-304(9)(a), (b), (d), and (e).
ORDER
WHEREFORE, it is ordered that Appellant's request for the indicated record is denied.
RIGHT TO APPEAL
The terms of this section titled "Right to Appeal" are required by statute to be included in the Order. Either party may appeal this Decision and Order to 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). In an appeal to the District Court, the parties shall be the same as in the proceeding before the Committee, though the Records Committee shall be added as a party defendant under Utah Code Ann. 63-2-404(1)(c). The Court is required to make its decision de novo. In order to protect rights of appeal, a party may wish to seek advice from an attorney.
Entered this 15th day of November, 1999.
Betsy L. Ross,
Chair State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
Joseph W. O'Keefe, Jr., Petitioner vs.
Utah State Retirement Systems, Respondent
DECISION AND ORDER
Case No. 97-03
Petitioner, Joseph W. O'Keefe, Jr., seeks an order requiring Respondent to supply certain information that he considers "records" related to the base number of work hours per week for firefighters for purposes of the State Retirement System and related to lobbying on behalf on the Retirement Systems.
Petitioner presented written argument and documentation and appeared personally, presenting testimony and argument, at the hearing held July 15, 1997.
Respondent submitted letters to the committee through its counsel Kevin A. Howard, Esq. (June 4, 1997) and Gregory D. Phillips, Esq. of the law offices of Johnson & Hatch (July 7, 1997 and July 9, 1997). All three of these letters in behalf of Respondent asserted, on various grounds, that the State Records Committee did not have jurisdiction to hear Mr. O'Keefe's appeal against the Retirement Systems. A hearing was set for June 24, 1997 at which Mr. O'Keefe appeared. Upon the request of Respondent, the hearing was continued to July 15, 1997. Respondent, however, did not appear at the July 15, 1997, hearing, having informed the Committee by letter of July 7, 1997, that it would not do so "because such participation might be interpreted as consent to, or waiver of its argument of lack of, jurisdiction by the State Records Committee."
Not only did the Respondent's continuance inconvenience Petitioner, requiring two appearances instead of one, but Petitioner's argument in support of its refusal to appear at the time to which it had requested the matter be continued, based on waiver concerns, is misconceived inasmuch as a party can appear specially to contest jurisdiction without submitting itself to the jurisdiction of an adjudicative body. Further, if that were not true, Respondent's several written submissions could themselves be taken as consent to jurisdiction.
Respondent's absence rendered the hearing particularly difficult for the Committee, inasmuch as no one was present to respond to the Committee's questions regarding such matters as the relationship between the "board" and the "office," raised by the inconsistent use of those terms in Utah Code Ann. 49-1-201 (Supp. 1996), and whether the Retirement Board had adopted rules it is required to adopt under that same section.
Despite these concerns regarding the difficult position in which Respondent had placed Petitioner and the Committee, the Committee issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is denied. It appears to the Committee that Utah Code Ann. 49-1-201 (4) exempts the Retirement Office and Board from GRAMA on the basis of that subsection's exemption of the Board "from those acts which are applicable to state and other governmental entities under this code." This determination is not free from doubt, inasmuch as there is some question whether the "office" is exempted by the statute's exemption of the "board," and it is difficult to comprehend that the legislature intended to exempt the office and the board from all acts applicable to other governmental entities, and therefore difficult to know whether GRAMA, not specifically named as an act from which the Board was exempted, was included in the exemption. With some caution, we conclude that the context of 49-1-201, in view of that section's language as it stood prior to its amendment in 1996, requires inclusion of "office" within the term "board" as used in 49-1-201 (4), on the assumption that the "office" is governed by the "board," and conclude that GRAMA is within the broad language of the section's exemption.
The Committee laments the vastness of the exemption of 49-1-201 (4) that insulates the Retirement Board and Office from all "acts which are applicable to state and other governmental entities," and unanimously declares its support for the proposition that, as "a political subdivision of the state" (Utah State Retirement Office v. Salt Lake County, 780 P.2d 813, 815 (Utah 1989)) charged with carrying out the legal obligations of the state, ("[T]he Fund is a public entity closely related to the Retirement Office. The Fund was created to carry out the legal obligations of the state and its political subdivisions to retired public employees.") the Retirement Systems should be accountable to the people. We nevertheless follow the law as we understand it.
ORDER
WHEREFORE, it is ordered that Petitioner's request for access to the requested information or records is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2- 404 (Supp. 1996) and 63-2-502 (7) (Supp. 1996). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advise from an attorney.
Entered this 18th day of July, 1997.
BETSY ROSS,
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JULIAN HATCH, Appellant, vs. UTAH SCHOOL AND INSTITUTIONAL TRUST LANDS ADMINISTRATION, Appellee
DECISION AND ORDER
Case No. 99-07
Appellant, Julian Hatch, sought an order of the Committee requiring Appellee to supply to Appellant copies of three categories of records, as follows: a. All records between Chris Robinson and the Trust Lands Administration in 1998-1999 regarding Boulder property; b. Gibbs Smith's Application (and attachments) to Lease the subject property per a Trust Lands Administration letter to Appellant dated February 26, 1999; c. Smith's Request for Confidentiality of Business Records related to the Application.
The appeal was heard by the Records Committee on September 8, 1999. Appellant appeared in his own behalf, and presented testimony and argument. Appellee was represented by John W. Andrews, Esq., and presented testimony and argument. Both parties had presented written documentation in advance of the hearing, it being noted that though Appellee's written response dated September 7, 1999 was delinquent as being supplied only the day before the hearing, Appellant expressly waived objection to going forward with the hearing as scheduled.
The State Records Committee, having reviewed the written materials submitted by the parties and having heard the testimony and argument of the parties, now issues the following decision and order:
STATEMENT OF REASONS FOR DECISION
The Appeal is denied. No records of the indicated communications between Mr. Robinson and the agency remain, those communications having been conducted by telephone or e-mail and the e-mails having "been deleted from the agency's computer system as part of routine system maintenance," as stated by Appellee. The Application to lease the property and Mr. Smith's request for confidentiality were supplied to Appellant on September 8, 1999. The remaining records regarding Mr. Smith's Application are determined to be protected under Utah Code Ann. 63-2-304(2), (4) and (6) and 63-2-308. Appellee is advised to work with the Division of Archives and Records Service to improve its handling of records and is also advised to revise its business confidentiality form so as to require the applicant to concisely state the basis for his claim of business confidentiality in his own words, and to delete the statement in the application that confidentiality will be presumed if it is not specifically claimed.
ORDER
WHEREFORE, it is ordered that Appellant's request for the remaining unsupplied indicated records is denied.
RIGHT TO APPEAL
The terms of this section titled "Right to Appeal" are required by statute to be included in the Order. Either party may appeal this Decision and Order to 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). The Court is required to make its decision de novo. In order to protect rights of appeal, a party may wish to seek advice from an attorney.
Entered this 13th day of September, 1999.
Betsy L. Ross,
Chair State Records Committee
",Denied,1999-09-13T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WILLIAM MUNRO, Appellant, vs.
UTAH DEPARTMENT OF CORRECTIONS, Appellee.
DECISION AND ORDER
Case No. 00-07
By this appeal, William Munro seeks an order compelling the Utah Department of Corrections to provide a "nine column employee list/roster."
The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony of the parties on November 1, 2000, now issues the following Decision and Order.
FINDINGS OF FACT
1. William Munro is an inmate at the Utah State Prison.
2. The Utah State Prison is administered by the Utah Department of Corrections ("UDOC").
3. Mr. Munro requested a nine column employee roster minus the social security number column, which request was denied by UDOC.
4. UDOC did provide Mr. Munro a three column roster, including the employee's first name, last name and job title, which items are included in the nine column roster.
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 Ann. Section 63-2-201(2) (2000). Records that are not public are designated as either "private," "protected," or "controlled." Utah Code Ann. Sections 63-2-302, -303, -304 (2000).
2. UDOC denied Mr. Munro's request on the basis that the additional six columns of the employee roster (minus the social security number) were protected under the provisions of Utah Code Ann. Section 63-2-304(12) (Supp. 2000).
3. The Committee finds that UDOC properly denied access to the additional six columns. The release of these records would jeopardize the security or safety of a correctional facility, and are therefore properly classified as protected in accordance with Utah Code Ann. Section 63-2-304(12) (Supp. 2000).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Mr. Munro for the additional six columns of the employee roster be denied.
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 by Utah Code Ann. Sections 63-2-404 and 63-2-502(7) (2000). 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.
Entered this 6th day of November, 2000.
BY THE STATE RECORDS COMMITTEE
Betsy L. Ross, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRENT POLL, Petitioner, vs.
SOUTH WEBER CITY, Respondent.
DECISION AND ORDER
Case No. 02-01
By this appeal, Brent Poll seeks access to minutes from a meeting closed pursuant to Utah Code Ann. 52-4-4.
The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on January 9, 2002, now 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 Ann. 63-2-201(2). GRAMA also provides that records properly classified as "protected" or otherwise "restricted pursuant to court rule, another state statute, federal statute, or federal regulation . . ." are not public. Utah Code Ann. 63-2-201(3). Respondent denied Mr. Poll the records he seeks on the grounds that said minutes are protected under Utah Code Ann. 52-4-7.5(2)(b)(i) and 63-2-304(7), (8), and (32).
2. Utah Code Ann. 52-4-7.5(2)(b)(i) states that "[t]ape recordings and written minutes of closed meetings are protected records . . . ." See also Utah Code Ann. 63-2-304(32). Said records "may be disclosed pursuant to a court order only as provided in Section 52-4-10." Utah Code Ann. 52-4-7.5(2)(b)(ii) (emphasis added).
3. The Committee finds that the records in question are properly classified as protected. Furthermore, after consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or non-disclosure, the Committee finds that the public interests favoring access are not outweighed by the interests favoring restriction of access. See Utah Code Ann. 63-2-403(11)(b) and 63-2-202(9)(b).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Mr. Poll is denied. Respondent's determination regarding the classification of these records as protected is affirmed.
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. 63-2-404. 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.
Entered this 14th day of January, 2002.
BY THE STATE RECORDS COMMITTEE
Cherie Willis, Chairperson
State Records Committee
",Denied,2002-01-14T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
GREGORY T. DUNN, Appellant vs.
TOOELE CITY, Appellee.
DECISION AND ORDER Case No. 99-08
Appellant, Gregory T. Dunn, sought an order of the Committee requiring Appellee to supply him information regarding, and access to, records of Appellee City that reflect claims against the City. Appellee had provided certain information regarding the requested records, but had redacted the names and addresses of claimants and had denied access to the records themselves that include names and addresses of claimants as "private" records, on grounds releasing those names and addresses would be disclosure constituting "a clearly unwarranted invasion of personal privacy" under Utah Code Ann. 63-2-302(2)(d).
The appeal was heard by the Records Committee on September 22, 1999. Appellant appeared in his own behalf, and presented testimony and argument. Appellee was represented by Roger Baker, Esq., and presented testimony and argument. Both parties had presented written documentation in advance of the hearing, Appellee's documents including certain disputed records presented to the Committee only. The State Records Committee, having reviewed the written materials submitted by the parties and having heard the testimony and argument of the parties, now issues the following decision and order:
STATEMENT OF REASONS FOR DECISION
The Appeal is granted. The Committee determines that the indicated records are "public" under Utah Code Ann. 63-2-201(2) and that their inclusion of names and addresses does not render them "private" under Utah Code Ann. 63-2-302(2)(d). This Order allowing access to the records of claims against the City extends to records of concluded claims, but not records of pending claims, Appellant having stipulated at the hearing that he does not seek records of pending claims. It is in the public interest to allow access to these documents that show how public monies are being spent. It is noted that both parties conscientiously considered and presented their positions, and there is no appearance of bad faith on the part of either.
ORDER
WHEREFORE, it is ordered that Appellant's request for the indicated record is granted, as detailed above.
RIGHT TO APPEAL
The terms of this section titled "Right to Appeal" are required by statute to be included in the Order. Either party may appeal this Decision and Order to 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). In an appeal to the District Court, the parties shall be the same as in the proceeding before the Committee, though the Records Committee shall be added as a party defendant under Utah Code Ann. 63-2-404(1)(c). The Court is required to make its decision de novo. If production of records is ordered and the party ordered does not appeal, it must file a notice of compliance with the Records Committee under Utah Code Ann. 63-2-403(14)(a). In order to protect rights of appeal, a party may wish to seek advice from an attorney.
Entered this 27th day of September, 1999.
Betsy L. Ross,
Chair State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DESERET NEWS, Appellant, vs.
UTAH STATE TAX COMMISSION, Appellee.
DECISION AND ORDER
Case No. 00-08
By this appeal, the Deseret News seeks an order compelling the Utah State Tax Commission to provide access to tax lien information on property of candidates seeking public office.
The State Records Committee, having reviewed materials submitted by the parties, and having heard oral argument and testimony of the parties on November 29, 2000, now issues the following Decision and Order.
FINDINGS OF FACT
1. On July 27, 2000, Joel Campbell, Associate Editor of the Deseret News, sent a request to the Utah State Tax Commission (the "Commission") requesting a copy of "records relating to tax liens placed on property of candidates seeking public office in the November general election." Mr. Campbell submitted this request pursuant to the Government Records Access Management Act ("GRAMA"). The Commission denied the request because the information Mr. Campbell sought was classified as private pursuant to GRAMA, and because the Commission believes Utah Code Ann. 59-1-403 forbids Tax Commission employees from releasing any tax return information "under most circumstances, including this one."
2. On September 14, 2000, Mr. Campbell appealed the denial to Rodney G. Marrelli, Executive Director of the Commission.
3. Mr. Marrelli denied the request on September 26, 2000.
4. On October 18, 2000, Mr. Campbell appealed that denial to the State Records Committee.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). GRAMA further provides that "[t]he disclosure of records to which access is governed or limited pursuant to . . . another state statute, a federal statute . . . is governed by the specific provisions of that statute . . . ." Utah Code Ann. 63-2-201(6). Utah Code Ann. 59-1-403 states:
Any tax commissioner, agent, clerk or other officer or employee of the Commission or any representative, agent, clerk, or other officer or employee of any county, city or town may not divulge or make known in any manner any information gained by him from any return filed with the Commission. The officials charged with custody of such returns are not required to produce any of them or evidence of anything contained in them in any action or proceedings in any court except:
(a) In accordance with judicial order;
(b) On behalf of the Commission in any action or proceeding under this title or other law under which persons are required to file returns with the Commission;
(c) On behalf of the Commission in any action or proceeding to which the Commission is a party; and
(d) On behalf of any party to any action or proceeding under this title when the report or fax shown thereby are directly involved in such action or proceeding. In any event, the court may require the production of, and may admit in evidence, any portion of reports or of the facts shown by them, as are specifically pertinent to the action or proceeding.
Id. (emphasis added). None of the criteria necessary for release of the tax information set forth in 59-1-403 are present in this situation. Tax information giving rise to a lien comes from tax returns and is therefore directly prohibited from disclosure. See Utah Code Ann. 59-1-403. Therefore, the information requested by Mr. Campbell may not be released by the Commission.
2. Mr. Campbell argues that because the information the Commission has is similar to information which becomes a public record at the courts, the Tax Commission's records should be disclosed. This argument is without merit. A tax lien is not a public record until warrant information has been filed in a district court. Once it is filed, it is the district court's information and that is the place to obtain it.
ORDER
WHEREFORE, IT IS ORDERED THAT, under the current statutory scheme, the Utah State Tax Commission was correct in its determination that it cannot disclose the requested information. The Tax Commission must follow the mandates set forth by the Legislature in Utah Code Ann. 59-1-403. The decision of the Utah State Tax Commission to deny access to the requested information is affirmed.
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 by Utah Code Ann. 63-2-404 and 63-2-502(7) (2000). 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.
Entered this 4th day of December, 2000.
BY THE STATE RECORDS COMMITTEE
Betsy L. Ross, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BARBARA SCHWARZ, Appellant, vs.
DEPARTMENT OF HUMAN SERVICES - DIVISION OF MENTAL HEALTH, Appellee.
DECISION AND ORDER
Case No. 01-05
By this appeal, Barbara Schwarz seeks an order of the Committee requiring that the Division of Mental Health provide her with all records in its possession pertaining to her. Specifically, Ms. Schwarz requested: As described in my letters of March 9, 2001 and March 20, 2001 to Janina Chilton, the records by Ms. Chilton and also Valley Mental Health and Disability Law Center in D.C. and SLC and any other kind of records on me. Likewise, Ms. Schwarz' March 20, 2001 letter requests "any records that you have on me that were either generated by your [sic] or received by you." Finally, the March 9, 2001 letter requests "a copy of your correspondence, the letters, cards, e-mail, memoranda, notes, etc. that you received and generated in regards of me."
The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony of the parties on July 11, 2001, now 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 Ann. 63-2-201(2).
2. GRAMA also provides that records that are private, controlled and protected records are not public. See Utah Code Ann. 63-2-201(3).
3. Utah Code Ann. 63-2-403(11)(b) allows the Committee to disclose private, protected or controlled records where the "public interest favoring access outweighs the interest favoring restriction of access" after "consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure . . . ." Id.; see also Utah Code Ann. 63-2-202(9)(b).
4. The Division has classified the referrals it receives as private, controlled and protected and bases its denial on those classifications. Therefore, the threshold question before us is whether those classifications are proper.
5. The Division has in its possession a one-page e-mail message regarding Ms. Schwarz. It has indicated under oath that no other records exist. The Division provided the e-mail message to Ms. Schwarz, redacting only the name of the author. The author's title, employer and phone number were not redacted. The Division denied access to remaining portion of the record pursuant to Utah Code Ann. 63-2-302, -304(10) and -303 . It argued that the record was "protected as to the referrant and controlled as to the body of the e-mail." Furthermore, since the author of the e-mail requested that her identity not be disclosed, the Division argued that disclosure would constitute a clearly unwarranted invasion of the author's personal privacy.
6. Thus, the relevant inquiry is whether disclosing the name of the referring party would "jeopardize the life or safety of an individual," would constitute a "clearly unwarranted invasion of personal privacy" or would amount to "a violation of normal professional practice and medical ethics." After considering the evidence and argument of the parties, the Committee finds that the Division has properly classified the identity of a referring party as a private or controlled record.
7. The remaining issue before us is whether, after "consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or non-disclosure," the public interest favoring access outweighs the interest favoring restriction of access. See Utah Code Ann. 63-2-403(11)(b) (Supp. 2000). Under the specific facts of this case, the Committee is persuaded that the public interest favoring access outweighs the interests favoring restriction of access. In reaching this decision, the Committee is mindful of the fact that the Division already disclosed the body of the e-mail and the title, employer and phone number of the author. Since GRAMA provides that all records are public unless otherwise expressly provided by statute, the Committee finds that Appellee is entitled to the remaining portion of the requested record. The public interest is served by allowing Ms. Schwarz to identify the person who has provided information about her to the government. For example, Ms. Schwarz may find it necessary to supplement or correct any information provided by this person to other government entities.
8. Counsel for the Division indicated it would provide an affidavit indicating it has provided Ms. Schwarz with all records in its possession concerning her. This decision is based in part on that representation.
ORDER
WHEREFORE, IT IS ORDERED THAT the appeal is granted and the decision of the Department of Human Services, Division of Mental Health is reversed. The Department shall prepare an affidavit indicating that the records provided to Ms. Schwarz constitute all records concerning her in its possession.
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 by Utah Code Ann. 63-2-404. 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.
Entered this 11th day of July, 2001.
BY THE STATE RECORDS COMMITTEE
Cherie Willis, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROBERT RICE, Petitioner, vs.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 02-02
By this appeal, inmate Robert Rice seeks access to records to various prison policies and procedures concerning inmate and visitor management and security, including searches and involuntary medical treatment.
The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on January 9, 2002, now 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 Ann. 63-2-201(2). Records that are not public are designated as either "private," "protected," or "controlled." See Utah Code Ann. 63-2-302, -303 and -304. The Department denied Mr. Rice the records he seeks on the grounds that said polices and procedures are protected.
2. The Committee is persuaded that disclosure of the information requested would "jeopardize the life or safety of an individual," "would jeopardize the security or safety of a correctional facility" or are otherwise "records relating to incarceration [or] treatment ... that would interfere with the control and supervision of an offender's incarceration [or] treatment." See Utah Code Ann. 63-2-304(10) and (12).
3. The Utah Department of Corrections has therefore properly classified the records in question as "protected" under Utah Code Ann. 63-2-304(10) and (12).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Mr. Rice is denied. The Department's determination regarding the classification of these records is affirmed.
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. 63-2-404. 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.
Entered this 14th day of January, 2002.
BY THE STATE RECORDS COMMITTEE
Cherie Willis, Chairperson
State Records Committee
",Denied,2002-01-14T00:00:00Z "
CHARLES WATKINS, Appellant, vs.
UTAH DEPARTMENT OF CORRECTIONS, Appellee
Case #99-02
DECISION AND ORDER
Appellant Charles Watkins sought an order of the Committee requiring Appellee to supply all mental health records Appellee held regarding Appellant from January 1990 to September 12, 1998.
Appellee had reviewed the records and classified approximately 70% of them "Private," thereupon releasing that 70% to Appellant. The remaining portion was classified "controlled" under Utah Code Ann. 63-2-303 on the ground this classification satisfied the standard set forth in 63-2-303. Appellee thereafter appealed the classification of this portion as "controlled" to the State Records Committee.
The appeal was heard by the Records Committee on March 16, 1999 by telephonic conference to the prison. Appellant appeared in his own behalf, and presented testimony and argument. Appellee was represented by Ed Kingsford, and presented testimony and argument. Both parties had presented written documentation in advance of the hearing. The State Records Committee, having reviewed the written materials submitted by the parties and having heard the testimony and argument of the parties, now issues the following decision and order:
STATEMENT OF REASONS FOR DECISION
The Appeal is denied on the ground that the records classified "controlled" do meet the standard set forth in Section 63-2-303. A relevant consideration is that under the Labrum doctrine an inmate would be allowed access to any "controlled" documents used in legal proceedings involving him, and therefore his civil rights are protected.
ORDER
WHEREFORE, it is ordered that Appellant Watkins's request for the indicated records is denied.
RIGHT TO APPEAL
The terms of this section titled "Right to Appeal" are required by statute to be included in the Order. Either party may appeal this Decision and Order to 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). The Court is required to make its decision de novo. In order to protect rights of appeal, a party may wish to seek advice from an attorney.
Entered this 18th day of March, 1999.
Betsy L. Ross, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PEOPLE FOR THE USA, COLOR COUNTRY CHAPTER, Appellant, vs.
KANE COUNTY, Appellee.
DECISION AND ORDER
Case No. 00-10
By this appeal, People for the USA, Color County Chapter ("PFUSA") seeks an order compelling Appellee, Kane County (the "County"), to provide (1) the complete road agreement between the Bureau of Land Management in Kane County, including all supporting documents, (2) minutes from several meetings, (3) current plats and specific descriptions of all county roads existing in Kane County, and (4) a second written opinion from Steve Boyden of the Utah Attorney General's Office concerning the aforementioned road agreement. At the hearing, the County stated that a second written opinion from Mr. Boyden does not exist.
The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony of the parties on November 29, 2000, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
The parties have agreed that the remaining information requested by PFUSA is public. Kane County must make this information accessible to PFUSA so that it may determine which of those records it would like copied. The Committee strongly suggests that the parties establish a procedure that will allow PFUSA to thoroughly inspect the documents in the County's possession. Options suggested by the parties at the hearing to allow PFUSA to obtain copies of those documents included outsourcing PFUSA's copy requests to a private company or making copies with County copying equipment where possible.
ORDER
WHEREFORE, IT IS ORDERED THAT Appellant's appeal is granted. The County must provide access to PFUSA to allow them to inspect the documents it has requested. If PFUSA has any County documents or maps in its possession, it shall immediately return those records.
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 by Utah Code Ann. 63-2-404 (2000). 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.
Entered this 4th day of December, 2000.
BY THE STATE RECORDS COMMITTEE
Betsy L. Ross, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
HAROLD SERSLAND, Appellant, vs.
DEPARTMENT OF NATURAL RESOURCES - DIVISION OF WILDLIFE RESOURCES, Appellee.
DECISION AND ORDER
Case No. 02-04
By this appeal, Harold Sersland seeks data on "guzzler" locations in the Dugway and Thomas mountain ranges of Tooele and Juab counties.
The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on February 6, 2002, now 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 Ann. 63-2-201(2). Records that are not public are designated as either "private," "protected," or "controlled." See Utah Code Ann. 63-2-302, -303 and -304. The Department denied Mr. Sersland the records he seeks on the grounds that the requested guzzler locations are biological resources and therefore protected under Utah Code Ann. 63-2-304(26). This provision states that "records that reveal the location of historic, prehistoric, paleontological, or biological resources that if known would jeopardize the security of those resources or of valuable historic, scientific, educational, or cultural information" are protected if properly classified by a government entity. Id.
2. The Committee is persuaded that disclosure of the information requested would "reveal the location of ... biological resources that if known would jeopardize the security of those resources." Id.
3. The Utah Department of Natural Resources has therefore properly classified the records in question as "protected" under Utah Code Ann. 63-2-304(26).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Mr. Sersland is denied. The Department's determination regarding the classification of these records is affirmed.
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. 63-2-404. 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.
Entered this 11th day of February, 2002.
BY THE STATE RECORDS COMMITTEE
Cherie Willis, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
FRANK MEDEL, JR., Petitioner vs.
UTAH DEPT. OF PUBLIC SAFETY, Respondent
DECISION AND ORDER
Case No. 03-10
By this appeal, Frank Medel seeks access to "all written reports generated by the Utah State Crime Lab in the analysis of physical evidence - Code R examinations obtained from the West Valley Police Department, Salt Lake County Sheriff's Office and Salt Lake City Policy Department which were sent to the Crime Lab." Mr. Medel's records request cites specific incident, criminal and County Attorney file numbers to identify the information he seeks. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on July 29, 2003, 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. 63 2 201(2). GRAMA further provides that "[t]he disclosure of records to which access is governed or limited pursuant to . . . another state statute . . . is governed by the specific provisions of that statute . . . ." Utah Code Ann. 63 2 201(6); see also Utah Code Ann. 63-2-201(3)(b). Utah Code Ann. 53-10-406 states:
(1) The bureau shall:
(a) store all DNA specimens received and other physical evidence obtained from analysis of those specimens;
(b) analyze the specimens to establish the genetic profile of the donor or to otherwise determine the identity of persons or contract with other qualified public or private laboratories to conduct the analysis;
(c) maintain a criminal identification data base containing information derived from DNA analysis;
. . . .
(3) (a) In accordance with Subsection 63 2 304, all DNA specimens received shall be classified as protected.
(b) The Department of Public Safety may not transfer or disclose any DNA specimen, physical evidence, or criminal identification information obtained, stored, or maintained under this section, except under its provisions.
Id. (emphasis added).
2. Notably, the Utah Legislature passed House Bill 107 (DNA Amendments) in the 2003 General Session. This bill changed the GRAMA classification of DNA specimens received by the Department from private to protected. The Committee heard testimony that the information sought by Mr. Medel was created and derived from protected DNA specimens submitted to the Crime Laboratory. Therefore, the Committee is persuaded that Utah Code Ann. 53-10-406(3)(b) prohibits disclosure of the information requested.
ORDER
WHEREFORE, IT IS ORDERED THAT, under the current statutory scheme, the Department of Public Safety was correct in its determination that it cannot disclose the requested information. The Department must follow the mandates set forth by the Legislature in Utah Code Ann. 53-10-406. The Department's decision to deny access to the requested information is affirmed.
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 by Utah Code Ann. 63-2-404. 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.
Entered this 30th day of July, 2003.
BY THE STATE RECORDS COMMITTEE
Robert Woodhead, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERNEST CHACON, Appellant vs.
UTAH DEPARTMENT OF CORRECTIONS, Appellee
DECISION AND ORDER
Case No. 99-05
Appellant, Ernest Chacon, sought an order of the Committee requiring Appellee to supply him a copy of the portions of the investigative report of a certain 1988 incident at the Utah State Prison that reflect what Mr. Chacon told the investigators of the incident about the incident. Appellee had denied Mr. Chacon's request for this record. The appeal was heard by the Records Committee on September 8, 1999. Appellant appeared in his own behalf by telephone, and presented testimony and argument. Appellee was represented by Edward Kingsford, and presented testimony and argument. Both parties had presented written documentation in advance of the hearing and Appellee brought certain disputed records to the hearing for review of the Committee only.
The State Records Committee, having reviewed the written materials submitted by the parties and having heard the testimony and argument of the parties, now issues the following decision and order:
STATEMENT OF REASONS FOR DECISION
The Appeal is denied. The requested record is properly classified as "protected" under Utah Code Ann. 63-2-304(9)(e), (10) and (12). Further, having reviewed the disputed records and upon balancing the interests in favor of disclosure against the interests in favor of non-disclosure under Utah Code Ann. 63-2-403(11)(b), the Committee concludes, still, that the record requested should not be disclosed. It is noted incidentally that it became clear at the hearing that Appellant Chacon's statements to the investigators of the incident provided no basis for seeing Mr. Chacon as an informant or "jail house snitch."
ORDER
WHEREFORE, it is ordered that Appellant's request for the indicated record is denied.
RIGHT TO APPEAL
The terms of this section titled "Right to Appeal" are required by statute to be included in the Order. Either party may appeal this Decision and Order to 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). The Court is required to make its decision de novo. In order to protect rights of appeal, a party may wish to seek advice from an attorney.
Entered this 13th day of September, 1999.
Betsy L. Ross,
Chair State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WASATCH COUNTY COURIER, LLC, Appellant, vs.
WASATCH COUNTY, Appellee.
DECISION AND ORDER
Case No. 00-05
By this appeal, Wasatch County Courier, LLC, a newspaper, (hereinafter, the "Courier") seeks an order compelling Wasatch County (hereinafter, the "County") to allow it access to certain records that County officials have deemed "protected." At issue is the disclosure of billing records relating to payments by the County to outside counsel Joseph Dunbeck.
The State Records Committee, having reviewed the materials submitted by the parties, and having heard the oral argument and testimony of the parties on October 11, 2000, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act ("GRAMA") provides that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2) (2000).
2. GRAMA also provides that records that are "protected" are not public. Utah Code Ann. 63-2-201(3) (2000).
3. The County has classified Mr. Dunbeck's attorney billing statements as protected records under GRAMA. See Wasatch County Resolution No. 00-05. The resolution classified "attorney billing statements as 'protected records' under GRAMA where the County is involved in pending or ongoing litigation . . . ."
4. "Pending" or "ongoing" litigation is defined in this resolution as covering the following circumstances: A. A "Notice of Claim" or a "Notice of Intent to Commence Action" has been submitted to the County pursuant to Title 63, Chapter 30 of the Utah Code or an action has been filed in a court of law; and B. The litigation has not been settled or adjudicated and the time periods for appealing, modifying or otherwise vacating the settlement or adjudication have not expired. Id.
5. On or about May 10, 2000, the county clerk provided the materials in the County's possession as requested in the Courier's GRAMA request, with the exception of Joseph Dunbeck's attorney billing statements to the County as to ongoing litigation.
6. The newspaper does not have any relationship with the parties described in the billing records they seek.
7. The Committee finds that Utah Code Ann. 63-2-307 (Segregation of records), is applicable to the Courier's records request. This provision states, that "[n]otwithstanding any other provision of this chapter, if a governmental entity receives a request for access to a record that contains both information that the requester is entitled to inspect and information that the requester is not entitled to inspect under this chapter, . . . the governmental entity: (1) shall allow access to information in the record that the requester is entitled to inspect under this chapter . . . ."
8. Having considered argument by the County that Utah Code Ann. 63-2-304 (16) - (18) governs disclosure of these records, the Committee is not persuaded that those provisions are applicable to all data elements in the requested billing statements.
9. Furthermore, the Committee finds the Utah Supreme Court's decision in Gold Standard, Inc. v. American Barrick Resources Corp., 801 P.2d 909 (Utah 1990) applies to this case. In that decision, the Utah Supreme Court held that a letter from a corporate client to its attorney which merely outlined a fee agreement was not a privileged communication. It based this decision on the fact that "[t]he letter [did] not contain any legal strategies, theories or conclusions of appellees or their attorneys designed to assist in litigation brought by Gold Standard." Gold Standard, 801 P.2d at 911.
10. Based on the foregoing authority, the Committee finds that the County's classification of the following data elements in Mr. Dunbeck's billing statements as protected was improper: (1) the name of the case, (2) the date of the invoice, (3) the date range for which the services were rendered, (4) the general description of services rendered (e.g. legal research, telephone call, etc.), excluding the precise object or subject matter of those general services, (5) the summary of hours of legal services rendered during the period covered by the invoice, and (6) the total amount billed during that period. The County is specifically authorized to redact: (1) specific dates and the number of hours of service rendered on particular dates, (2) details regarding the subject matter of legal research, (3) the names of people spoken to and the subject matter of the conversation, (4) details regarding the subject matter of any other activity, and (5) any other items that would "disclose the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation."
11. The Committee finds that the County's decision to disclose billing statements in an unredacted form after underlying litigation has concluded has no relevance to the legal issues currently before it.
12. In addition to the authority cited above, the Committee bases its decision on the Legislature's recognition of the public's constitutional "right of access to information concerning the conduct of the public's business," the intent of the GRAMA act to "promote the public's right of easy and reasonable access to unrestricted public records," and to "favor public access when . . . countervailing interests are of equal weight." Utah Code Ann. 63-2-102 (2000).
ORDER
WHEREFORE, IT IS ORDERED THAT the decision of Wasatch County to deny Appellant access to the data elements of Mr. Dunbeck's billing statements identified above is reversed and the appeal granted as outlined above.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to 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 Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 and -502(7) (2000). 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.
Entered this 16th day of October, 2000.
BY THE STATE RECORDS COMMITTEE
Betsy L. Ross, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PACKAGING CORP. OF AMERICA Appellant, vs.
UTAH LABOR COMMISSION, Appellee.
DECISION AND ORDER
Case No. 01-10
By this appeal, Packaging Corp. of America ("PCA") seeks an order compelling the Utah Labor Commission (the "Commission") to provide a "complete copy of an OSHA complaint file, complaint number 201550514." Alan Hennebold represented the Commission. Carrie Taylor represented PCA.
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard oral argument and testimony on November 7, 2001, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act ("GRAMA") specifies that "[a]ll records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). GRAMA further provides that "[t]he disclosure of records to which access is governed or limited pursuant to . . . another state statute . . . is governed by the specific provisions of that statute . . . ." Utah Code Ann. 63-2-201(6).
2. Records properly classified as "protected" or otherwise "restricted pursuant to . . . another state statute . . ." are not public. Utah Code Ann. 63-2-201(3).
3. Utah Code Ann. 34A-6-301 states as follows: (6)(a)(i) Any employee or representatives of employees who believe that a violation of an adopted safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the division's authorized representative of the violation or danger. . . . Upon request of the person giving notice, the person's name shall not appear in the copy or on any record published, released, or made available pursuant to Subsection (7). . . . (7)(a) The division may compile, analyze, and publish, either in summary or detailed form, all reports or information obtained under this section, subject to the limitations set forth in Section 34A-6-306.
4. The Committee finds that the referenced provisions of the Utah Occupational Safety and Health Act (UOSH) only govern the name of the employee or representatives of employees in the file regarding complaint number 201550514. These provisions do not govern the entire file.
5. The remainder of the file, however, appears to be properly classified as a protected record. See Utah Code Ann. 63-2-304(9). Therefore, the remaining question is whether the "public interest favoring access outweighs the interest favoring restriction of access." In making this determination, the Committee must consider and weigh "the various interests and public policies pertinent to the classification and disclosure or nondisclosure . . . ." Utah Code Ann. 63-2-403(11)(b); see also Utah Code Ann. 63-2-202(9)(b).
6. The Records Committee is persuaded that the public interest favoring access outweighs the interests favoring restriction of access. Disclosing the OSHA complaint file, without the names of persons prohibited from disclosure by Utah Code Ann. 34A-6-301, will help PCA present credible, competent evidence at a workers' compensation administrative hearing and increase the likelihood of a just and fair outcome. Furthermore, it will assist PCA in its efforts to determine whether it is a victim of fraud or harassment in that case.
ORDER
WHEREFORE, it is ordered that Packaging Corp. of America is entitled to the complaint file it seeks (Complaint number 201550514). The Labor Commission is authorized to redact the names of the persons prohibited from being disclosed under the Utah Occupational Safety and Health Act. See Utah Code Ann. 34A-6-301(6).
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 by Utah Code Ann. 63-2-402 and -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.
Entered this 13th day of November, 2001.
BY THE STATE RECORDS COMMITTEE
Cherie Willis, Chairperson
State Records Committee
",Granted,2001-11-13T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRENT POLL, Appellant, vs.
SOUTH WEBER CITY, Appellee.
DECISION AND ORDER
Case No. 03-05
By this appeal, Brent Poll seeks access to records relating to a city council presentation from U.S. Development concerning a potential land transaction involving the city and that company.The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on April 23, 2003, now 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 Ann. 63-2-201(2). Summarizing the records withheld as those "pertaining to the proposed family activity center and fire station," South Weber City denied Mr. Poll the records he sought on the grounds that they are classified as protected. The City maintained that they are records "that would identify real property or the appraisal or estimated value of real or personal property . . . ." See Utah Code Ann. 63-2-304(7); see also Utah Code Ann. 63-2-205(2) (requiring that the notice of denial contain a description of the records or portions of the records to which access was denied). The City provided no additional information describing the records withheld. At the hearing, the City acknowledged that said records included, among other things, an appraisal, correspondence from the developer and a spreadsheet illustrating the costs of a building and site improvements.
2. Since Utah Code Ann. 63-2-304(7) specifies certain statutory exceptions to a protected status under that subsection, the focus of the hearing was whether the requested records fell within one of those exceptions. Specifically, this provision of Utah law states: The following records are protected if properly classified by governmental entity: . . . .
(7) records that would identify real property or the appraisal or estimated value of real or personal property, including intellectual property, under consideration for public acquisition before any rights to the property are acquired unless:
(a) public interest in obtaining access to the information outweighs the governmental entity's need to acquire the property on the best terms possible;
(b) the information has already been disclosed to persons not employed by or under a duty of confidentiality to the entity;
(c) in the case of records that would identify property, potential sellers of the described property have already learned of the governmental entity's plans to acquire the property; or
(d) in the case of records that would identify the appraisal or estimated value of property, the potential sellers have already learned of the governmental entity's estimated value of the property; Utah Code Ann. 63-2-304(7) (emphasis added).
3. Under letter dated April 16, 2003, Mr. Poll presented substantial evidence supporting his position that the public interest in obtaining access to the information requested outweighs South Weber City's need to acquire the property on the best terms possible. Based on the information in those materials, as supplemented by Mr. Poll's argument, the Committee finds that the records in question are improperly classified as protected.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Mr. Poll is granted. South Weber City's determination regarding the classification of these records as protected is reversed.
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. 63-2-404. 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. 63-2-403(14), the government entity herein shall comply with the order of the records committee and, if records are ordered to be produced, file: (i) a notice of compliance with the records committee upon production of the records; or (ii) 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 Records Committee may impose a civil penalty of up to $500 for each day of continuing noncompliance.
Entered this 29th day of April, 2003.
BY THE STATE RECORDS COMMITTEE
Robert Woodhead, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARK D. BERGMAN, Appellant, vs.
LABOR COMMISSION, Appellee.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The sole issue in this appeal is a request by Mr. Bergman to review the classification and release of five (5) documents by the Labor Commission which Mr. Bergman alleges contained his private information.
The State Records Committee, having reviewed the materials submitted by the parties, and having heard the oral argument and testimony of the parties on July 12, 2000, now issues the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The Government Records Access and Management Act ("GRAMA") specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2) (2000).
2. GRAMA also provides that records that are properly classified as "protected" are not public. Utah Code Ann. 63-2-201(3) (2000).
3. The State Records Committee enters these Findings of Fact and Conclusions of Law based on the authority granted to it under Utah Code Ann. 63-2-502(1)(c) (2000), which states that "the Records Committee shall . . . hear appeals from determinations of access as provided by Section 63-2-403 . . . ."
4. The first document Mr. Bergman contends was improperly released by the Labor Commission is entitled Notice of Alleged Safety/Health Hazards, dated March 13, 2000. Mr. Bergman contends the Labor Commission should not have disclosed this document to third parties because of the answer he gave to question 10 wherein he indicated he did not wish to have his name revealed to Cape Construction. The Committee reviewed this document and determined it should not have been released because access to it was "restricted pursuant to Court rule, another state statute, federal statute, or federal regulation . . . ." Utah Code Ann. 63-2-201(3)(a) (2000).
Of particular concern to the Committee was the fact that Mr. Bergman clearly expressed his intent that the information on that form should not be released, but the Labor Commission did so anyway, without notifying him of the inquiry or their response. While this notice procedure is not required by the statute, the Committee strongly recommends that agencies provide such notice where the complainant expresses his intent to prevent further disclosure as clearly as Mr. Bergman did in the case at hand.
5. Documents 2 - 5 are identified as follows: A letter from Charles G. Osman to Mark Bergman dated March 8, 2000, a fax cover sheet dated January 20, 2000, a fax cover sheet dated February 6, 2000, and the first page of a letter dated March 7, 2000 to Mark Bergman from the Labor Commission. Mr. Bergman contends these records should have been classified as protected pursuant to Utah Code Ann. 63-2-304(9)(c) in that said records were "maintained for . . . administrative enforcement purposes or audit purposes, or a discipline, a licensing, certification or registration purposes" and that the release of the records would "create a danger of depriving [him] of a right to a fair trial or impartial hearing . . . ." The Committee finds this Section inapplicable to these documents insofar as said documents do not create a danger of depriving him of a right to a fair trial or impartial hearing. Furthermore, these documents were not classified as protected by the Labor Commission.
RIGHT TO APPEAL
Either party may appeal these Findings of Fact and Conclusions of Law 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 by Utah Code Ann. 63-2-404 and 63-2-502(7) (2000). 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.
Entered this 14th day of July, 2000.
BY THE STATE RECORDS COMMITTEE
Betsy L. Ross, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JEFF SALT, JORDAN RIVER RESTORATION NETWORK, Petitioners, vs.
SALT LAKE CITY CORPORATION, Respondent.
DECISION AND ORDER
Case No. 10-14
By this appeal, Petitioners, Jeff Salt and the Jordan River Restoration Network (“JRRN”) seek expedited access to records regarding the proposed regional sports complex to be located adjacent to the Jordan River. Respondent, Salt Lake City Corporation (“SLC”), filed a cross-appeal to the decision of the Salt Lake Appeals Board granting a “fee waiver” to JRRN associated with its records request to SLC.
FACTS
On or about March 10, 2010, Petitioners made a records request of SLC pursuant to the Government Records Access and Management Act (“GRAMA”) for the above-referenced records. At the time Petitioners filed their GRAMA request, they also requested a “fee waiver” of the associated applicable fees. SLC denied the request for a waiver of fees by letter on March 16, 2010. SLC also notified Petitioners that since the request was extensive covering multiple years and requesting documents from various city departments, SLC would need additional time to fulfill the request.
On May 19, 2010, Petitioners appealed to the City Appeals Board (“Board”). The Board determined that JRRN was entitled to a “fee waiver,” but also determined extraordinary circumstances existed regarding the “voluminous” GRAMA request and granted SLC forty-five days to fulfill the request.
Petitioners have now filed an appeal with the State Records Committee (“Committee”) concerning the Board’s determination of extraordinary circumstances and granting of additional time to fulfill the GRAMA request. SLC cross-appeals the Board’s determination that Petitioners were entitled to a fee waiver. Having reviewed the materials submitted by the parties and having heard oral argument and testimony on June 10, 2010, the Committee now 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 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. As soon as reasonably possible, but no later than ten business days after receiving a written request, or five business days after receiving a written request if the requester demonstrates that expedited response to the record request benefits the public rather than the person, the governmental entity shall respond by approving the request, denying the request or notifying the requestor that because of extraordinary circumstances the request it cannot immediately approve or deny the request. Utah Code Ann. § 63G-2-204(3)(a) and (b).
3. A request for voluminous quantity of records or a record series containing a substantial number of records constitutes “extraordinary circumstances” that allow a governmental entity to delay approval or denial by an additional period of time if the governmental entity determines that due to the extraordinary circumstances it cannot respond within the time limits provided. Utah Code Ann. § 63G-2-204(4).
4. At the hearing, SLC argued it would comply with Petitioners’ GRAMA request. However, the request was three and a half pages, single spaced, seeking 21 categories of documents with very broad language. The request also covered documents from 2002 to the date of the request. Testimony was proffered that sixty (60) past and current city officials’ files would need to be searched and multiple departments would be required to review and perform extensive research to locate the records. Mr. Salt countered that time was of the essence because of the nature of the underlying issues prompting the GRAMA request, and that receiving the records in 30 to 45 days would essentially moot the purpose of the GRAMA request.
5. At the hearing it was determined that many of the documents sought by Petitioners were currently in the possession of Rick Graham. SLC brought a portion of the documents retained by Mr. Graham to the hearing with the intent of turning over said documents to Petitioners.
6. After hearing arguments from the parties, the Committee is convinced that while the scope of Petitioners’ request is considerable, many of the records responsive to the request are already maintained by Rick Graham, and that SLC’s claims of extraordinary circumstances and specified date when the records will be available pursuant to Utah Code Ann. § 63-2-204(3), are unreasonable. SLC must disclose the records that it has located which Petitioners are entitled to inspect and complete the work and disclose the remaining records that the requesters are entitled to inspect as soon as reasonably possible. Utah Code Ann. § 63G-2-204(5).
7. Concerning SLC’s cross-appeal, a governmental entity may fulfill a record request without charge, and is encouraged to do so when it determines that: (1) releasing the record primarily benefits the public rather than a person; (2) the individual requesting the record is the subject of the record; or (3) the person’s legal rights are implicated. Utah Code Ann. § 63G-2-203(4).
8. At the hearing, SLC argued that it had discretion with regard to waiving the fee for the actual cost of fulfilling a GRAMA request based on the statutory construction of Utah Code Ann. § 63G-2-203(4) and the use of the word “may” as apposed to “shall” within the statute. SLC further argued that it had adopted a “policy” wherein the city would never waive fees. SLC further argued that the Board lacked the authority to “override” SLC’s no fee waiver policy.
9. The Committee having heard testimony and having reviewed the arguments of the parties finds: (1) Petitioner presented sufficient evidence to show that the records request primarily benefits the public rather than an individual pursuant to Utah Code Ann. § 63G-2-203(4); and (2) SLC’s cross-appeal should be denied pursuant to the statutory language found in Utah Code Ann. § 63G-2-203(6).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioners Jeff Salt and the Jordan River Restoration Network is granted. Salt Lake City is directed to: (1) Turn over the requested documents currently in its possession, and (2) Provide any remaining documents in Rick Graham’s possession responsive to Petitioners’ request by June 18, 2010, or in the alternative to provide an explanation why the remaining documents cannot be provided within thirty (30) days. Additionally, the cross-appeal of Salt Lake City is denied.
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 17th day of June, 2010.
BY THE STATE RECORDS COMMITTEE
____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARK C. HAIK, Appellant vs.
TOWN OF ALTA, Appellee.
DECISION AND ORDERCase No. 04-11
By this appeal, Mark C. Haik seeks access to the meeting minutes of the Town of Alta Planning Commission and other records he maintains are in the Town of Alta's possession, as identified in records requests dated November 13, 2003, May 21, 2004, June 1, 2004 and June 17, 2004. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on September 16, 2004, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act ("GRAMA") specifies that "[a]ll records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). "Every 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, subject to Sections 63-2-203 and 63-2-204." Utah Code Ann. 63-2-201(1). Records classified as "private, controlled or protected" or otherwise "restricted pursuant to court rule, another state statute, federal statute, or federal regulation . . ." are not public. Utah Code Ann. 63-2-201(3).
2. A person making a records request to a governmental entity must identify the record with "reasonable specificity." Utah Code Ann. 63-2-204(1). If a governmental entity is not able to respond to a request within ten days after receiving a reasonably specific request, it may notify the requester that because of one of several enumerated "extraordinary circumstances," it needs additional time to respond. See Utah Code Ann. 63-2-204(3)(iv). A governmental entity may delay approval or denial by an additional period of time when it "is currently processing a large number of records requests . . . ." Utah Code Ann. 63-2-204(4). The governmental entity must then "(i) disclose the records that it has located which the requester is entitled to inspect; (ii) provide the requester with an estimate of the amount of time it will take to finish the work required to respond to the request; and (iii) complete the work and disclose those records that the requester is entitled to inspect as soon as reasonably possible . . ." Utah Code Ann. 63-2-204(5) (emphasis added).
3. After considering the evidence, the Committee orders that the Town grant Mr. Haik access to all its public Planning Commission meeting minutes during normal working hours. Since the Town offices are not open on a regular basis, the Committee grants the Town's request to limit Mr. Haik's inspection of these public records to four (4) hours per week and that this inspection period be coordinated with the Town beforehand.
4. As to Mr. Haik's requests dated May 21, 2004, June 1, 2004, and June 17, 2004, the Committee orders that the Town respond in accordance with Utah Code Ann. 63-2-204. The Committee concludes that the Town is currently processing a large number of records requests, so its response period is governed by the provisions of Utah Code Ann. 63-2-204(4)(d) and (5)(c). Specifically, the Town must disclose the records it has located which Mr. Haik is entitled to inspect, provide Mr. Haik with an estimate of the amount of time it will take to finish the work required to respond to the request and complete the work and disclose those records Mr. Haik is entitled to inspect as soon as reasonably possible.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal is granted in part and denied in part as set forth above.
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 by Utah Code Ann. 63-2-404. 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. 63-2-403(14), the government entity herein shall comply with the order of the records committee and, if records are ordered to be produced, file:
(i) a notice of compliance with the records committee upon production of the records; or
(ii) 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 Records Committee may impose a civil penalty of up to $500 for each day of continuing noncompliance.
Entered this 21st day of September, 2004.
BY THE STATE RECORDS COMMITTEE
Patricia Smith-Mansfield, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KRISTIN M. CAPPEL, Appellant, vs.
UNIVERSITY OF UTAH, Appellee.
DECISION AND ORDER
Case No. 00-06
By this appeal, Kristin M. Cappel seeks an order compelling the University of Utah to provide numerous records in the possession of the University of Utah ("University"), specifically identified as "Document Nos. 1-11 listed under 'Document Description;' Document No. 2 listed under 'Skiing File;' and Document No. 44 listed under 'Skiing File.'"
The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony of the parties on November 1, 2000, now issues the following Decision and Order.
FINDINGS OF FACT
1. Ms. Cappel is an attorney representing Mr. Pat Miller, a former employee of the University.
2. Ms. Cappel is seeking access to three types of records: (a) e-mails and handwritten notes; (b) a self-report to the NCAA; and (c) Initial Academic Eligibility Waiver Applications.
3. The University provided many records to Ms. Cappel, but denied the request that is the subject of this appeal, asserting three grounds: (a) provision of the Initial Academic Eligibility Waiver Applications would violate the Family Educational Rights and Privacy Act ("FERPA"); (b) e-mails, handwritten notes, and the draft of the self-report to the NCAA were protected under the attorney client and/or work product privilege; and (c) the draft of the self-report to the NCAA is not a record under GRAMA.
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 Ann. Section 63-2-201(2) (2000). Records that are not public are designated as either "private," "protected," or "controlled." Utah Code Ann. Sections 63-2-302, -303, -304 (2000).
2. The Committee finds that the University properly denied access to those documents it claimed to be protected under the attorney-client and/or work product privileges, including all records requested with the exception of the Initial Academic Eligibility Waiver Applications. See Utah Code Ann. Sections 63-2-304(16) to -(18) (1997).
3. The Committee finds further that the Initial Eligibility Waiver Applications were properly denied by the University as their release is prohibited by another statute (FERPA). See Utah Code Ann. 63-2-201 (8)(a) (1997).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Ms. Cappel be denied in its entirety.
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 by Utah Code Ann. Sections 63-2-404 and 63-2-502(7) (2000). 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.
Entered this 6th day of November, 2000.
BY THE STATE RECORDS COMMITTEE
Betsy L. Ross, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NICHOLE COOMBS, Petitioner, vs.
MONTICELLO CHARTER SCHOOL, Respondent.
DECISION AND ORDER
Case No. 09-05
By this appeal, Petitioner Nichole Coombs (“Coombs”) seeks access to the following records: (1) A copy of a “third party report” referenced in an executive/closed meeting of Respondent Monticello Charter School Board (“Monticello”) held on February 11, 2009; and (2) “all invoices and check stubs for legal services between January 1, 2008 and February 28, 2009 and names of those paid including how much they were paid.”
FACTS
On or about February 17, 2009, Coombs requested the following records from Monticello pursuant to the Government Records Access and Management Act: (1) A copy of the recording of the November 6, 2008 Monticello board meeting; (2) A copy of a report given at the February 11, 2009 Monticello board meeting; and (3) Copies of all invoices and check stubs for legal services performed between January 1, 2008, and February 28, 2009. Monticello Records Officer Kelli Sellers provided Coombs with the recording of the November 6, 2008 board meeting. However, Sellers denied the request for the February 11, 2009 report claiming that Monticello did not have in its possession a responsive written report and that no such record existed. Sellers also denied Coombs’ request for invoices and check stubs claiming that the records were protected because they contained attorney’s work product and privileged communication between Monticello and its attorneys pursuant to Utah Code Ann § 63G-2-305(17) and (18).
In a letter dated March 3, 2009, Coombs appealed Monticello’s denial of her records requests to Michael Smith, Chairman, Board of Trustees for Monticello. In her appeal, Coombs stated that she did not oppose Monticello redacting the name of the attorney providing services and any protected information from the records. Smith denied Coombs’ appeal in a letter reiterating the same reasons given in Monticello’s initial denial.
In a letter dated March 23, 2009, Coombs appealed Monticello’s denial to the State Records Committee (“Committee”). Prior to the Committee’s hearing, Monticello provided Coombs and the Committee with materials responsive to Coombs’ appeal, including copies of redacted invoices, bills and canceled checks between January 1, 2008, and February 28, 2009. At the hearing, the two issues that were argued by the parties before the Committee were: (1) Whether Monticello has a duty to disclose the third party report given during the executive/closed meeting of Monticello held on February 11, 2009; and (2) Whether Monticello disclosed all copies of invoices, check stubs for legal services performed between January 1, 2008, and February 28, 2009. Having reviewed the materials submitted by the parties and having heard oral argument and testimony on May 14, 2009, the Committee now 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 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. In response to a GRAMA request, a governmental entity is not required to create a record or provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code Ann. § 63G-2-201(8)(a).
3. During the hearing, Smith testified that no written record exists responsive to Coombs request for the “third party report” referenced in Monticello’s February 11, 2009 executive/closed meeting. Smith stated that the report was an oral report given by an attorney hired by Monticello and that due to cost concerns, no decision had been made as to whether a written report would be produced in the future. Therefore, based upon Smith’s testimony and pursuant to Utah Code Ann. § 63G-2-201(8)(a), the Committee finds that Monticello is not required to produce a written report because no such record exists.
4. However, Smith further stated that the executive/closed meeting was recorded consistent with the requirements of the Open Public Meetings Act. A record includes a recording that is prepared, owned, received, or retained by a governmental entity or political subdivision and all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code Ann. § 63G-2-103(22)(a).
5. After hearing testimony from the parties, the Committee is convinced that a record responsive to Coombs’ request for the “third party report” does exist in the form of the recording of the oral report taken at the February 11, 2009 executive/closed meeting. However, pursuant to Utah Code Ann. § 63G-2-305(32), transcripts, minutes, or reports of the closed portion of a meeting of a public body are protected records if properly classified by a governmental entity as provided by Utah Code Ann. § 52-4-206 of the Open and Public Meetings Act. Accordingly, the Committee finds that the recording of the closed meeting is a protected record and the Committee does not have jurisdiction to disclose the recording of a closed meeting pursuant to the statutory requirements of the Open and Public Meetings Act. See, Utah Code Ann. §§ 52-4-206(5) and -305.
6. Concerning whether Monticello disclosed all copies of invoices, check stubs for legal services performed between January 1, 2008, and February 28, 2009, Smith testified that a search responsive to Coombs’ request had been conducted and that to the best of his knowledge, all copies of the records had been provided to her after having been properly redacted.
7. Coombs acknowledged that she had received copies of invoices, check stubs for legal services performed between January 1, 2008, and February 28, 2009, but contended that documents/records responsive to her request may still exist which were not included in the records released by Monticello. Coombs also testified that if more documents were found, she would not oppose Monticello redacting private information from the records.
8. After hearing arguments from both parties and reviewing the records provided by Monticello, the Committee is not convinced that the records provided by Monticello represent a complete response to Coombs’ request. Therefore, the Committee finds there is a reasonable possibility that all records responsive to Coombs’ request have not been provided by Monticello.
9. During the hearing, the parties stipulated that certain information contained in the bills, invoices and cancelled checks may be redacted. The parties also stipulated that the date, amount paid or charged, and the name of the firm providing the legal services should not be redacted. Therefore, the Committee does not need to address the issue as to whether the information is protected pursuant to Utah Code Ann. § 63G-2-305(17) and (18).
ORDER
THEREFORE, IT IS ORDERED THAT the determination of Monticello Charter School to deny access to the recording of the “third party report” is upheld pursuant to Utah Code Ann. § 63G-2-305(32), and the appeal of Nichole Coombs as to this request is denied. Concerning Coombs’",Partially Granted,2009-05-20T00:00:00Z "
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CATHY MCKITRICK, REPORTER FOR THE SALT LAKE TRIBUNE, Petitioner, vs.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 09-14
By this appeal, Petitioner, Cathy McKitrick, Government Reporter for the Salt Lake Tribune (“Tribune”), seeks access to all correspondence between Utah Attorney General, Mark Shurtleff and U.S. Attorney General Eric Holder since January 1, 2009. Specifically, the Tribune is seeking access to a letter dated March 23, 2009 from Mr. Shurtleff to Mr. Holder regarding U.S. Attorney Brett Tolman.
FACTS
On or about June 15, 2009, Ms. McKitrick, on behalf of the Tribune, submitted a request for records to Respondent, the Utah Attorney General’s Office (“AG’s Office”) asking for the above referenced documents. On June 29, 2009, Paul Murphy responded to the request by providing some documents but denying access to the March 23, 2009 letter from Mr. Shurtleff to Mr. Holder. The Tribune appealed this denial and on July 16, 2009, Chief Deputy Attorney General, Raymond Hintze, denied the Tribune’s request pursuant to Utah Code Ann. § 63G-2-305(25).
The Tribune now appeals to the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties including arguments submitted by third party intervener the U.S. Attorney Office, and having convened on September 10, 2009, a hearing to hear oral argument and testimony, now 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 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, other than personnel evaluations, that contain a personal recommendation concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal privacy, or disclosure is not in the public interest, are protected if properly classified by the governmental entity. Utah Code Ann. § 63G-2-305(25).
3. The AG’s Office argued that the letter requested by the Tribune contains “personal recommendations” because Mark Shurtleff in this letter makes certain recommendations as to actions U.S. Attorney General Holder could take with regard to U.S. Attorney, Brett Tolman. However, the regular meaning of “personal recommendations” seems to connote a positive recommendation concerning an individual based upon personal experience. The Committee is not convinced, nor was sufficient evidence presented after reviewing the March 23, 2009 letter, that Mr. Shurtleff was making a “personal recommendation” to Mr. Holder about Mr. Tolman.
4. Additionally, the AG’s Office further argued that as a result of Mr. Shurtleff’s letter to Mr. Holder, the vital relationship between the state and U.S. Attorney’s office would be damaged and release of the contents of the letter would not be in the “public interest.” However, simply because there is a perceived potential that release of the letter would damage the relationship between the AG’s Office and the U.S. Attorney’s Office, does not by itself outweigh the public’s constitutional right of access to information concerning the conduct of the public’s business. See, Utah Code Ann. § 63G-2-102(1)(a). It is the intent of the Legislature to specify those conditions under which the public interest in allowing restrictions on access to records may outweigh the public’s interest in access. Utah Code Ann. § 63G-2-102(3)(b). Therefore, the burden is placed upon the governmental entity to specify which section of GRAMA the Legislature specified allowing restrictions to access, or at the very least, demonstrate a general “public good” restricting access. See, Utah Code Ann. § 63G-2-102(2). We find that the AG’s Office has failed to meet its burden in this regard.
5. It was further argued that the release of the contents of the letter would clearly be an unwarranted invasion of Mr. Tolman’s personal privacy and, therefore, the contents of the record should be protected pursuant to Utah Code Ann. § 63G-2-305(25). However, even assuming the document contained a discussion of Mr. Tolman’s performance as a U.S. Attorney, because of the very public nature of his position as U.S. Attorney; it could be found that this information is in the public interest and not a clearly unwarranted invasion of his personal privacy.
6. After hearing argument and reviewing the materials submitted by the parties, and based upon a reading of the plain language of Utah Code Ann. § 63G-2-305(25), the Committee is not convinced Subsection –305(25) operates to make the record requested a protected document. Insufficient evidence was presented to demonstrate that the record was a “personal recommendation” or that the release of the contents of the record would be a “clearly unwarranted” invasion of privacy and/or not in the public interest.
7. The AG’s Office also argued that access should be restricted pursuant to Utah Code Ann. § 63G-2-201(3)(b), because the common law recognizes “executive privilege” and/or a “deliberative process privilege” for documents created within the executive branch of government. However, the cases proffered by the AG’s office supporting such position clearly predate the enactment of GRAMA. “[W]here a statute’s plain language or its structure and purpose demonstrate a legislative intent to preempt an area of the law, the statute becomes the only source of law in that area, and the development and application of common law principles necessarily ceases” Gottling v. P.R. Inc., 2002 UT 95, 61 P.3d 989, ¶ 8. An examination of the plain language and structure of GRAMA demonstrates the Utah Legislature’s intention to have GRAMA preempt this area of law. Although Utah Code Ann. § 63G-2-201(3)(b) and (6)(a) refer to the non-disclosure of a record pursuant to a “court rule,” the listing of “court rule” with state statutes, federal statutes, and federal regulations in these sections infers that the Legislature intended “court rules” to mean rules promulgated for the governance of courts and not the incorporation of common law court rulings into GRAMA. After hearing arguments by the parties, the Committee finds the plain language of Utah Code Ann. § 63G-2–201 to be clear in its intent and accordingly finds the AG Office’s argument unpersuasive in this matter.
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Cathy McKitrick, Government Reporter for the Salt Lake Tribune is upheld and the office of the Utah Attorney General is hereby ordered to release said public record to Petitioner within ten (10) days. However, pursuant to Utah Code Ann. § 63G-2-303(1)(a)(ix) and § 63G-2-302(1)(g), the home address of U.S. Attorney General, Eric Holder shall be redacted prior to the release of said record.
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",Granted,2009-08-17T00:00:00Z "
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LAURA HANCOCK, REPORTER FOR THE DESERET NEWS, Petitioner, vs.
UTAH TRANSIT AUTHORITY, Respondent.
DECISION AND ORDER
Case No. 10-13
By this appeal, Petitioner, Laura Hancock, reporter for the Deseret News, seeks to appeal a determination by Respondent, the Utah Transit Authority (“UTA”), that fifty-cents per-page for copies of records is a “reasonable fee.”
FACTS
On or about May 15, 2010, Ms. Hancock submitted a request to UTA for salary and other compensation records for UTA employees who earn more than $100,000.00 per year in salaries and/or compensation from the previous 5 years. UTA responded on May 21, 2009, indicating that the records would be produced upon payment of $61.00 for copies and $194.58 for staff time to fulfill the request. Since making her initial request, Ms. Hancock made subsequent requests narrowing the scope and/or refining her original request and asking for a fee waiver by UTA. The fee waiver request was denied by UTA’s records officer. Ms. Hancock appealed the decision to the UTA Board of Trustees, who thereafter upheld UTA’s records officer’s fee determination.
Ms. Hancock now appeals to the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on June 10, 2010, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (“GRAMA”) specifies that a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code Ann. § 63G-2-203(1). This fee shall be approved by the governmental entity’s executive officer. Id.
2. In the case of fees for a record that is the result of computer output other than word processing, the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information for a particular user may be charged. Utah Code Ann. § 63G-2-203(2)(a)(iii).
3. A governmental entity may fulfill a record request without charge, and is encouraged to do so when it determines that: (1) releasing the record primarily benefits the public rather than a person; (2) the individual requesting the record is the subject of the record; or (3) the person’s legal rights are implicated. Utah Code Ann. § 63G-2-203(4).
4. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code Ann. § 63G-2-203(4), may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code Ann. § 63G-2-205. See, Utah Code Ann. § 63G-2-203(6). The adjudicative body hearing the appeal “has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied,” Utah Code Ann. § 63G-2-203(6)(b).
5. At the hearing, UTA argued that it incurred actual costs of at least $255.00 because it spent several hours programming, compiling, formatting, and packaging Ms. Hancock’s requests. UTA further argued that its fee schedule was reasonable as to the amount charged for copying records and had been properly adopted by the governmental entity. Because of the significant cost and time associated with fulfilling Ms. Hancock’s requests, UTA determined that it was lawful to require Ms. Hancock to pay the estimated fees before beginning to process her request pursuant to Utah Code Ann. § 63G-2-203(8).
6. UTA also argued that the language of Subsections –203(1) and (2) and the use of the word “may” denotes the Utah Legislature’s intent that governmental entities have discretionary authority concerning whether records should be provided without charge. Therefore, UTA was not statutorily obligated to provide the records requested by Ms. Hancock without charge even if she met all the conditions of Utah Code Ann. § 63G-2-203(4).
7. Ms. Hancock argued that UTA’s copy charge of fifty-cents per page was unreasonable and did not reflect the “actual cost” of producing a “copy” of the records she requested, and that such an excessive charge per page was an effective denial of access to the records she requested.
8. Having reviewed the submissions of the parties and having heard argument at the hearing of this matter, the Committee finds that based upon the circumstances of the present case and a preponderance of the evidence; there was not an effective denial of access to records. Utah Code Ann. § 63G-2-203.
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Laura Hancock, reporter for the Deseret News, is denied pursuant to Utah Code Ann. § 63G-2-203 and 63G-2-402.
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 17th day of June 2010.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, Petitioner, vs.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
ORDER OF CONTINUANCE
Case No. 11-06
The above matter having come before the State Records Committee (“Committee”) for oral argument and testimony on May 12, 2011, the parties appearing and the Committee having received the pleadings, evidence and documents from the Respondent, the Utah State Attorney General’s Office for in camera review, and such being too numerous to review in its entirety during the hearing on this matter, IT IS HEREBY;
ORDERED: that the in camera review and the hearing of this matter are hereby continued until June 9, 2011 at 9:30 A.M., and
ORDERED: that Respondent organize, Bates stamp, provide a privilege log for the documents, and return them to the Executive Secretary for the Committee to allow the documents to be securely held at the State Archives Building for further in camera review by individual Committee members.
This Order was made without objection and with the consent of the parties.
Entered this 19th day of May, 2011
BY THE STATE RECORDS COMMITTEE
____________________________________
Betsy Ross, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LORI PRICHARD/KSL TELEVISION, Petitioner, vs.
DIVISION OF FACILITIES CONSTRUCTION AND MANAGEMENT OF THE DEPARTMENT OF ADMINISTRATIVE SERVICES, STATE OF UTAH, Respondent.
DECISION AND ORDER
Case No. 10-2
By this appeal, Petitioner, Lori Prichard, Anchor/Investigative Reporter with KSL Television (“Petitioner”), seeks access to dates and times for state employees working at the Heber Wells Building, a state building administered by Respondent, Division of Facilities and Management (“DFCM”), via scans of their security access cards from September 1, 2008 through March 31, 2009.
FACTS
On November 11, 2009, Ms. Prichard made a Government Records Access and Management Act (“GRAMA”) request to Bruce Whittington, Assistant Director of DFCM. Ms. Prichard requested “[d]ate and time employee (excluding security guard) working at Heber Wells Building scans their security access card; entryway being accessed (parking garage, elevator or door); first and last name of employee; group name (or state agency with whom state worker is employed).”
In a letter dated November 18, 2009, Mr. Whittington denied Ms. Prichard’s request stating that the records “are classified as protected records and disclosure could jeopardize the life or safety of an individual or jeopardize the security of governmental property.” Mr. Whittington also attached letters from Captain Alan Workman of the Utah Highway Patrol, and Jeff Rose, Workplace Security Consultant for the Utah Division of Risk Management expressing concerns about disclosure of the requested information. Captain Workman stated in his letter that the data “would provide an unnecessary risk that could have the potential of compromising the integrity of the security system and overall facility security.” Mr. Rose stated in his letter that the information would “show a pattern of when the building is occupied and not occupied” and if “put into the wrong hands, could become a life or death situation.”
Ms. Prichard filed an appeal of Mr. Whittington’s decision, and in a letter dated December 17, 2009, Ken Hansen, GRAMA Appeals Officer for the Utah Department of Administrative Services denied Ms. Prichard’s appeal. Ms. Prichard now appeals to the Utah State Record Committee (“Committee”).
On February 4, 2010, Counsel for DFCM submitted to the State Records Committee a Motion to Dismiss “for lack of subject matter” under UCA § 63G-2-106 contending the records sought were records of “security plans, passes, security procedures and building and public works designs related to ongoing security measures.”
The Committee having reviewed the arguments submitted by the parties, including DFCM’s Motion to Dismiss, and having convened on February 11, 2010 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. However, records of a governmental entity or political subdivision regarding security measures designed for the protection of persons or property, public or private, are not subject to the provisions of GRAMA. Utah Code Ann. § 63G-2-106.
3. DFCM filed a Motion to Dismiss Petitioner’s appeal on the basis that GRAMA provides no jurisdiction for the Committee to order the release of records regarding “a security system owned and managed by [DFCM].” DFCM argued that if the records were provided, “it would reveal part of the security plans, passes, security procedures, and building and public works designs related to ongoing security measures of the State of Utah.” DFCM noted that the impact of an adverse decision against DFCM “may set a precedent that can affect the life, safety and property protection, for up to approximately 200 DFCM managed facilities, the Utah State Capitol Hill Complex, and numerous County, City, School District and Special District facilities throughout the State of Utah.”
4. Petitioner argued that the purpose of requested information was simply to determine whether state employees were working their required hours, and not to compromise DFCM security procedures. Petitioner also claimed that disclosure of the information would not jeopardize the safety of individuals.
5. After hearing arguments and reviewing the materials submitted by the parties, the Committee finds DFCM’s arguments persuasive, and that the requested records are records regarding security measures as defined in Utah Code Ann. § 63G-2-106. The records are generated by the security system in place at the Heber Wells Building. The purpose of these security records is not to determine whether state employees are working their designated hours, but to regulate secured access to the Heber Wells Building by authorized individuals. Disclosure of the requested records could also disclose DFCM’s security procedures. See Utah Code Ann. § 63G-2-106(4). Accordingly, the security measures are designed for the protection of persons or property, public or private, and therefore are not subject to GRAMA.
ORDER
THEREFORE, IT IS ORDERED THAT: the Motion to Dismiss filed by Respondent, Division of Facilities and Management is granted, and the appeal of Petitioner Lori Prichard, Anchor/Investigative Reporter with KSL Television is denied because the requested records are records regarding security measures pursuant to Utah Code Ann. § 63G-2-106.
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 18th day of February 2010.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, REPORTER FOR THE CITY WEEKLY, Petitioner, vs.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
ORDER OF CONTINUANCE
Case No. 10-10
The above matter having come before the State Records Committee (“Committee”) for oral argument and testimony on May 13, 2010, the parties appearing and the Committee having received the pleadings, evidence and documents from the respondent, Utah Attorney General’s Office for in camera review, and such being too numerous to review in its entirety during the hearing of this matter, IT IS HEREBY;
ORDERED: that the in camera review and the hearing of this matter are hereby continued until May 24, 2010 at the hour of 1:00 p.m.
ORDERED: that the documents received by the Committee shall be securely held at the State Archives Building to effectuate the in camera review; it is further
ORDERED that at the May 24, 2010 meeting of the Committee the hearing on this matter shall resume and the Committee will conclude its in camera review of the documents.
This Order was made without objection and with the consent of the parties.
Dated this 24th day of May 2010.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TAB L. UNO, Petitioner, vs.
SALT LAKE CITY SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 10-18
By this appeal, Petitioner, Tab L. Uno, seeks access to records from Respondent, the Salt Lake City School District (“District”).
FACTS
On March 18, 2010, Uno made a request to the District pursuant to the Government Records Access and Management Act (“GRAMA”), for a “list of school community chairs of the schools in the [District], including their names, addresses, and telephone numbers, and e-mail addresses, if available, and the schools they represent.” On March 24, 2010, the District provided a list of the schools in the District, with a listing of the current community chairs for each school. The District did not disclose the home addresses, home telephone numbers, or personal e-mail addresses for the individuals because the District had classified them as “private” pursuant to Utah Code Ann. § 63G-2-302(1)(f).
On April 13, 2010, Uno filed an appeal of the District’s decision to Kristi Swett, Board President of the District. In his appeal, Uno claimed that since the School Community Chairs were volunteers as opposed to employees, the District could not classify their personal information as “private,” pursuant to Utah Code Ann. § 63G-2-302(1)(f).
In a letter dated May 11, 2010, Ms. Swett and District Board Vice President, Heather Bennett, denied Uno’s appeal. The letter stated that even though the community chairs were volunteers, “[w]e believe that their home addresses, home and mobile telephone numbers, and personal e-mail addresses are entitled to the same protection afforded employees and officers under GRAMA.”
Uno now appeals to the State Records Committee (“Committee”). The Committee having reviewed the evidence and arguments submitted by the parties, and having heard oral argument and testimony on September 9, 2010, 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. Utah Code Ann. § 63G-2-302(1)(f) states that “employment records concerning a current or former employee of, or applicant for employment with, a governmental entity that would disclose that individual’s home address, home telephone number…” is a private record.
3. Uno argued that since the community chairs served as unpaid volunteers for the District, they could not be considered “employees” of the District, and therefore, could not receive the protections offered in Utah Code Ann. § 63G-2-302(1)(f).
4. The District claimed that even though the community chairs were unpaid volunteers, they should be considered “employees.” The District noted that District volunteers “are treated like employees for almost all purposes except compensation,” including having criminal background checks, workers’ compensation coverage, employee indemnification, and liability protection pursuant to Utah Code Ann. § 67-20-3.
5. Utah Code Ann. § 67-20-2(3)(a) defines a "volunteer" as "any person who donates service without pay or other compensation except expenses actually and reasonably incurred as approved by the supervising agency." A “volunteer is considered a government employee” for the purposes of receiving workers’ compensation medical benefits, the operation of motor vehicles, and liability protection and indemnification normally afforded paid government employees pursuant to Utah Code Ann. § 67-20-3(1).
6. Considering the fact that a volunteer may be considered a government employee, pursuant to Utah Code Ann. § 67-20-3, it is logical to also conclude that a volunteer should also be considered an employee under Utah Code Ann. § 63G-2-302(1)(f). Otherwise, a volunteer’s private information concerning a volunteer’s home address, home telephone number, Social Security number, insurance coverage, or marital status, would illogically have less protection than a public employee under GRAMA. Accordingly, we find that the District properly classified the volunteer community chairs’ home addresses, home and mobile telephone numbers, as private records, pursuant to Utah Code Ann. § 63G-2-302(1)(f).
7. During the hearing, it was noted that personal e-mail addresses are not listed as private information under Utah Code Ann. § 63G-2-302(1)(f). However, a review of Utah Code Ann. § 63G-2-301(2)(b) shows that a business address, business e-mail address, and business telephone number, are public unless specifically excepted from disclosure pursuant to Utah Code Ann. § 63G-2-201(3)(b) and (6)(a).
8. Given the fact that GRAMA specifies that a business address, business e-mail address, and/or business telephone number should be made public in order to allow “the public to contact an employee or officer of the governmental agency,” as opposed to disclosing the employee’s home address or home phone number as a method of contact, it follows that there is also an expectation of privacy for an employee’s personal e-mail address. Therefore, the Committee finds that the District properly withheld the personal e-mail addresses of the community chairs because an e-mail address is a record “containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.” See, Utah Code Ann. §§ 63G-2-301(1) and –302(2)(d). Because of the technology advances in today’s society, a personal e-mail address should receive the same type of privacy protection afforded to a home telephone number.
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Tab L. Uno is denied because the requested records were properly classified by the Salt Lake City School District as “private,” pursuant to Utah Code Ann. §§ 63G-2-302(1)(f) and –302(2)(d).
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.
Dated this 16th day of September, 2010.
____________________________
BETSY ROSS, Chair pro-tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NATE CARLISLE, SALT LAKE TRIBUNE, Petitioner, vs.
SALT LAKE CITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 11-03
By this appeal, Petitioner, Nate Carlisle, reporter for the Salt Lake Tribune, seeks access to “all materials,” including video of the confrontation and shooting, police reports, narrative reports, and photographs related to an August 27, 2010 shooting of Brandon Barrett.
FACTS
On or about September 23, 2010, Mr. Carlisle made a records request of Respondent, Salt Lake Police Department (“SLCPD”), pursuant to the Government Records Access and Management Act (“GRAMA”) for the above-referenced records. Mr. Carlisle asked for:
[A]ll materials related to the Aug. 28, 2010, officer-involved shooting in which Brandon Barrett confronted police and was killed, including but not limited to video of the confrontation, police reports, narrative reports and photographs.
In response, SLCPD provided the initial contact report, photographs, and a redacted surveillance video deleting the “death images” showing the actual shooting and death of Mr. Barrett claiming that its release would be an unwarranted invasion of personal privacy. SLCPD also denied Mr. Carlisle’s request for “narrative reports,” indicating that such a request lacked “reasonable specificity” pursuant to Utah Code Ann. § 63G-2-201(7)(b).
Mr. Carlisle appealed the denials to the Salt Lake City Mayor’s Records Appeals Board and on November 5, 2010, the Board denied the appeal. Mr. Carlisle has now filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the materials submitted by the parties and having heard oral argument and testimony on February 17, 2011, 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. Every 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, subject to Sections, 63G-2-203 and 204. See Utah Code Ann. § 63G-2-201(1)
3. A governmental entity shall provide a person with a certified copy of a record if the person identifies the record with reasonable specificity. See, Utah Code Ann. § 63G-2-201(7)(b).
4. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private if properly classified by the governmental entity pursuant to Utah Code Ann. § 63G-2-302(2)(d).
5. At the hearing, SLCPD argued the video footage containing “death images” requested by Mr. Carlisle were private because publication of the shooting death of Mr. Barrett would be a clearly unwarranted invasion of privacy for the family of Mr. Barrett pursuant to Utah Code Ann. § 63G-2-302(2)(d). However, at the hearing the parties agreed to allow Mr. Carlisle within the next 30 days to review the footage for his news story, but disallowing the release of video to maintain the video’s private classification. Based upon this agreement between the parties, Mr. Carlisle withdrew his appeal to the Committee of this issue.
6. SLCPD also argued at the hearing that it denied Mr. Carlisle’s request because his request was not reasonably specific, pursuant to Utah Code Ann. § 63G-2-201(7)(b). SLCPD claimed that his request for “all records” was too broad and could not easily be determined. SLCPD also claimed that it was not in possession of records identified by the term “narrative report” and the records manager who was familiar with the records did not understand which specific records were being sought by Mr. Carlisle. When asked, SLCPD testified that it believed all records responsive to Mr. Carlisle’s request would fill “1 ½ banker’s boxes.”
7. Mr. Carlisle argued that his request was reasonably specific because he referred to a specific incident/event. He also stated that it was impossible for him to know which records to request from SLCPD when he did not know exactly what records were in the possession of SLCPD related to the shooting. Therefore, he made his request for “all materials related to the Aug. 28, 2010, officer-involved shooting” but not limited to “video of the confrontation, police reports, narrative reports and photographs.”
8. After hearing arguments from both parties, the Committee finds that based upon a preponderance of the evidence, SLCPD failed to show that Petitioner’s GRAMA request lacked reasonable specificity. Considering the limited number of documents regarding the officer involved shooting, the Committee finds that the request was specific enough that SLCPD’s records manager should be able to understand which records are being sought and determine what records are responsive to the request.
ORDER
THEREFORE, IT IS ORDERED THAT Petitioner’s appeal is granted and SLCPD shall, within thirty (30) days, provide Petitioner access to records classified as public records regarding the August 27, 2010 shooting, and provide Petitioner with a privilege log of all records classified as “non-public records.”
IT IS FURTHER ORDERED THAT pursuant to the stipulation between the parties, SLCPD shall allow Mr. Carlisle within thirty (30) days of this order, to review the complete security camera footage of the shooting while continuing to maintain the private classification of the “death images.”
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 24th day of February, 2011.
BY THE STATE RECORDS COMMITTEE
____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROBERT RESENDES, Petitioner, vs.
SEVIER SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 10-8
By this appeal, Petitioner, Robert Resendes seeks access to records of a household application for free and reduced price school lunch under the federal school lunch program.
FACTS
Mr. Resendes is the biological, but non-custodial parent of minor children attending school within the Sevier County School District (“District”). Additionally, Mr. Resendes does not reside in the same household as his minor children.
On or about July 31, 2009 Mr. Resendes made a Government Records Access and Management Act (“GRAMA”) request for 2009-10 school year household application for free and reduced price school lunch. His GRAMA request was denied by Karen Pace in an email dated August 12, 2009, indicating that the application was a protected record and could not be released. Mr. Resendes asked for a clarification of the denial, which was provided to him on August 20, 2009. In the denial letter, Ms. Pace indicated the basis of the denial of Mr. Resendes’ GRAMA request was Utah Code Ann. §§ 63G-2-201 (3)(b) and 63G-2-302(2)(a), and also that the records were restricted by a federal statute or regulation, specifically 7 C.F.R. 245.6(k).
Mr. Resendes appealed the denial to Myron Mickelsen, Assistant Superintendent for the District, who denied Mr. Resendes’ appeal stating: (1) Mr. Resendes’ former spouse was actually the subject of the records, and not Mr. Resendes’ minor children; (2) Access to the records was restricted by federal statute or regulation and; (3) Even if access to the record were not restricted by federal statute or regulation, the records were properly classified as “private” pursuant to GRAMA and therefore, his GRAMA request should be denied.
Mr. Resendes now appeals to the Utah State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on April 8, 2010, 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. Upon request, and except as provided in Subsection (11)(a), a governmental entity shall disclose a private record to the subject of the record or the parent or legal guardian of an unemancipated minor who is the subject of the record, Utah Code Ann. § 63G-2-202(1)(b).
3. However, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, including records for which access is governed or restricted as a condition of participation in a state or federal program or for receiving state or federal funds, are not public records. Utah Code Ann. § 63G-2-201(3)(b).
4. At the hearing, Mr.Resendes argued that he should have access to the records because the subjects of the records were his children. Mr. Resendes further argued that the applications were actually state records and federal statutes and regulations did not apply. He also noted that he had previously requested and received copies of the applications in the past.
5. The District’s counsel argued that while applications for the free and reduced price school lunch program were provided by the District, the program itself was subject to federal regulation, pursuant to 7 C.F.R. 245.6(k), and that the District had a duty to comply with federal regulations prohibiting disclosure of the records to Mr. Resendes. Counsel stated that the federal regulation specifically limited who could consent to release of the records to parents and/or guardians living in the same household and therefore, Mr. Resendes could not claim a right to receive the records based upon federal law. Counsel claimed that since Mr. Resendes’ former spouse was required to disclose her financial information and qualification were based upon her information, she was actually the subject of the records. Finally, counsel contended that even if the records requested by Mr. Resendes were subject solely to GRAMA and not federal regulation, the records would were still properly classified as “private,” pursuant to Utah Code Ann. § 63G-2-302(1)(a). Concerning the previous applications disclosed to Mr. Resendes, counsel stated that this was an error on the part of the District and they should not be required to perpetuate an error contrary to law.
6. The Committee having reviewed the submissions of the parties and having heard argument at the hearing of this matter finds that based upon the circumstances of the present case, the District’s denial of Mr. Resendes GRAMA request was proper. The Committee is persuaded the records requested by Petitioner are records to which access is restricted, pursuant to a federal regulation for which access is governed or restricted as a condition of participation in federal programs, pursuant to Utah Code Ann. § 63G-2-201(3)(b).
According to federal regulation, only “a parent or guardian who is a member of the child’s household for purposes of the free and reduced price meal or free milk application may give consent to the disclosure of free and reduced price eligibility information.” 7 C.F.R. §245.6(i). Mr. Resendes is not the subject of the records and is not a member of his child’s household and therefore, he does not have a right to access the records.
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Robert Resendes is denied.
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 15th day of April 2010.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRUCE FUNK, Petitioner, vs.
EMERY COUNTY, Respondent.
DECISION AND ORDER
Case No. 06-09
By this appeal, Bruce Funk seeks access to records of executive sessions held by the Emery County Commission. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on September 14, 2006, now 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 Ann. 63-2-201(2). Records that are not public are designated as either private, protected, or controlled. See Utah Code Ann. 63-2-302, -303 and -304. Emery County denied Mr. Funk the records he seeks on the grounds that said records are protected.
2. The Committee is persuaded that the records of closed sessions are properly classified as protected, under Utah Code Ann. 63-2-304(32) and should not be released.
3. The Emery County Commission has therefore properly classified the records in question as protected under Utah Code Ann. 63-2-304(32).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Bruce Funk is denied. Emery County's determination regarding the classification of these records is affirmed.
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. 63-2-404. 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.
Entered this 21st day of September, 2006.
BY THE STATE RECORDS COMMITTEE
Patricia Smith Mansfield, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KENNETH R IVORY, Petitioner, vs.
SUMMIT COUNTY, Respondent.
DECISION AND ORDER
Case No. 07-05
By this appeal, KENNETH R. IVORY seeks access to records of the Summit County Attorney's Office relating to Brody Taylor, John Moon & Stacy Headrick. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on April 12, 2007, now 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 Ann. 63-2-201(2). Records that are not public are designated as either "private," "protected," or "controlled." See Utah Code Ann. 63-2-302, -303 and -304. The County Attorney denied Mr. Ivory the records he seeks on the grounds that said records are the subject of ongoing or potentially ongoing investigation and therefore, protected per Utah Code Ann 63-2-304(9).
2. The Committee is persuaded that the records in question were inappropriately classified as protected under Utah Code Ann 63-2-304(9)(a) and there is insufficient evidence of an ongoing investigation(s). Release of the records could not reasonably be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes.
3. The Committee is persuaded that portions of the records Petitioner seeks are public, but may include information that is private, protected or controlled. Another statute(s) according to UCA63-2-201(3)(b) may govern access to these records. Summit County Attorney should review the records primary and any secondary classifications and insure the proper classification is applied to the records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Kenneth R. Ivory is affirmed in part. The Summit County Attorney is directed to review and properly classify the documents requested by Petitioner. Said review is to be completed and a response provided to the Petitioner within 10 days.
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. 63-2-404. 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.
Entered this 19th day of April 2007.
BY THE STATE RECORDS COMMITTEE
Carl Albrecht, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WILLIAM H. DOUTIS, JR., Petitioner, vs.
DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 06-11
By this appeal, William H. Doutis, Jr., seeks access to records associated with his correctional history held by the Department of Corrections and waiver of the fees for obtaining said records. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on November 9, 2006, now 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 Ann. 63-2-201(2). Records that are not public are designated as either "private," "protected," or "controlled." See Utah Code Ann. 63-2-302, -303 and -304. The Department of Corrections denied Mr. Doutis the records he seeks on the grounds that said records are "controlled" and/or "protected." The Department of Corrections further denied the fee waiver requested by Mr. Doutis.
2. The Committee is persuaded that under Utah Code Ann 63-2-203(2)(a) and 203(2)(b) the fee charged to Mr. Doutis is valid and Respondent may charge a reasonable fee. The Committee is persuaded that as the actual fees in the immediate matter exceeds the amount of $50.00, Respondent has the discretion to, and may require the payment of fees before processing petitioners request per Utah Code Ann 63-2-203(8). The Committee is further persuaded that the records associated with Petitioner's "Correctional History" are "private", "protected" and/or "controlled" records under Utah Code Ann 63-2-302, -303 and -304 and the Department of Corrections has properly denied Petitioner access to said "controlled" and "protected" records.
3. The Utah Department of Corrections has therefore properly denied the Petitioner access to said records under Utah Code Ann 63-2-303 and 63-2-304(12).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Mr. Doutis is denied as to the access of "protected" and "controlled" records per Utah Code Ann 63-2-303 and -304(12) also as to the waiver of fees per Utah Code Ann 63-2-203(2)(a), -203(2)(b), and -203(8).
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. 63-2-404. 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.
Entered this 14th day of November, 2006.
BY THE STATE RECORDS COMMITTEE
Patricia Smith Mansfield, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LINDA HOUSKEEPER, Petitioner, vs.
UTAH COUNTY ATTORNEY’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 11-01
By this appeal, Petitioner, Linda Houskeeper, seeks records from Respondent, the Utah County Attorney’s Office (“Respondent”).
FACTS
On May 8, 2009, [redacted], filed a petition requesting expungement of his court records. After holding two hearings, Judge Mary T. Noonan ordered [redacted]'s records to be expunged pursuant to the Utah Expungement Act.
On June 21, 2010, Ms. Houskeeper, made a request pursuant to the Government Records Access and Management Act (“GRAMA”) for “[a]ll records, documents, physical evidence, video recordings, notes, legal brief, etc. on the case of #991405159, State of Utah vs. [redacted] – both juvenile and adult.” Respondent denied Ms. Houskeeper’s request and on August 24, 2010, the Utah County Commission affirmed the denial.
Ms. Houskeeper appealed to the Utah State Records Committee (“Committee”). A hearing was held on November 18, 2010. At the hearing, it was determined that further briefing was necessary concerning the expungement order. Accordingly, without objection and with the consent of the parties, the Committee issued an order on November 29, 2010 for the parties to submit briefing regarding the relevance of the [redacted] expungement order to Ms. Houskeeper’s appeal. After having reviewed the evidence and arguments submitted by the parties, and having heard oral argument and testimony on January 13, 2011, the Committee now 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 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. A record is public unless otherwise expressly provided by statute. Utah Code Ann. § 63G-2-201(2).
3. The disclosure of a record to which access is governed or limited pursuant to another state statute is governed by the specific provisions of that statute. Utah Code Ann. § 63G-2-201(6)(a). GRAMA applies to records governed or limited pursuant to another state statute insofar GRAMA “is not inconsistent with the statute, rule, or regulation.” Utah Code Ann. § 63G-2-201(6)(b).
4. According to the Utah Expungement Act, a government agency or official may not divulge identifying information regarding the petitioner for an expungement, contained in a record of arrest, investigation, detention, or conviction after receiving an expungement order “[u]nless ordered by a court to do so.” Utah Code Ann. § 77-40-108(5).
5. Sufficient credible evidence was presented that Respondent received a copy of the [redacted] expungement order. Therefore, Respondent is under an obligation to not divulge identifying information about [redacted] regarding his arrest, investigation, detention, or conviction unless “ordered by a court to do so,” pursuant to Utah Code Ann. § 77-40-108(5). Accordingly, pursuant to Utah Code Ann. § 63G-2-201(6) and the Utah Expungement Act, the Committee does not have the authority to order the release of Respondent’s records regarding [redacted].
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner Linda Houskeeper is denied pursuant to Utah Code Ann. § 63G-2-201(6)(a), because disclosure of these records is governed by the Utah Expungement Act.
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
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, REPORTER FOR THE CITY WEEKLY, Petitioner, vs.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 09-15
By this appeal, Petitioner, Eric Peterson, a reporter for the Salt Lake City Weekly (“Peterson”), seeks access to the following: (1) Internal documents, memos, or E-mails from Respondent, the Utah Attorney General’s Office (“AG’s Office”) that may have been sent between the AG’s Office and the Utah Division of Consumer Protection regarding “Mentoring of America” and its member companies; and (2) Any E-mails, files, or documents from within the AG’s Office regarding Mentoring of America.
FACTS
On or about March 16, 2009, Peterson submitted a request for records to the AG’s Office asking for the above referenced documents. Blaine Ferguson, Chief of the Commercial Enforcement Division of the AG’s Office, partially granted Peterson’s request by providing him with copies of non-litigation records. However, records deemed to be “litigation-related” were denied pursuant to Utah Code Ann. § 63G-2-305(16) through (18). Peterson was also denied access to documents/records of certain drafts and handwritten notes.
Peterson appealed the partial denial to Kirk Torgensen, Chief Deputy at the AG’s Office. On April 8, 2009, Mr. Torgensen denied Peterson’s appeal reaffirming the basis cited in the previous denial. Peterson filed a notice of appeal to the State Records Committee (“Committee”) and an initial hearing was held on Thursday, July 9, 2009. At the July 9, 2009 hearing, oral arguments were heard from the parties and certain documents were submitted by the AG’s Office for an in camera review by the Committee. The hearing was continued to allow a complete review of the documents. See, Peterson v. Utah Attorney Gen.’s Office, State Records Committee Order No. 09-09. After having determined that a “Bates” stamp was needed in order to properly identify each document, a second order of continuance was granted on August 13, 2009. See, Peterson v. Utah Attorney Gen.’s Office, State Records Committee Order No. 09-10. At a hearing held on September 10, 2009, the Committee completed its in camera review of the documents, ruled upon all remaining issues, and now 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 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. The Committee has jurisdiction to hear appeals based upon Utah Code Ann. § 63G-2-402(2) which states: “Any person aggrieved by a determination of the chief administrative officer of a governmental entity under this chapter, including persons who did not participate in the governmental entity’s proceeding, may appeal the determination to the records committee as provided in § 63G-2-403.” See also, Utah Code Ann. § 63G-2-403(1). Further, the Committee, after a hearing, “shall issue a signed order either granting the petition in whole or in part or upholding the determination of the governmental entity in whole or in part.” Utah Code Ann. § 63G-2-403(11)(a).
3. The AG’s Office argued that the Committee did not have jurisdiction to review certain documents consisting of handwritten notes requested by Peterson. However, we find that the Committee does have jurisdiction to determine whether a governmental entity’s classification or designation under GRAMA was proper pursuant to Utah Code Ann. § 63G-2-402(2). In order to determine whether the AG’s Office properly classified the documents as “non-records,” the Committee also has the jurisdiction to review the disputed documents. See also, Onysko v. Utah Dep’t of Envtl. Quality, State Records Committee Order No. 08-17, ¶ 4.
4. After reviewing the disputed documents and based upon a preponderance of the evidence, the Committee finds that the handwritten notes submitted by the AG’s Office are “records” as defined by GRAMA because they were not personal notes prepared in the employee’s private capacity or a temporary draft prepared for the originator’s personal use. Utah Code Ann. § 63G-2-103(22)(b)(i) & (ii).
5. However, records prepared by or on behalf of a governmental entity solely in anticipation of litigation that are not available under the rules of discovery, or records disclosing an attorney’s work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation, are considered protected records if properly classified by governmental entity. Utah Code Ann. § 63G-2-305(16) and (17); Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr, 2008 UT 88, 200 P.3d 643, ¶25-29. The party asserting work-product protection must demonstrate that the documents were created to assist in pending or impending litigation, and a blanket assertion that the work-product doctrine applies is insufficient to meet that burden. Id. at ¶ 29.
6. Additionally, records of communications between a governmental entity and an attorney representing, retained, or employed by the governmental entity, if the communications would be privileged as provided in Utah Code Ann. § 78B-1-137, are considered protected records if properly classified by a governmental entity. Utah Code Ann. § 63G-2-305(18), Southern Utah Wilderness Alliance, ¶¶ 32-33. However, the mere existence of an attorney client relationship does not ipso facto make all communications between them confidential. Id., at ¶ 33, following Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P2d 909, 911 (Utah 1990).
7. Based upon a preponderance of the evidence including the arguments of the parties and a review of the handwritten notes submitted by the AG’s Office in camera, the Committee finds that the handwritten records contain attorney work-product prepared solely in anticipation of litigation, and communications between the governmental entity and the attorneys representing, retained or employed by the governmental entity. Accordingly, the AG’s Office has meet its burden that the handwritten notes were properly classified as “protected” pursuant to Utah Code § 63G-2-305(16), (17), or (18).
8. Concerning the remaining records, the Committee completed an in camera review of the records and based upon a preponderance of the evidence, finds the remaining records submitted by the AG’s Office contain both public and protected records, and that the protected records include: (1) Records prepared by or on behalf of a governmental entity solely in anticipation of litigation that are not available under the rules of discovery Utah Code Ann. § 63G-2-305(16); (2) Records disclosing an attorney’s work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation pursuant to Utah Code Ann. § 63G-2-305(17); (3) Records of communications between a governmental entity and an attorney representing, retained, or employedby the governmental entity if the communications would be privileged as provided in Utah Code Ann. § 78B-1-137 pursuant to § 63G-2-305(18); (4) Drafts pursuant to Utah Code Ann. § 63G-2-305(22); and (5) Records concerning a governmental entity’s strategy about collective bargaining or pending litigation pursuant to Utah Code Ann. § 63G-2-305(23). The table below adopted by the Committee specifically identifies each of the remaining documents submitted by the AG’s Office and the Committee’s classification determination for each document:
|
BATES STAMP |
DOCUMENT IDENTIFICATION |
CLASSIFICATION OF DOCUMENT AS DETERMINED BY THE COMMITTEE |
|
1-2 |
Print out of Website California business portal, dated April 6, 2006 |
Public |
|
3-4 |
E-mails from Helen Peterson to Scott Reed, dated May 18, 2006 |
Public |
|
5 |
Letter from Jeffrey Buckner to Attorney B. Ray Zoll Dated October 6, 2006 |
Public (Note: This document was previously provided to Peterson) |
|
6-13 |
E-mails from Blaine Ferguson to Werner Haidenthaller with attachment, dated September 26, 2007 and October 5, 2007 |
Public |
|
14-17 |
Four E-mails from Lori Edwards to Ao Pauga with responses dated January 3, 2008 |
Public
|
|
18-20
|
E-mail with attachment from Jeff Buckner to Lori Edwards dated January 8, 2008 |
18 Public |
|
21-27 |
Seven E-mails from Lori Edwards to Ao Pauga dated January 9, 2008 |
Public |
|
28-29 |
E-mail from Jeff Buckner to Kevin Olsen, dated January 24, 2008 |
Protected UCA 63G-2-305(16), (17), (18), and (23) |
|
30-31 |
E-mail from Jeff Buckner to Blaine Ferguson, dated January 24, 2008 |
Protected UCA 63G-2-305(16), )17), (18) and (23) |
|
32 |
E-mail from Jeff Buckner to Blaine Ferguson, dated January 30, 2008 |
Protected UCA 63G-2-305(16), (17), (18), and (23) |
|
33 |
E-mail from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 30, 2008 |
Public |
|
34 |
E-mail from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 30, 2008 |
Protected UCA 63G-2-305(18) |
|
35-36 |
Two E-mails from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 30, 2008 |
Public |
|
37-57 |
Series of e-mail correspondence from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 30, 2008 |
Protected UCA 63G-2-305(17), (18) and (23) |
|
58 |
E-mail from Blaine Ferguson to Mark Shurtleff, dated January 30, 2008 |
Protected UCA 63G-2-305(17), and (23) |
|
59 |
E-mail from Kirk Torgensen to Mark Shurtleff and Blaine Ferguson |
Protected UCA 63G-2-305(17), (18), and (23) |
|
60 |
E-mail from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 30, 2008 |
Public |
|
61 |
E-mail from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 31, 2008 |
Protected UCA 63G-2-305(17), (18), and (23) |
|
62 |
E-mail from Jeff Buckner to Kevin Olsen, dated February 8, 2008 |
Protected UCA 63G-2-305(17), (18), and (23) |
|
63 |
E-mail from Jeff Buckner to Francine Giani, Thad Levar, Kent Nelson and Kevin Olsen, dated February 13, 2008 |
Protected UCA 63G-2-305(17), (18), and (23) |
|
64 |
E-mail from Jeff Buckner to Blaine Ferguson, dated February 18, 2008 |
Protected UCA 63G-2-305(17), (18), and (23) |
|
65-66 |
E-mail from Blaine Ferguson to Mark Shurtleff and Kirk Torgensen, dated February 19, 2008 |
Protected UCA 63G-2-305(17), (18), and (23) |
|
67 |
E-mail from Kirk Torgensen to Blaine Ferguson, dated February 19, 2008 |
Public |
|
68 |
E-mail task reminder from Lori Edwards, Dated February 27, 2008 |
Public |
|
69 |
E-mail from Mark Shurtleff to Jeff Buckner, dated April 2, 2008 |
Public |
|
70-72 |
Series of 3 e-mails betweent Jeff Buckner and Mark Shurtleff, dated April 3, 2008 |
Protected UCA 63G-2-305(18), and (23) |
|
73-78 |
Series of e-mails between Jeff Buckner and Lori Edwards, dated April 3, 2008 |
Public |
|
79-80 |
Series of e-mails between Jeff Buckner and Lori Edwards, dated April 4, 2008 |
Public |
|
81-83 |
Draft pleading by Jeff Buckner, undated |
Protected UCA 63G-2-305(22) |
|
84 |
E-mail from Jeff Buckner to Lori Edwards, dated April 4, 2008 |
Public |
|
85-86 |
Draft pleading by Jeff Buckner, undated |
Protected UCA 63G-2-305(22) |
|
87 |
E-mail from Jeff Buckner to Lori Edwards, dated April 9, 2008 |
Public |
|
88-90 |
Draft pleading by Jeff Buckner, undated |
Protected UCA 63G-2-305(22) |
|
91 |
E-mail from Lori Edwards to Jeff Buckner |
Public |
|
92-94 |
Printout of website, Utah Commerce Department, dated April 9, 2008 |
Public |
|
95 |
E-mail from Jeff Buckner to Lori Edwards, dated April 9, 2008 |
Public |
|
96-97 |
E-mail from Blaine Ferguson to Mark Shurtleff, dated April 22, 2008 |
Public |
|
98 |
E-mail from Jeff Buckner to Lori Edwards, dated April 22, 2008 |
Public |
|
99-101 |
Draft pleading by Jeff Buckner, undated |
Protected UCA 63G-2-305(22) |
|
102-103 |
Series of e-mails between Jeff Buckner and Lori Edwards, dated April 22, 2008 |
Public |
|
104-109 |
Series of e-mails between Jeff Buckner and Lori Edwards, dated April 23, 2008 |
Public |
|
110 |
E-mail from Lori Edwards to Angela Hendricks, dated February 18, 2009 |
Public |
|
111-118 |
Draft letter by Jeff Buckner, dated October 10, 2006 |
Protected UCA 63G-2-305(22) |
|
119-121 |
Draft pleading by Jeff Buckner, undated |
Protected UCA 63G-2-305(22) |
|
122-127 |
Draft pleading by Jeff Buckner, undated |
Protected UCA 63G-2-305(22) |
|
128-129 |
Draft pleading by Jeff Buckner, undated |
Protected UCA 63G-2-305(22) |
|
130-135 |
Draft pleading by Jeff Buckner, undated |
Protected UCA 63G-2-305(22) |
|
136-141 |
Draft pleading by Jeff Buckner, undated |
Protected UCA 63G-2-305(22) |
|
142-144 |
Draft pleading by Jeff Buckner, undated |
Protected UCA 63G-2-305(22) |
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Eric Peterson is upheld in part and denied in part as follows: (1) The determination of the Utah Attorney General’s Office to deny access to the handwritten notes is upheld pursuant to Utah Code Ann. § 63G-2-305(16)(17) and (18) and the appeal of Eric Peterson as to the handwritten notes is denied; (2) the appeal of Eric Peterson is denied as to the documents identified as protected records in the above table, and the classification of the Utah Attorney General’s Office is upheld; and (3) the appeal of Eric Peterson is upheld as it pertains to the documents identified as public records in the above table and the Utah Attorney General’s Office is hereby ordered to provide said public records to Mr. Peterson within ten (10) days.
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 17th day of September 2009.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee
",Partially Granted,2009-09-07T00:00:00Z "
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ELIZABETH NEFF, SALT LAKE TRIBUNE, Petitioner, vs.
BEAVER COUNTY, Respondent.
DECISION AND ORDER
Case No. 07-01
By this appeal, Elizabeth Neff, in her capacity as an employee of the Salt Lake Tribune, seeks access to records of Beaver County Sheriff's Department including records and reports regarding Grace S. and Robert Gerald Erno. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on January 11, 2007, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
The Government Records Access and Management Act ("GRAMA") specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). Records that are not public are designated as either "private," "protected," or "controlled." See Utah Code Ann. 63-2-302, -303 and -304. The Beaver County and the Beaver County Sheriff's Department denied Elizabeth Neff/Salt Lake Tribune the records and reports she seeks on the grounds that said reports and records are "private".
The Committee is not persuaded, in this instance, the records are private. The Committee is also not persuaded the deceased subject(s) of the records have an expectation or are entitled to privacy per 3-2-302(d). The committee does find the records are incorrectly classified. The records should have two classifications: "protected" per 63-2-304(9)(d) and (e), and "exempt" per 63-2-201(6)(a). It appears that the protected and exempt information can be segregated and redacted to allow access to the balance of the records pursuant to Utah Code Annotated 63-2-307.
The Committee notes that a specific statute (Utah Code Ann. 41-1a-116) governs the release of driver's license and motor vehicle registration information. These records are therefore exempt from classification and disclosure under GRAMA pursuant to Utah Code Annotated 63-2-201(6)(a).
The Beaver County Sheriff's Department has therefore improperly classified the records in question as "private" under Utah Code Ann. 63-2-302(d).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Elizabeth Neff is granted in part. Petitioner is granted access to the report, however respondent shall redact access to records that reasonably could be expected to disclose the identity of a source who is not generally known outside of government or disclose information furnished by a source not generally known outside of government or that reasonably could be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government pursuant to Utah Code Annotated 63-2-304(9)(d) and (e). Driver's license information and other motor vehicle information is governed by separate statue and is exempt per 63-2-201(6)(a). All other information not protected or exempt is to be provided to the petitioner.
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. 63-2-404. 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.
Entered this 17th day of January, 2007.
BY THE STATE RECORDS COMMITTEE
Patricia Smith-Mansfield,
Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN J. ONYSKO, Petitioner, vs.
DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent.
DECISION AND ORDER
Case No. 08-01
By this appeal, Steven J. Onysko, seeks that the State Records Committee overturn the denial from the Department of Environmental Quality to give him access to all documents held by the Department of Environmental Quality with his name on it or that pertain to him and the decision regarding his reassignment from Division of Drinking Water Engineering Section Manager.
The State Records Committee, having reviewed the materials submitted by the parties, the documents in question, and having heard oral argument and testimony on January 10, 2008, now 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 Ann. 63-2-201(2). Records that are not public are designated as either "private", "protected," or "controlled". See Utah Code Ann. 63-2-302, -303 and -304.
2. Because Mr. Onysko does not challenge the classification of the documents, the committee need not address the issue of classification, but recognizes the Department of Environmental Quality has classified the requested data at issue as Protected pursuant to Utah Code Ann. 63-2-304(9)(a) and (d), and 63-2-304(25).
3. Therefore, in deciding whether the Department of Environmental Quality should disclose the requested data at issue herein, the committee finds pursuant to Utah Code Ann. 63-2-403(11)(b) that the public interest favoring access outweighs the interest favoring restriction of access.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Steven J. Onysko is granted. The Committee finds in accordance with Utah Code Ann. 63-2-403(11)(b), that the public interest favoring access outweighs the interest favoring restriction of access and orders that the records be released by the Department of Environmental Quality to Mr. Onysko.
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. 63-2-404. 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. This notice is required by Utah Code Ann. 63-2-403(12)(d).
PENALTY NOTICE
Pursuant to Utah Code Ann. 63-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file (i) a notice of compliance with the records committee upon production of the records; or (ii) 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: (a) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (b) 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 17th day of January, 2008.
BY THE STATE RECORDS COMMITTEE
____________________________________
CARL ALBRECHT, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
INVESTIGATIVE RESEARCH, Petitioner,
vs.
UTAH DEPARTMENT OF TRANSPORTATION, Respondent.
DECISION AND ORDER
Case No. 08-18
By this appeal, Keith Sobraske seeks access from the Utah Department of Transportation (“UDOT”) to any records concerning: (1) Traffic Volume Studies, Engineering Studies, Speed Studies, Accident Studies, Barricade Studies, Sign Studies, or other reengineering studies conducted for U.S. 163, mile post 28 to mile post 30; (2) the historical installation, removal and/or replacement of traffic signage on U.S. 163; and (3) changes in roadside devices, such as barricades, barrier walls, wood guide posts or roadside markers on U.S. 163.
FACTS
On August 4, 2008, Mr. Sobraske made a request of UDOT pursuant to the Utah the Government Records Access and Management Act (“GRAMA”). He stated that he was an “investigator conducting an investigation on behalf of victims of the Arrow bus crash that occurred on January 6, 2008 at MP 29 on U.S. 163 (aka SR 163), northeast of Mexican Hat, Utah.” Jana Rasmussen, Executive Secretary/GRAMA Coordinator for UDOT denied Mr. Sobraske’s request in a letter dated August 13, 2008 on the basis that “it has been determined that this falls under Protected Records” pursuant to Utah Code Ann. § 63-2-304(16).
Mr. Sobraske appealed UDOT’s denial arguing that it was unreasonable for UDOT to conclude that all of the requested records from 1963 to the present could have been prepared solely in anticipation of litigation pursuant to Utah Code Ann. § 63-2-304(16). In a letter dated September 22, 2008, Renee Spooner, a Utah Assistant Attorney General representing UDOT, stated that the records were not public records “because access is restricted pursuant to federal statute.” Ms. Spooner thereafter wrote that UDOT “will not release these records to you.” On October 21, 2008, Mr. Sobraske appealed UDOT’s denial to the State Records Committee (“Committee”). Having reviewed the materials submitted by the parties and having heard oral argument and testimony on November 13, 2008, the Committee now 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 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. Utah Code Ann. § 63G-2-201(6)(a) states that the “disclosure of a record to which access is governed or limited pursuant to …federal statute, or federal regulation, including a record for which access is governed or limited as condition of participation in a state or federal program or for receiving state or federal funds, is governed by the specific provisions of this statute, rule, or regulation.”
3. UDOT argued that 23 U.S.C. § 409 applied to the present case. It states in part: “[R]eports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to [23 USCS §§ 130, 144, and 148] shall not be subject to discovery or admitted into evidence in a Federal or State Court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.”
4. UDOT claimed that the phrase “not …subject to discovery” also included discovery through public records requests. Mr. Sobraske argued that “discovery” applied only to discovery under Federal or State Civil Rules of Procedure in a lawsuit and did not forbid disclosure through a GRAMA request.
5. UDOT also presented three court cases to be considered by the Committee for the proposition that “discovery” under 23 U.S.C. § 409 includes public records requests: Pierce Cty v. Guillen, 537 U.S. 129 (2003); Ex parte Ala. Dept. of Trans., 757 So.2d 371 (Ala. 1999); Seaton v. Johnson, 898 S.W.2d 232 (Tenn. 1995).
6. After hearing arguments from both parties and reviewing all applicable statutes and cases, the Committee finds that the requested records are public and should be disclosed. The public’s right to access information concerning the conduct of the public’s business outweighs the public policy interest in allowing UDOT to restrict access to certain records “for the public good.” See, Utah Code Ann. § 63G-2-102(1)(a); § 63G-2-102(2).
7. The Committee recognizes the authority of the United States Congress to restrict access to public documents including records held by state entities like UDOT. However, a plain reading of 23 U.S.C. § 409 does not mandate that all records “compiled or collected” pursuant to 23 U.S.C. §§ 130, 144, or 148 cannot be disclosed through a public records request. If this was the intent of Congress, 23 U.S.C. § 409 would have included words such as “not subject to a public records request” or “not subject to a request pursuant to the Freedom of Information Act.”
8. The Committee also finds that the Alabama and Tennessee cases cited by UDOT are persuasive, but not binding upon Utah Courts, and can be distinguished from the facts of the present case.
9. The intent behind 23 U.S.C. § 409 was stated in the Congressional Record as follows: “It is intended that raw data collected prior to being made part of any formal or bound report shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such data” Ala. Dept. of Trans., 757 So.2d at 374. Disclosure of the requested records through a public records request is not contrary to the expressed intent of Congress to exclude the records from Federal or State court proceedings or any action for damages because even after the records have been obtained, courts still have the ability to exclude the records from being considered as evidence in court proceedings. As stated by the United States Supreme Court, “Congress wished to make clear that [23 U.S.C. §148] was not intended to be an effort-free tool in litigation against state and local governments.” Pierce Cty., 537 U.S. at 146.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Keith Sobraske is granted. The Utah Department of Transportation is hereby directed to, within ten (10) days of receipt of this Order, release the responsive documents within its control sought by Petitioner.
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 ad",Granted,2008-11-20T00:00:00Z "
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
THE SALT LAKE TRIBUNE Petitioner, vs.
GRANITE SCHOOL DISTRICT, ET AL., Respondents.
DECISION AND ORDER
Case No. 09-13
By this appeal, Petitioner, the Salt Lake Tribune (“Tribune”), seeks access to records of the Respondents, Granite, Jordan and Salt Lake School Districts (“Districts”), specifically dates of birth for certain District employees who may have a criminal conviction.
FACTS
On or about April 8, 2009, Kirsten Stewart of the Tribune requested from the Districts dates of birth for employees who may have criminal convictions. The records requests from the Tribune were narrowed to a list of names generated from research performed by the Tribune which could include actual District employees. Each of the Districts denied the requests citing Utah Code Ann. § 63G-2-203(2)(a) and indicating: “Personal status information such as race, religion, or disabilities are classified as protected.” Tony Semerad, Computer Assisted Reporting Editor for the Tribune, filed an appeal to the Committee on behalf of the Tribune of the Districts’ decisions. The parties have stipulated to a consolidation of the appeals.
The State Records Committee having reviewed the materials submitted by the parties, and having heard oral argument and testimony on August 13, 2009, now 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 Ann. § 63-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63-2-302, -303, -304 and -305.
2. The following records are private if properly classified by a governmental entity: Records concerning a current or former employee of, or applicant for employment with a governmental entity, including personal status information such as race, religion, or disabilities, but not including records that are public under Subsection 63G-2-301(2)(b) or Subsection –301(3)(O), or private pursuant to Subsection -301(1)(b). Utah Code Ann. § 63G-2-302(2)(a).
3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of privacy are also private. Utah Code Ann. § 63G-2-302(2)(d).
4. The Districts argued that date of birth information is private pursuant to Utah Code Ann. § 63G-2-302(2)(a), even though not expressly identified as such in the statute. The Districts further argued that the statutory language “such as” indicated legislative intent to include other status information not expressly delineated in Subsection –302(2)(a). Stewart argued that a record is public unless otherwise expressly provided by statute pursuant to Utah Code Ann. § 63G-2-201(2).
5. After hearing argument and testimony of the parties and based upon a preponderance of the evidence, the Committee is convinced that similar to race, religion or disabilities, “age” should be considered “personal status information” and therefore “private” pursuant to Utah Code Ann. §63G-2-302(2)(a). However, the Committee is further convinced that “date of birth” information may be bifurcated, separating out the month and the day of birth from the year of birth, thereby helping to mitigate the risk of identity theft and the release of “individual status” information.
6. The Districts also argued that release of birth date information would be “clearly an unwarranted invasion of privacy,” especially for those employees with no criminal history or criminal conviction. The Districts contended that release of date of birth information would potentially expose the employees to identity theft or other fraudulent abuse of their personal information.
7. After hearing argument and testimony, the Committee is convinced that the bifurcation of date of birth information will both protect district employees from potential fraud and abuse of personal information, and protect against any unwarranted invasion of an employee’s privacy. The Committee is not persuaded that the month and day of birth alone without the year of birth, is sufficient information to subject the employee to a clear unwarranted invasion of privacy. The Committee is convinced that the bifurcated information is sufficient to correlate the employees’ names with a list of individuals with criminal convictions, accomplishing the stated public interest objective of the Tribune to determine whether school employees have criminal histories. Accordingly, the Tribune should be provided access to the month and day of birth for the specified district employees and the Districts have the right to redact the birth year from the disclosed records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of the Salt Lake Tribune is affirmed in part and denied in part. The Districts are hereby ordered to, within ten (10) days, provide the Tribune access to the month and day of birth, but be allowed to redact all “year of birth” information of the district employees delineated in its records pursuant to Utah Code Ann. § 63G-2-302(2)(a) and –302(d).
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.
Entered this 24th day of August 2009.
BY THE STATE RECORDS COMMITTEE
____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RUSS RIZZO AND THE SALT LAKE TRIBUNE, Petitioner, vs.
CITY OF SOUTH SALT LAKE, Respondent.
DECISION AND ORDER
Case No. 07-13
By this appeal, Russ Rizzo and the Salt Lake Tribune, seek that the State Records Committee overturn the denial for records request from City of South Salt Lake and compel the City of South Salt Lake to comply fully with the original GRAMA request. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on August 9, 2007, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
The Government Records Access and Management Act ("GRAMA") specifies that, "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). Records that are not public are designated as either "private," "protected," or "controlled." See Utah Code Ann. 63-2-302, -303 and -304. The committee recognizes the City of South Salt Lake has classified the requested data as public by their statements.
A governmental entity may charge a reasonable fee to cover the governmental entity's actual cost of providing a record Utah Code Ann. 63-2-203(1). The committee is persuaded that the City of South Salt Lake may charge a reasonable fee to cover the actual cost of providing a record pursuant to Utah Code Ann. 63-2-203(1).
GRAMA specifies that, "In response to a request, a governmental entity is not required to create a record, compile, format, manipulate, package, summarize, or tailor information or provide a record in a particular format, medium or program not currently maintained by the governmental entity." See Utah Code Ann. 63-2-201(8)(a)(i)(ii)(iii). The Committee finds the City of South Salt Lake can provide output in a format that is regularly available and currently maintained by the governmental entity without creating a record, compiling, formatting, manipulating, packaging, summarizing, or tailoring information. Therefore, the City of South Salt Lake shall provide an output in a format that is regularly available and currently maintained to the requestor.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Russ Rizzo and the Salt Lake Tribune is granted in part. The committee recognizes the city has by their statements, classified this information as public; and finds that providing output in a format that is regularly available is not creating or compiling a record. Therefore, the City of South Salt Lake shall provide an output in a format that is regularly available and currently maintained to the requestor.
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. 63-2-404. 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. 63-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file (i) a notice of compliance with the records committee upon production of the records; or (ii) 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: (a) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (b) 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 15th day of August, 2007.
BY THE STATE RECORDS COMMITTEE
CARL ALBRECHT, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DAN FAZZINI, Petitioner, vs.
UTAH TRANSIT ATHORITY, Respondent.
DECISION AND ORDER
Case No. 08-13
By this appeal, Dan Fazzini Jr., Director Safe-Route Connection, Inc., seeks access to records of the Utah Transit Authority (“UTA”) pertaining to all complaints with regard to cyclists and UTA in the year 2007.
FACTS
On March 26, 2008, Mr. Fazzini made the following request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from UTA:
[S]tatistics from 2007 for the complaints received involving cyclists to the UTA including:, Date of incident/complaint; Location of incident; Type of complaint; Other demographic information which is available related to the complaint; Text/notes of complaint; What the follow-up was and other relevant information; Also, and changes in driver training and policies related to such incidents.
Through a letter dated April 3, 2008, Mr. Fazzini’s request was denied by Michelle Larsen, UTA’s Records Officer. Ms. Larsen stated that the records sought by Mr. Fazzini were classified as “private pursuant to Utah Code Ann § 63-2-302.” Ms. Larsen additionally asserted the records sought by Mr. Fazzini were protected pursuant to Utah Code Ann § 63G-2-305(24) and § 63-2-302(2)(d) because they contained “data on individuals, the disclosure of which constitutes a clearly unwarranted invasion of privacy.” UTA did provide to Mr. Fazzini a copy of UTA’s policies concerning bicycles and other mobility devises.
In a letter dated May 2, 2008, Mr. Fazzini filed an appeal to John Inglish, General Manager of UTA, of UTA’s denial of his request. After receiving no response from UTA, Mr. Fazzini filed an appeal with the State Records Committee (“Committee”) requesting a review of UTA’s decision to deny his request for UTA records. The Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on July 10, 2008, now issues the following Decision and Order.
JURISDICTION
In its memorandum filed with the Committee pursuant to Utah Code Ann. § 63G-2-403(5), UTA argued that Fazzini had failed to exhaust his administrative remedies. Specifically, Fazzini filed his appeal of John Inglish's denial of his request directly to the Committee instead of filing an appeal to UTA's Appeals Board. Utah Code Ann.§ 63G-402(1), states that if the chief administrative officer of a governmental entity denies a records request under Utah Code Ann. § 63G-2-401, the requester may: "(a) appeal the denial to the records committee as provided in § 63G-2-403; or (b) petition for judicial review in district court as provided in § 63G-2-404." However, Utah Code Ann. § 63G-2-701 allows a political subdivision to “establish an appeals process for persons aggrieved by classification, designation or access decisions.” Utah Code Ann. § 63G-2-701(4)(a).
In the present case, John Inglish as chief administrative officer of UTA, denied Fazzini's request for records. Additionally, Mr. Fazzini testified during the hearing that he believed he was following the proper appellate procedure based upon his reading of Utah Code Ann. § 63G-2-402 and Ms. Larsen’s statement in her letter dated April 3, 2008, that he “may have other appeal remedies, as outlined in Utah Code Ann. § 63-2-401, et seq.” Even though UTA has the discretion to set up its own appeals process pursuant to Utah Code Ann. § 63G-2-701, based upon the facts of the case, UTA allowed Fazzini to have the right to directly appeal Mr. Inglish's denial to the Committee. See also Utah Code Ann. § 63G-2-701(5). Accordingly, we find that the Committee has jurisdiction to hear Mr. Fazzini’s appeal.
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 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. UTA denied Fazzini the records he seeks on the grounds that the records sought are “protected” and or “private”. At oral argument the parties clarified Mr. Fazzini’s request to be for “complaints from online and telephone complaints for the year 2007.” The Committee, having heard argument from both parties, finds the records responsive to Mr. Fazzini’s request pertaining to complaints from online and telephone sources are public. The committee is also persuaded that the records may contain “private” information pursuant to Utah Code Ann. § 63G-2-303(2)(d), which, if released, would constitute a clearly unwarranted invasion of personal privacy. To the extent any records responsive to petitioner’s request contain “private” information, this information shall be redacted.
2. Mr. Fazzini, during the hearing, made a motion to request a waiver of fees associated with his request pursuant to Utah Code Ann § 63G-203(4)(a), claiming that the release of the information would benefit the public rather than him as an individual. The committee, having heard testimony of the parties, is persuaded the amount for the “fee” has not yet been established by UTA. Inasmuch as the amount is not established, the Committee has no basis for which to address a waiver of the fee and therefore, denies the petitioner’s motion.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Dan Fazzini Jr. is granted as it relates to “complaints from online and telephone complaints for the year 2007.” UTA is hereby directed to within ten (10) days of receipt of this Order, identify and produce said records to Mr. Fazzini. UTA has the discretion to redact from any record produced all “private” information, which, if released, would constitute a clear unwanted invasion of privacy pursuant to Utah Code Ann. § 63G-2-302(2)(d); medical information pursuant to Utah Code Ann. § 63G-2-302(1)(b); and records pertaining to investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes pursuant to Utah Code Ann. § 63G-2-305(9)(a). Mr. Fazzini’s request for a waiver of UTA’s fees is denied.
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",Partially Granted,2008-07-17T00:00:00Z "
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, REPORTER FOR THE CITY WEEKLY, Petitioner, vs.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
ORDER OF CONTINUANCE
Case No. 09-09
The above matter having come before the State Records Committee (“Committee”) for oral argument and testimony on July 9, 2009, the parties appearing, and the Committee having received the pleadings, evidence and arguments offered by the parties, and also having received a single set of documents from the Respondent, Utah Attorney General’s Office for in camera review, and such being too numerous to review in its entirety during the hearing of this matter, and based upon the documents submitted for in camera review not being complete, it is hereby
ORDERED that the in camera review and the hearing are hereby continued until the next meeting of the Committee, on Thursday, August 13, 2009 at the hour of 8:30 a.m.; it is further
ORDERED that the documents received by the Committee shall be securely held at the State Archives Building to effectuate the in camera review of the Committee; it is further
ORDERED that Respondent, Utah Attorney General’s Office shall submit to the Executive Secretary of the State Records Committee all of the contested documents, including any notes, on or before July 23, 2009, so that the individual members of the Committee may conduct further in camera review prior to the August 13, 2009 hearing; it is further
ORDERED that at the August 13, 2009 meeting of the Committee the hearing in this matter shall resume and the Committee will conclude an in camera review of the contested documents.
This Order was made without the objection and with the consent of the parties.
Dated this 20th day of July, 2009.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAMELA BRADY AGENT FOR INTERMOUNTAIN CLAIMS INC, Petitioner, vs.
UTAH DEPARTMENT OF PUBLIC SAFETY/UTAH HIGHWAY PATROL, Respondent.
DECISION AND ORDER
Case No. 09-17
By this appeal, Petitioner, Pamela Brady, Agent for Intermountain Claims Inc., (“Petitioner”), seeks access to an accident report for an auto accident which occurred on May 14, 2009.
FACTS
On or about June 11, 2009, Ms. Brady submitted a request for records in Case Nos. 09UT1196 and 09UT1197 to Respondent, Utah Department of Public Safety/Utah Highway Patrol (“DPS”). DPS responded to the request by providing an Accident Report (DI-9) for Case No. 09UT1196, but denied access to the accident report in Case No. 09UT1197. DPS claimed that pursuant to Utah Code Ann. § 63G-2-202(4), Petitioner was not entitled to access to the “protected” record. Ms. Brady appealed this denial to Lance Davenport, Commissioner for DPS, who denied access for the same reasons. Ms. Brady then appealed Commissioner Davenport’s denial to the Utah State Records Committee (“Committee”).
Ms. Brady was not present at the time set for the hearing of this matter and did not file a written request for a continuance or cancellation of the hearing pursuant to Utah Admin. Code R. 35-1-2(13). Counsel for DPS indicated that a copy of the requested accident report had recently been mailed to Ms. Brady, but did not know whether Petitioner had actually received the report. Accordingly, inasmuch as Petitioner did not request a continuance or a cancellation of the hearing, and there was no indication whether the Petitioner was satisfied the response was complete; the Committee proceeded with the hearing. After having reviewed the written arguments submitted by the parties and hearing oral argument from DPS on October 8, 2009, the Committee now issues the following Decision and Order.
STATEMENT OF REASONSE 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 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. Accident reports, except as provided in Utah Code Ann. §§ 41-6a-404, 41-12a-202, and 73-18-13 are protected records. Utah Code Ann. § 63G-2-305(38).
3. Subject to the provisions listed in Utah Code Ann. § 41-6a-404, the department or other responsible law enforcement agency employing the peace officer that investigated the accident shall disclose an accident report to an agent of a person involved in the accident or suffering loss or injury in the accident. Utah Code Ann. § 41-6a-404(3). An “agent” includes a person’s insurer. Utah Code Ann. § 41-6a-404(1)(a)(ii).
4. At the hearing, counsel for DPS indicated that the denial of Ms Brady’s request was the result of miscommunication within DPS. Initially, it was believed that the two accidents were separate cases and entirely unrelated. Further, DPS believed that Petitioner would not be entitled to the first accident report given the understanding that the two cases were unrelated. However, prior to the hearing, counsel for DPS reviewed Ms. Brady’s request again and contacted the investigating Trooper to clarify the issues. The Trooper indicated that although two case numbers were used, both accidents were connected to each other with the first accident possibly being the cause of the second accident. Based upon this clarification, it was determined by DPS that Ms. Brady was entitled to access pursuant to Utah Code Ann. § 63G-2-202 and § 41-6a-404 and therefore, the accident report was provided to Petitioner. Counsel for DPS further indicated that policies and practices at DPS are being reviewed to assure full compliance with the law in the future.
5. Based upon the testimony presented by counsel for DPS, the Committee is convinced that all public records responsive to Petitioner’s request have now been released to the Petitioner.
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Pamela Brady, Agent for Intermountain Claims Inc., is denied because all records responsive to Petitioner’s request have been provided to Petitioner.
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 15th day of October 2009.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RUSSELL SHANE JOHNSON Petitioner, vs.
SOUTH JORDAN CITY, Respondent.
DECISION AND ORDER
Case No. 08-03
By this appeal, Russell Shane Johnson, seeks that the State Records Committee overturn the City of South Jordan's partial denial of his request for copies of "all records of discipline against police officers of and by the South Jordan Police Department, including written reprimands, over the past three years, for which all time periods for administrative appeal have expired; and the charges on which the disciplinary action was based were sustained." Mr. Johnson further seeks that the Committee determine that fees imposed by South Jordan were improper and unreasonable.
The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on March 13, 2008, now 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 Ann. 63-2-201(2). GRAMA further specifies that records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee are normally public if "(i) the disciplinary action has been completed and all time periods for administrative appeal have expired and (ii) the charges on which the disciplinary action was based were sustained." Utah Code Ann. 63-2-301(3)(o). However, to the extent that such a record is expressly exempt from disclosure, access may be restricted under Utah Code Ann. 63-2-201(3)(b), 63-2-302, 63-2-303, or 63-2-304. See id.
2. South Jordan City concluded that requested records of discipline not listed as appealable disciplinary action in Utah Code Ann. 10-3-1106(2)(a) were restricted from public access and therefore denied access to those records.
3. The State Records Committee concludes that pursuant to Utah Code Ann. 63-2-301(3)(o), records that disclose information relating to formal charges or disciplinary action against a past or present governmental employee are public if the disciplinary action has been completed and that the lack of an appeal provision does not affect public access to the records. The requested records are public and therefore should be released.
4. During the hearing before the Committee, Mr. Johnson accepted South Jordan's offer to refund fees for retrieval of and compiling the records and withdrew his appeal as to the amount of fees charged by South Jordan. The Committee therefore does not make a determination in regard to whether the fees imposed by South Jordan were improper or unreasonable.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Russell Shane Johnson is granted in part. Pursuant to Utah Code Ann. 63-2-301(3)(o), South Jordan shall provide Mr. Johnson with copies of requested records that disclose information relating to disciplinary action where the action has been completed and even though the action is not subject to appeal under Utah Code Ann. 10-3-1106(2)(a).
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. 63-2-404. 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. 63-2-403(14)(d), the government entity herein shall comply with the order of the State Records Committee and, if records are ordered to be produced, file (i) a notice of compliance with the records committee upon production of the records; or (ii) 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: (a) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (b) 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 20th day of March, 2008.
BY THE STATE RECORDS COMMITTEE
____________________________________
SCOTT WHITTAKER,
Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KEN MURRAY
ARIZONA PUBLIC DEFENDER, Petitioner, vs.
UTAH DEPARTMENT OF CORRECTIONS,Respondent.
DECISION AND ORDER
Case No. 08-11
By this appeal, Ken Murray, Assistant Federal Public Defender for the District of Arizona, seeks access to records of the Utah Department of Corrections (“Corrections”), specifically records pertaining to Utah’s methods and procedures for capital punishment.
FACTS
On January 25, 2008, Mr. Murray made the following requests for records from Corrections pursuant to the Government Records Access and Management Act (“GRAMA”).
(1) Protocols, handbooks, training manuals utilized by the department to conduct executions by lethal injection and by firing squad.
(2) Manuals, materials, curricula used to train members of the execution team or teams, whether the members be department employees or not, and including medical personnel.
(3) Records that reflect the actual training, including dates of training, of members of the execution team or teams, whether the members be department employees or not, and including medial personnel.
(4) Records that reflect the qualifications required of members of the execution team or teams, whether the members be department employees or not, and including medical personnel.
(5) Records of payments to members of the execution team or teams, whether the members be department employees or not, and including medical personnel.
(6) Records of any contracts entered into to facilitate execution, including for personal services, supplies and consultations.
(7) The selection process for the execution teams, whether the members be department employees or not, and including medical personnel.
(8) Identities, identifiers, titles and qualifications (including employment history and personnel files) of member of the execution team or teams, whether the members be department employees or not, and including medical personnel.
(9) Records reflecting the deliberative process, including internal or external communications from any party, employed in establishing the protocols, handbooks, training manuals and qualifications, including the selection of team members, of members of the execution team or teams, whether the members be department employees or not, and including medical personnel.
(10) Old protocols, manuals, curricula and training programs no longer in use.
(11) A list and copies of all standard reports and forms employed by the department to memorialize, describe or document executions and the actions of members of the execution team or teams, whether they be department employees or not, including medical personnel.
(12) All documents and records produced (as described in No.9) relative to executions conducted by the State of Utah since 1950, including evaluations of process and performance of the execution teams, whether they be employees of the department or not, and including medical personnel.
(13) Results of autopsy reports, including post-mortem photographs, of those executed.
On February 26, 2008, Corrections denied Mr. Murray’s request in its entirety pursuant to Former Utah Code Ann. § 63-2-304 (10), (11), (12). Corrections stated in its letter that:
[T]he contents of any documents which detail the life and death procedure of an execution fill the description of being records the disclosure of which would jeopardize the life or safety of an individual…which would jeopardize the security of governmental property, governmental programs, or governmental record keeping systems from damage, theft…would jeopardize the security or safety of a correctional facility.
Mr. Murray appealed Corrections’ denial to Corrections’ Deputy Director, who also denied the records request finding that records contained security measures that were designed for the protection of persons or property both public and private. Corrections however did release two records containing information concerning capital punishment in Utah.
Mr. Murray now appeals the denial of his GRAMA request to the State Records Committee (“Committee”). After having reviewed the materials submitted by the parties, and hearing oral argument and testimony before the Committee on July 10, 2008, the Committee issues the following Decision and Order.
MOTION TO DISMISS
In response to Mr. Murray’s appeal, Corrections filed a Motion to Dismiss arguing that the Committee lacks jurisdiction to decide the merits of Mr. Murray's appeal because "the records sought by petitioner, Mr. Murray, are records of security measures which are specifically exempted by statute." Corrections claims that their records are not subject to the provisions of GRAMA pursuant to Utah Code Ann. § 63G-2-106, which states in part that records of a governmental entity or political subdivision "regarding security measures designed for the protection of person or property, public or private, are not subject to this chapter." Corrections contends that with the use of the phrase "not subject to this chapter," the Legislature specifically exempted security measure records from the purview of this Committee. We disagree.
The jurisdiction of the Committee to hear appeals is outlined in Utah Code Ann. § 63G-2-402(2), which states: "Any person aggrieved by a determination of the chief administrative officer of a governmental entity under this chapter, including persons who did not participate in the governmental entity's proceeding, may appeal the determination to the records committee as provided in § 63G-2-403." See also Utah Code Ann. § 63G-2-701(5). Regarding the appellate procedure, Utah Code Ann. § 63G-2-403(11)(a) states that after a hearing, the Committee "shall issue a signed order either granting the petition in whole or in part or upholding the determination of the governmental entity in whole or in part."
A review of Chapter 63G-2 shows that the Legislature chose not to distinguish which records could be reviewed by the Committee. Chapter 63G-2 outlines a simplified process whereby a petitioner or an aggrieved party "may appeal the determination" of the governmental entity to the Committee, and the Committee may uphold or overrule the governmental entity's determination. The fact that Utah Code Ann. § 63G-2-106 excludes records regarding security measures from the definitions of public, private, controlled, or protected records by using the phrase "not subject to this chapter," does not in turn divest jurisdiction from the Committee to determine whether the governmental entity properly classified the records as "security measures." Accordingly, we overrule Corrections' Motion to Dismiss and find that pursuant to Utah Code Ann. § 63G-2-403, the Committee has jurisdiction to hear appeals and review determinations made by governmental entities concerning whether a record was properly classified a public, private, controlled, or protected record, and also whether a record incorporates security measures pursuant to Utah Code Ann. § 63G-2-106.
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 Ann. § 63G-2-201(2). Records that are not public are designated as either “private,&rdqu",Partially Granted,2008-07-17T00:00:00Z "
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UTAH FEDERAL DEFENDER OFFICE, Petitioner, vs.
MARK L. SHURTLEFF, Utah Attorney General, CRIMINAL APPEALS DIVISION, Utah Attorney General’s Office, Respondent.
DECISION AND ORDER
Case No. 08-20
By this appeal, Utah Federal Defender Office seeks access to records of communications between the Utah Division of Finance and Criminal Appeals Division of the Utah Attorney General’s Office.
FACTS
On July 1, 2008 Utah Federal Defender Office made a request of Mark Shurtleff, Utah Attorney General, pursuant to the Governmental Record Access Management Act. Utah Federal Defender Office requested “all records of all communications between the Utah Division of Finance and the Division of the Utah Attorney General’s Office over Capital Habeas Appeals, Post Conviction Appeals, and any other matter related to capital/post conviction proceedings.” By letter dated August 27, 2008, Assistant Attorney General Brett J. DelPorto denied the request saying the record was not subject to disclosure pursuant to Utah Code § § 63G-2-305(17) and (18), in that they were attorney/client communications and attorney work product. Utah Federal Defender Office appealed the decision to Attorney General Mark Shurtleff on September 26, 2008.
By letter dated October 5, 2008, Chief Deputy Attorney General Kirk Torgensen, on behalf of Mark Shurtleff, denied the appeal. That letter indicated that the requested records were protected pursuant to Utah Code § 63G-2-305(17) and (18).
By letter dated November 4, 2008, Utah Federal Defender Office appealed Attorney General Mark Shurtleff’s denial to the State Records Committee (Committee). Having reviewed the materials submitted by the parties, including the third party presenter Division of Finance, and having heard argument on December 11, 2008, and having continued the hearing to allow complete submission of the disputed records, and the Committee having reviewed the records in camera, the Committee now 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 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. Records prepared by or on behalf of a governmental entity solely in anticipation of litigation that are not available under the rules of discovery and records disclosing an attorney’s work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation, are considered protected records if properly classified by governmental entity. Utah Code Ann. § 63G-2-305(16) and (17), Southern Utah Wilderness Alliance v. Automated Geographic Reference Center, 2008 UT 88, (December 23, 2008). Records of communications between a governmental entity and an attorney representing, retained, or employed by the governmental entity, if the communications would be privileged as provided in § 78B-1-137, are considered protected records if properly classified by a governmental entity. Utah Code Ann. § 63G-2-305(18), Southern Utah Wilderness Alliance, Id.
3. Based upon the arguments of the parties and review of the records in camera, we find no unity of interest between the Division of Finance (and its lawyers in the Attorney General’s Office) and the lawyers in the Criminal Appeals Division of the Attorney General’s Office and, in fact, we find actual or potential conflicts between them. The Attorney General’s Office failed to meet its burden that these records were properly classified as “protected” pursuant to Utah Code § 63G-2-305(16), (17), or (18), involving attorney/client communications and attorney work product.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Utah Federal Defender Office is granted, the classification of these records by Respondent Mark Shurtleff, Utah Attorney General
pursuant to Utah Code § 63G-2-305(16), (17), or (18), is reversed, and the records are public and shall be produced by the Respondent to the Utah Federal Defender Office.
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 15th day of January, 2009
BY THE STATE RECORDS COMMITTEE
____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JUSTIN CROSBIE, Petitioner, vs.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 14-09
By this appeal, Petitioner, Justin Crosby, seeks access to records from Respondent, the Utah Department of Corrections (“Corrections”) through five different records requests pursuant to the Utah Government Records Access and Management Act (“GRAMA”).
FACTS
On January 22, 2014, Mr. Crosbie filed five records requests with Corrections. Request #15633 was for all office and field notes entered by an agent regarding Mr. Crosbie. Request #15643 was for all progress reports, as well as polygraph and PPG results regarding Mr. Crosbie. Request #15644 was for a copy of a warrant request and a parole violation report to the Utah Board of Pardons and Parole involving Mr. Crosbie. Request #15645 was for all government cell phone records, including pictures and e-mails generated by Mr. Crosbie’s parole agent. Request #15646 was for all outgoing and incoming e-mails by Mr. Crosbie’s parole agent from 2011 to the present.
Corrections processed each of Mr. Crosbie’s records requests, granting portions of the requests while denying other portions. For Request #15633, Corrections provided eighteen of twenty pages responsive to his request, but classified the two remaining pages as controlled and/or protected. The records in Request #15643 were found to be both protected and controlled. Request #15644 was denied on the basis that the records were protected records pursuant to Utah Code § 63G-2-305(14). Corrections denied Request #15645 on the basis that no records could be located that were responsive to his request. Corrections found that Request #15646 duplicated a previous records request from Mr. Crosbie, and denied his request pursuant to Utah Code § 63G-2-201(8)(a)(iv).
Mr. Crosbie filed an appeal for all five of his requests, and Mike Haddon, Deputy Director for Corrections, upheld the prior decisions by Corrections. Mr. Jessop now appeals the denial of his requests for records to the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on May 8, 2014, 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 § 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. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
2. Records that are created or maintained for civil, criminal, or administrative purposes, may be classified as a protected record by a governmental entity if the record could reasonably be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code § 63G-2-305(10).
3. Records that if disclosed would reveal recommendations made to the Board of Pardons and Parole by an employee of or contractor for Corrections, the Board of Pardons and Parole, or the Department of Human Services, that are based on the employee’s or contractor’s supervision, diagnosis, or treatment of any person within the board’s jurisdiction may also be classified as a protected record by a governmental entity. Utah Code § 63G-2-305(14).
4. Counsel for Corrections reviewed each of the records requests during the hearing, providing reasoning similar to the reasoning given by Corrections in its denial of Mr. Crosbie’s requests. Counsel also added that since additional documents have been given to Mr. Crosbie after Corrections’ initial denial, all documents responsive to most of his requests have now been provided by Corrections.
5. After having reviewed the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Corrections is not required to provide additional documents to Mr. Crosbie. The Committee finds that Corrections has fulfilled to the best of their abilities Request #’s 15633, 15645, and 15646, and that no more documents exist that are responsive to Mr. Crosbie’s request. Concerning Request #15643, the Committee finds that Corrections does not have a record responsive to Mr. Crosbie’s request for a PPG report.
The issue of whether the polygraph report was properly classified as a protected record pursuant to Utah Code § 63G-2-305(10), was not reviewed by the Committee based upon a prior Committee decision in Kay v. Dept. of Corrections, State Records Case No. 06-12 (Dec. 12, 2006). See, Utah Code § 63G-2-403(4)(b)(i). The Committee also finds that Request #15644 was properly denied based upon its classification as a protected records pursuant to Utah Code § 63G-2-305(14).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Justin Crosbie is DENIED.
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 § 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 § 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 19th day of May 2014,
BY THE STATE RECORDS COMMITTEE
____________________________________
LEX HEMPHILL, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARVIN MELVILLE, Petitioner, vs.
SALT LAKE CITY CORPORATION, Respondent.
DECISION AND ORDER
Case No. 09-04
By this appeal, Marvin Melville “Melville” seeks access to notes, drafts or similar materials prepared by Jeff Niermeyer concerning an affidavit dated and executed by Mr. Niermeyer, an employee of Salt Lake City Corporation on May 22, 2008.
FACTS
On June 10 5, 2008, Melville made a request of the Salt Lake City Public Utilities Department pursuant to the Government Records Access and Management Act. Mr. Melville requested, among other things the notes, produced by Jeff Niermeyer in conjunction with an affidavit drafted by Attorney Richards, Counsel for Alta City. On June 25, 2008, Salt Lake City responded and provided Melville with the records responsive to his request. In its response, the City also indicated it did not have in its possession any draft or similar documents related to Niemeyer’s May 22, 2008 affidavit.
Subsequently, on July 23, 2008, the City notified Melville by letter that certain “draft” notes produced by Mr. Niermeyer had been located, however, such documents were being withheld by the City pursuant to Utah Code Ann. § 63G-2-305(22). Melville appealed the City’s response and a hearing was held on September 10, 2008, whereon the Appeals Board upheld the City’s earlier denial.
In a letter dated September 16, 2008, Christine Meeker, SLC Recorder, indicated that: (1) The Appeals Board lacked authority to compel the City to provide a description of the methods used to locate documents; (2) “That it was the decision of the Board that the City’s response regarding draft documents responsive to Mr. Melville’s document requests was adequate under GRAMA § 63G-2-302(22);” and (3) The Board ordered the City to again search its records for documents responsive to Melville’s request and to provide a description and justification for any documents found, but withheld from Melville.
On October, 8, 2008, the City provided additional records to Melville and identified and/or provided legal justification for redacted materials. On October 14, 2008, Melville appealed SLC’s denial of “draft notes” produced by Jeff Niermeyer to the State Records Committee (“Committee”). Having reviewed the materials submitted by the parties and having heard oral argument and testimony on April 9, 2009, the Committee now 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 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. Records which are temporary drafts or similar material prepared for the originator’s personal use or prepared by the originator for the personal use of an individual for whom the originator is working are not records as defined by GRAMA. See, Utah Code Ann. § 63G-2-103(22)(b)(ii).
3. Drafts, unless otherwise classified as public are protected records, if properly classified by the governmental entity. See Utah Code Ann. § 63G-2-305-(22).
4. After hearing arguments from both parties and reviewing the records/draft notes in camera, the Committee finds that the document prepared by Jeff Niermeyer in association with an affidavit executed May 22, 2008, were temporary drafts or similar material generated for Mr. Niermeyer’s personal use. The notes are not records as defined by GRAMA pursuant to Utah Code Ann. § 63G-2-103(22)(b)(ii). The committee is not convinced and no evidence was presented that the personal notes generated by Mr. Niermeyer were circulated to anyone other than a governmental entity.
ORDER
THEREFORE, IT IS ORDERED THAT the determination of the Salt Lake City Corporation is upheld pursuant to Utah Code Ann. § 63G-2-103(22)(b)(ii), and the appeal of Marvin Melville is denied.
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 16th day of April, 2009.
BY THE STATE RECORDS COMMITTEE
____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LAWRENCE JACKSON, Petitioner, vs.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 10-3
By this appeal, Petitioner, Lawrence Jackson, seeks a waiver of fees charged by the Utah Department of Corrections (“Corrections”) to cover the actual cost of providing Mr. Jackson records he has requested.
FACTS
On or about November 3, 2009, Mr. Jackson submitted a request to Corrections for ten separate statistical data sets regarding prison inmates confined at Utah State Prison located in Draper, Utah. Mr. Jackson requested in part: (1) the number of “black inmates at the Utah State Prison; (2) the “number of black inmates that work for [Corrections];” (3) a list of “black inmates who work at skilled job positions;” (4) a list of inmates working for Corrections with high school and post-high school education; (5) a list of “highest payed (sic) inmates positions of employment, and how many of these employed are black;” (6) how many recently hired inmates for the Corrections furniture and upholstery shop were more qualified for the job positions than Mr. Jackson; and (7) of those recent hires, “how many were black.”
In a letter dated November 24, 2009, Mike Haddon, Deputy Director for Administration of Corrections, responded to Mr. Jackson’s request. Mr. Haddon provided records and/or statistical information as to the number of inmates housed at the Draper prison location and the percentage of inmates who were “black.” In his letter, he indicated that the majority of Mr. Jackson’s requests could only be fulfilled and/or provided after lengthy statistical analysis and writing multiple data extraction programs. He further indicated that while Corrections was not required to compile, format, manipulate, package, summarize, or tailor information pursuant to Utah Code Ann. § 63G-2-201(8), Corrections would perform the statistical analysis requested by Mr. Jackson upon receipt of the future estimated fees/costs of $150.00 pursuant to Utah Code Ann. § 63G-2–203(8)(a)(i).
Mr. Jackson subsequently re-submitted his requests requesting the data be provided without charge citing Utah Code Ann. § 63G-2-203(4). This request was rejected by Mr. Haddon in a letter dated December 5, 2009. Mr. Haddon indicated that based on his review of the issues and applicable GRAMA statutes, Mr. Jackson’s request did not primarily benefit the public, Mr. Jackson was not the subject of the requested records, and his legal rights were not directly implicated. Mr. Haddon further indicated that while Mr. Jackson may be indigent, Utah Code Ann. § 63G-2-203(4) gave Corrections the discretion concerning whether or not to fulfill his request without charge, and based upon policy reasons, Corrections would not waive the $150.00 fee.
Mr. Jackson now appeals to the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on February 11, 2010, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (“GRAMA”) specifies that a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code Ann. § 63G-2-203(1). This fee shall be approved by the governmental entity’s executive officer. Id.
2. In the case of fees for a record that is the result of computer output other than word processing, the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information for a particular user may be charged. Utah Code Ann. § 63G-2-203(2)(a)(iii).
3. A governmental entity may fulfill a record request without charge, and is encouraged to do so when it determines that: (1) releasing the record primarily benefits the public rather than a person; (2) the individual requesting the record is the subject of the record; or (3) the person’s legal rights are implicated. Utah Code Ann. § 63G-2-203(4).
4. A governmental entity may require payment of past fees and future estimated fees before beginning to process a request if the fees are expected to exceed $50.00. Utah Code Ann. § 63G-2-203(8).
5. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code Ann. § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code Ann. § 63G-2-205. See, Utah Code Ann. § 63G-2-203(6). The adjudicative body hearing the appeal “has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied,” Utah Code Ann. § 63G-2-203(6)(b).
6. At the hearing, Corrections argued that it would incur actual costs of at least $150.00 because it would be required to expend several hours programming, compiling, formatting, and packaging Mr. Jackson’s requests. Because of the significant cost and time associated with fulfilling Mr. Jackson’s requests, Corrections determined that it was proper to require Mr. Jackson to pay the estimated future fees of $150.00 before beginning to process his request pursuant to Utah Code Ann. § 63G-2-203(8).
7. Corrections further argued that the language of Subsections –203(1) and (2) and the use of the word “may” denotes the Legislature’s intent that governmental entities have discretionary authority as to whether or not records should be provided without charge. Therefore, Corrections was not statutorily obligated to provide the records requested by Mr. Jackson without charge, even if he met all the conditions of Utah Code Ann. § 63G-2-203(4).
8. The Committee having reviewed the submissions of the party’s and having heard argument at the hearing of this matter, finds that based upon the circumstances of the present case, Corrections’ denial of Mr. Jackson’s request for a fee waiver was unreasonable. Mr. Jackson is impecunious, Mr. Jackson’s legal rights may be directly implicated by the information in the records he seeks, and Mr. Jackson’s request may primarily benefit the public rather than himself because of the subject matter of the request. Accordingly, because Mr. Jackson meets the criteria of Utah Code Ann. § 63G-2-203(4)(a) and (c) and because Corrections offered no reason for the denial other than that the decision is discretionary with the agency, and would result in requiring Corrections to do research for any prisoner wanting any statistical analysis, the Committee finds the determination by the Department to deny Mr. Jackson a waiver of fees to fulfill his request was not “reasonable.”
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Lawrence Jackson is upheld and the $150.00 estimated fee for actual costs of Respondent, the Department of Corrections shall be waived and Corrections shall provide Mr. Jackson the records/data responsive to his request without charge.
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 18th day of February 2010.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LINDA HOUSKEEPER, Petitioner, vs.
UTAH COUNTY ATTORNEY’S OFFICE, Respondent.
CONTINUANCE ORDER
Case No. 10-19
Petitioner, Linda Houskeeper, appealed to the Utah State Records Committee (“Committee”) a decision by Respondent, the Utah County Attorney’s Office to deny her records request made pursuant to the Government Records Access and Management Act (“GRAMA”). At a public hearing held on November 18, 2010, it was determined that further briefing was necessary concerning certain issues in order for the Committee to issue a decision. Accordingly, IT IS HEREBY;
ORDERED: that at the January 13, 2011 meeting of the Committee, the hearing on this matter shall resume.
ORDERED: that the parties shall have the opportunity to submit briefing to the Committee no later than December 30, 2010, their views concerning the relevance of an expungement order regarding [redacted] to the present case.
This Order was made without objection and with the consent of the parties.
Dated this 29th day of November 2010.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DAN SCHROEDER, Petitioner, vs.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 11-12
By this appeal, Petitioner, Dan Schroeder, seeks access to documents regarding a criminal investigation of “Envision Ogden” by the Utah Attorney General’s Office (AG’s Office) that commenced in March 2009 and concluded in March 2011.
FACTS
On March 5, 2011, Mr. Schroeder requested from the AG’s Office “any and all reports, correspondence, subpoenas, notes, and records gathered as evidence” regarding an investigation of “Envision Ogden.” The AG’s Office provided some records but denied the release of other records including: (1) a draft press release (2) a post it note with handwritten information; (3) a financial summary spreadsheet regarding contributions that were made to “Envision Ogden;” and (4) bank records from Wells Fargo Bank regarding the “Envision Ogden” account. On March 28, 2011, Mr. Schroeder appealed the partial denial to Deputy Attorney General Kirk Torgensen. Mr. Torgensen upheld the previous denial finding that the information sought by Mr. Schroeder was protected pursuant to Utah Code § 63G-2-305(16)-(18) as privileged information.
Mr. Schroeder now appeals to the Utah State Records Committee (“Committee”). In his appeal, Mr. Schroeder has narrowed the scope of his request to the following documents:
|
BATES STAMPED |
DOCUMENT IDENTIFICATION # |
|
0004 |
1. Post-It Note names and phone numbers |
|
00006-7 |
2. Draft Press Release |
|
000011-16 |
3. Register Report (Quicken) created from Wells Fargo Records |
|
00131-140 |
4. Wells Fargo Business Account Application |
|
00144-145 |
5. Declaration for Records of Regularly conducted Business Activity (Deposits) |
|
00149-441 |
6. Bank statements, Deposits slips, Deposited checks |
The Committee, having reviewed the documents in camera and having heard oral argument and testimony on August 11, 2011, now 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 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. Pursuant to Utah Code Ann. § 63G-2-305(16), (17) & (18), records prepared by or on behalf of a governmental entity that are records disclosing an attorney’s work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation, are considered protected records if properly classified by governmental entity. See also, S. Utah Wilderness Alliance v. Auto. Geographic Reference Ctr., 2008 UT 88, 200 P.3d 643.
3. Utah Code Ann. § 63G-2-103(22)(b)(i)-(ii) states that a "record" does not mean:
(i) a personal note or personal communication prepared or received by an employee or officer of a governmental entity in the employee's or officer's private capacity; or
(ii) a temporary draft or similar material prepared for the originator's personal use or prepared by the originator for the personal use of an individual for whom the originator is working.
4. Generally, records describing an individual's finances are private if properly classified by a governmental entity. Utah Code Ann. § 63G-2-302(2)(b). See, Utah Code Ann. § 63G-2-302(2)(b)(i-iii) for exceptions.
5. A record to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, including records for which access is governed or restricted as a condition of participation in a state or federal program or for receiving state or federal funds, are not public pursuant to Utah Code Ann. § 63G-2-201(3)(b)(3).
6. A “draft” is a protected record if properly classified by a governmental entity “unless otherwise classified as public.” Utah Code Ann. § 63G-2-305(22).
7. Based upon a preponderance of the evidence, the arguments of the parties, and a review of the documents submitted by the AG’s Office in camera, the Committee finds the following: Document #1 (post-it-note) was improperly classified as a non-record pursuant to Utah Code Ann. § 63G-2-103(22)(b)(i) and further, it is also improperly classified as protected pursuant to Utah Code Ann. § 63G-2-305(16) & (17). The Committee is convinced the record contains pertinent information which does not qualify as protected, based upon the above referenced statues, and therefore, should be released as a public record.
8. Document #2 (Draft-Press Release) is properly classified as a draft and therefore, is a protected record pursuant to Utah Code Ann. § 63G-2-305(22).
9. Document #3 (Quicken Report) was improperly classified as a protected record pursuant to Utah Code Ann. § 63G-2-305(16) (17) & (18). The Committee is convinced the documents are not records prepared by or on behalf of the AG’s Office disclosing an attorney’s work product, including the mental impressions or legal theories of an attorney or other representative of the AG’s Office concerning litigation. Accordingly, the record is public and should be released.
10. Document #4 (Wells Fargo Business Account Application) and Document #5 (Declaration for Records of Regularly conducted Business Activity) were properly classified pursuant to Utah Code Ann. §63G-2-201(3)(b) in that they are records to which access is restricted by another state statute. Under the Utah Financial Institutions Act, the existence of an account, the opening and closing dates of an account, the name under which an account is held, and the name, address, and telephone number of an account holder is a “non-protected record” if the record is maintained by a financial institution to facilitate the conduct of the financial institution’s business regarding a person or account. Utah Code Ann. § 7-1-1001(1)(c). A “protected record” is “a record that is not defined as a non-protected record.” Utah Code Ann. § 7-1-1001(1)(d). Accordingly, the Committee finds that the records should be released pursuant to the aforementioned statute, but only after the redaction of any private and/or protected information contained within the records.
11. Document #6 (bank statements, etc.) are private records pursuant to Utah Code Ann. § 63G-2-302(2)(b)&(d) and should not be disclosed. The records are documents describing an individual’s finances, and the release of such documents would constitute a clearly unwarranted invasion of privacy.
|
BATES STAMPED |
DOCUMENT |
CLASSIFICATION OF DOCUMENT AS DETERMINED BY THE COMMITTEE |
|
0004 |
1. Post-It Note |
Public |
|
00006-7 |
2. Draft Press Release |
Protected, Utah Code Ann. §63G-2-305(22) |
|
000011-16 |
3. Quicken Financial Summary Report |
Public |
|
00131-140
00144-145 |
4. Wells Fargo Business Account Application and; |
Non-public, but subject to release after proper redactions are in place, Utah Code Ann. §63G-2-201(3)(b) |
|
00149-441 |
6. Bank statements, Deposit slips, Deposited Checks |
Private, Utah Code Ann. §63G-2-302(2)(b)&(d) |
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Dan Schroeder is (1) DENIED in part pertaining to documents identified as private records and non-records, in the table above; and (2) the appeal of Dan Schroeder is GRANTED in part pertaining to documents identified as public records and public but subject to redactions in the above table. The Utah Attorney General’s Office is hereby ordered to provide said public records to Mr. Schroeder within ten (10) days.
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 22nd day of August 2011
BY THE STATE RECORDS COMMITTEE
____________________________________
LEX HEMPHILL, Vice Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CHRIS VANOCUR/ABC 4 NEWS, Petitioner, vs.
UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.
DECISION AND ORDER
Case No. 10-5
By this appeal, Petitioner, Chris Vanocur, Senior Reporter with ABC 4 News, (“Petitioner”), seeks access to the arrest records and dashboard camera video relating to the arrest of Sheldon Killpack on January 15, 2010.
FACTS
On January 15, 2010, Sheldon Killpack was arrested and charged for driving while intoxicated. At the time of his arrest, Mr. Killpack was serving as a Utah State Senator. On the same day as his arrest, Mary Rice, on behalf of ABC 4 News, made a Government Records Access and Management Act (“GRAMA”) request to Respondent, Utah Department of Public Safety (“Respondent”) for “[a]rrest records and dashboard camera video regarding the arrest of Utah Senator Sheldon Killpack on January 15, 2010.” The reason for the request was “[p]ublic information for media broadcast purposes.” In a letter dated January 19, 2010, Sargent Jeff Nigbur, Public Information Officer for Respondent, denied the records request finding that “[i]ncident reports and all accompanying data, such as dashcam videos, have been classified by the [Utah Highway Patrol] as protected records pursuant to Utah Code Ann. § 63G-2-305(9).”
In a letter dated January 21, 2010, Petitioner appealed Respondent’s denial of the records request. Mr. Vanocur wrote that “ABC 4 strongly believes both the incident report and the dashcam video are very much in the public’s interest as provided for under GRAMA.” On January 28, 2010, D. Lance Davenport, Commissioner of the Utah Department of Public Safety denied Petitioner’s appeal. Mr. Davenport wrote that the requested records were “created and is maintained by the Utah Highway Patrol for criminal enforcement purposes.” Mr. Davenport further wrote that “the release of the records reasonably could be expected to interfere with enforcement proceedings or would create a danger of depriving a person of a right to a fair trial or impartial hearing.”
Petitioner now appeals to the Utah State Record Committee (“Committee”). Pursuant to Utah Code Ann. § 63G-2-403(8) and Utah Admin. Code R. 35-1-2(7), the Salt Lake Tribune and the Deseret News joined Petitioner and argued before the Committee as interested third parties. The Committee having reviewed the arguments submitted by the parties, and having convened on February 11, 2010, a hearing to hear oral argument and testimony, now issues the following Decision and Order.
STATEMENT OF REASONSE 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. The requested records were created or maintained for civil, criminal, or administrative purposes or audit purposes, or for discipline, licensing certification, or registration purposes are protected records if release of the records could reasonably be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code Ann. § 63G-2-305(9)(a).
3. During the hearing, counsel for Respondent stated that the requested records were used to investigate whether criminal charges should be filed against Mr. Killpack. However, counsel for Respondent also stated that the investigation had been completed and criminal charges have been filed against Mr. Killpack. Counsel did not know if the requested records would be used in any future investigations.
4. Utah Code Ann. § 63G-2-305(9)(c) states that records can be protected if disclosure of the records would create a danger of depriving a person of a right to a fair trial or impartial hearing.
5. Petitioner argued that the release of the arrest records and dashboard camera video would not deprive Mr. Killpack of his right to a fair trial, noting that there are numerous instances where similar records have been released prior to the completion of a criminal trial of the subject of the records. Petitioner claimed that because of the news coverage Mr. Killpack has already received, the additional information from the requested records would not reasonably deprive Mr. Killpack of his constitutional right to a fair trial.
6. Petitioner also argued that based upon the fact that Mr. Killpack was a Utah State Senator at the time of his arrest , release of the requested records should be within the public’s right to access to information concerning the conduct of the public’s business. See, Utah Code Ann. § 63G-2-102(1)(a).
7. Petitioner further argued that the records were initial contact reports. Respondent argued that the records could not be characterized as initial contact reports because they were instead a “four page DUI form/report and video.”
8. An initial contact report means an initial written or recorded report, however titled, prepared by peace officers engaged in public patrol or response duties describing official actions initially taken in response to either a public complaint about or the discovery of an apparent violation of law. Utah Code Ann. § 63G-2-103(14)(a). Initial contact reports are normally public. Utah Code Ann. § 63G-2-301(3)(g).
9. After hearing arguments and reviewing the materials submitted by the parties, the Committee finds Respondent’s claim that the records should be protected pursuant to Utah Code Ann. § 63G-2-305(9) unpersuasive. The evidence presented showed that any investigation of Mr. Killpack had been completed. Further, Respondent was unable to demonstrate how the release of the records would create a danger of depriving him of a right to a fair trial. Additionally, the Committee finds that the requested records are “initial contact reports” and therefore, are public records.
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner Chris Vanocur/ABC 4 News, is upheld, and Respondent, Department of Public Safety is hereby ordered to release the initial arrest records and dashboard camera video regarding the arrest of Mr. Killpack pursuant to Utah Code Ann. § 63G-2-301(3)(g).
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 18th day of February 2010.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
HEIRS OF RENEE FLECKENSTEIN, Petitioner, vs.
SANDY CITY, Respondent.
ORDER OF CONTINUANCE
Case No. 10-21
Petitioner, the Heirs of Renee Fleckenstein, appealed to the Utah State Records Committee (“Committee”) a decision by Respondent, Sandy City, Utah, to deny a records request made pursuant to the Government Records Access and Management Act (“GRAMA”). At a public hearing held on December 16, 2010, the parties requested a continuation of the hearing in order to allow the parties sufficient time to reach a settlement.
Accordingly, IT IS HEREBY;
ORDERED: that at the February 2011 meeting of the Committee, the hearing on this matter shall resume unless otherwise dismissed by the parties.
This Order was made without objection and with the consent of the parties.
Dated this 16th day of December 2010.
",Continuance,2010-12-16T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JUDY FAHYS, SALT LAKE TRIBUNE, Petitioner, vs.
UTAH DEPARTMENT OF COMMUNITY AND CULTURE, Respondent.
DECISION AND ORDER
Case No. 11-14
By this appeal, Petitioner, Judy Fahys, Environment Reporter for the Salt Lake Tribune, appeals a denial from Respondent, Department of Community and Culture (“DCC”), of her request for records pertaining to staff changes and/or restructuring in the archaeology section of DCC.
FACTS
In a letter dated June 27, 2011, Ms. Fahys submitted a records request to DCC pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Fahys asked for copies of communications between DCC and “other executive branch offices, offices of the Utah State Legislature, the Utah Transit Authority and the Kane County Water Conservancy District” regarding the “positions of the State Archaeologist, the assistant to the state archaeologist, and the physical anthropologist.” Ms. Fahys amended her request in a letter dated July 7, 2011 narrowing the period of time from “July 1, 2005 thru today.”
In an e-mail dated July 11, 2011, Michael Hansen, Acting Executive Director for DCC wrote that since the request involved “documents and communications of numerous people over the last six years,” DCC would be unable to provide the information within five business days. Mr. Hansen added:
We want very much to provide you the information you are requesting, but the volume of work required to do so is very high, so I need to let you know that we will not be able to provide it in the requested time frame [due] to the extraordinary circumstances. Please let me know how you would like to proceed.
However, in a later e-mail on the same day, Mr. Hansen wrote that “access to that information is denied because the request is not ‘reasonably specific’ according to 63G-2-204(1)(b).” Mr. Hansen later wrote to Ms. Fahys on July 12, 2011 that he “was advised to just deny that specific request because our people couldn’t even calculate the cost.” When Ms. Fahys inquired about the “GRAMA appeal procedures” for DCC, Mr. Hansen responded in an e-mail dated August 11, 2011 that “[t]echnically, the department denied that last request, so your next step would be to appeal to the State Records Committee.”
Petitioner now appeals to the Utah State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 8, 2011, now 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 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. Utah Code Ann. § 63G-2-204(1)(b) requires a person making a request for a record to furnish the governmental entity with a written request containing “a description of the record requested that identifies the record with reasonable specificity.”
3. After reviewing the arguments submitted by the parties and hearing oral arguments and testimony, the Committee is convinced that Petitioner’s request for records of communications between DCC and specified executive and legislative offices was “reasonably specific” pursuant to Utah Code Ann. § 63G-2-204(1)(b).
Even though the requested records may not be in a form normally maintained by DCC, (See also, Utah Code Ann. § 63G-2-203), Petitioner’s request was reasonably specific enough for DCC to understand what records were being requested in order to fulfill the request.
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Judy Fahys, Environment Reporter for the Salt Lake Tribune, is GRANTED.
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 16th day of September 2011.
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANDREW MORSE, SNOW CHRISTENSEN & MARTINEAU, Petitioner, vs.
CANYONS SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 12-07
By this appeal, Petitioner, Andrew Morse of Snow Christensen & Martineau, appeals a denial from Respondent, Canyons School District (“Canyons”), of his request for records pertaining to the grievance proceedings of a former Canyons employee against Canyons School District.
FACTS
In a letter dated December 14, 2011, Mr. Morse submitted a records request to Canyons pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Morse requested “[a]ll documents pertaining to Alta Vice Principal Mark Montague’s grievance procedure against the Canyons School District.”
Mr. Morse’s request was denied through Canyons’ legal counsel, Paul D. Van Komen of Burbidge & White, LLC, in a letter dated December 29, 2011. Canyons claimed that the requested documents could not be disclosed because they were “private” records pursuant to Utah Code § 63G-2-302(2)(a). Canyons also claimed that Utah Code § 63G-2-301(3)(o) did not apply to the requested documents because the “grievance of any disciplinary action has not been completed and the charges on which any disciplinary action were based have not been sustained.” Canyons further claimed that some of the requested records were protected under Utah Code § 63G-2-305 (9), (16), (17), (18), and (25) as attorney client communications, attorney work product and personnel recommendations the disclosure of which would constitute “clearly unwarranted invasions of personal privacy.”
Mr. Morse appealed to Canyons Superintendent, Dr. David Doty, in a letter dated January 24, 2012. The appeal included grounds and legal authority to support release of the records. Mr. Morse claimed that Utah Code § 63G-2-301(3)(o) did apply because the grievance procedure had concluded; that the records were not private under Utah Code § 63G-2-302(2)(a) because the records were about a grievance procedure and not a performance evaluation; and that the attorney client privileges did not apply to the requested records. Dr. Doty denied the appeal based on the records being private under Utah Code §63G-2-302(2)(a), protected under -305(25), and protected under -305(9), (16), (17), and (18).
Mr. Morse now appeals to the Utah State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on April 12, 2012, now 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. Pursuant to Utah Code § 63G-2-302(2)(a), “records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities” are private when properly classified by a governmental entity.
3. Pursuant to Utah Code § 63G-2-301(3)(o) “ records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee are normally public if:
(i) the disciplinary action has been completed and all time periods for administrative appeal have expired; and
(ii) the charges on which the disciplinary action was based were sustained.”
4. After reviewing the arguments submitted by the parties and hearing oral arguments and testimony, the Committee is convinced that Petitioner’s request for records pertaining to the grievance proceedings of a former employee against Canyons were properly classified as private pursuant to Utah Code § 63G-2-302(2)(a) because the records are concerning a current or former employee of a governmental entity. The Committee further finds that the records are not subject to public release under Utah Code § 63G-2-301(3)(o) because the disciplinary action was not sustained.
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Andrew Morse, Snow Christensen & Martineau, is DENIED.
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 § 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 § 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 20th day of April 2012.
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT EASTMOND/KSL TV, Petitioner, vs.
CARBON COUNTY, Respondent.
DECISION AND ORDER
Case No. 10-7
By this appeal, Petitioner, Scott Eastmond, Vice President and General Counsel for KSL TV, (“Petitioner”), seeks access to the police report and a surveillance video relating to an alleged assault which took place at Carbon High School.
FACTS
On September 18, 2009, an incident occurred at Carbon High School between Robert L. Potts and Angelo Pappas. Mr. Pappas was subsequently arrested and charged with assault and threat against life or property. At the time of the incident Mr. Potts was serving as the Carbon High School, Volleyball Team Coach. On or about November 9, 2009, Shara Park, Reporter for KSL made a Government Records Access and Management Act (“GRAMA”) request to Respondent, Price City Police Department for the police reports and surveillance video associated with this case. Ms. Park’s supervisor, Maria Titze appealed the Price City Police Department’s denial of KSL’s GRAMA request to Jeremiah Humes, Deputy Carbon County Attorney. Mr. Humes was unaware of the prior request to Price City Police and therefore treated the appeal as an initial request. Citing Utah Code Ann. § 63G-2-305(9)(c), Mr. Humes denied KSL’s appeal/request, however he did provide Respondent with the Information/charging document and date the accused was to make his first court appearance.
Scott E. Eastmond, General Counsel for KSL appealed Mr. Humes denial to the Carbon County Commission which heard the appeal on January 6, 2010. The County Commission reviewed the appeal and held a closed session to review the requested records. The Carbon County Commission determined that the appeal should be denied as it pertained to the video and police report, but ordered the County Attorney’s Office to provide additional information in the form of a press release. This additional information was to include, a summary of the facts of the case, names of the individuals involved, the date and location of the incident. The County Attorney’s office/Mr. Humes complied with the Carbon County Commissions order and provided KSL TV with a press release containing the above listed information.
Petitioner now appeals to the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, and having convened on March 18, 2010, 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 created or maintained for civil, criminal, or administrative purposes or audit purposes, or for discipline, licensing certification, or registration purposes are protected records if release of the records could reasonably be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code Ann. § 63G-2-305(9)(a).
3. During the hearing, counsel for Respondent stated that the requested records were used to investigate whether criminal charges should be filed against Mr. Pappas and that the police report and video were being maintained for enforcement purposes pursuant to Subsection 305.
4. Utah Code Ann. § 63G-2-305(9)(c) states that records can be protected if disclosure of the records would create a danger of depriving a person of a right to a fair trial or impartial hearing.
5. Petitioner argued that the release of the police report and video would not deprive Mr. Pappas of his right to a fair trial, noting that there are numerous instances where similar records have been released prior to the completion of a criminal trial. Petitioner argued that KSL TV has significant influence in this small community and coupled with pervasive local interest, it may make empanelling a jury in a criminal prosecution in this case extremely difficult if not impossible, thereby depriving Mr. Pappas of his right to a fair trial.
6. Petitioner also argued that based upon the fact that Mr. Potts was employed by the School District as the Volleyball Coach at the time of the incident, release of the requested records should be within the public’s right to access to information concerning the conduct of the public’s business. See, Utah Code Ann. § 63G-2-102(1).
7. Petitioner further argued that the records contained or should have contained initial contact reports. Respondent argued that due to the unique circumstances of this case, there were no initial contact reports generated and that only a subsequent investigative report existed.
8. An initial contact report means an initial written or recorded report, however titled, prepared by peace officers engaged in public patrol or response duties describing official actions initially taken in response to either a public complaint about or the discovery of an apparent violation of law. Utah Code Ann. § 63G-2-103(14)(a). Initial contact reports are normally public. Utah Code Ann. § 63G-2-301(3)(g).
9. After hearing arguments and reviewing the materials submitted by the parties, the Committee finds Respondent’s claim that the records should be protected pursuant to Utah Code Ann. § 63G-2-305(9) persuasive and that the records other than the first page of the police report were properly classified as “private” by the governmental entity. Based on an in camera, review of the police report, the Committee finds the first page of the police report is consistent with an initial contact report and is therefore improperly classified. Accordingly, the first page of the police report should be released to the Petitioner after any private information contained therein is redacted.
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Scott Eastmond/KSL TV, is upheld as to the first page of the police report, and denied as to the remainder of Petitioner’s request for the surveillance video and the remaining police report.
Carbon County is hereby ordered to release the first page of the police report after first having redacted any private information contained therein.
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 29th day of March 2010.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SALT LAKE TRIBUNE, Petitioner, vs.
UTAH DEPARTMENT OF TRANSPORTATION, Respondent.
DECISION AND ORDER
Case No. 10-23
By this appeal, Petitioner, the Salt Lake Tribune (“Tribune”), seeks text and e-mail messages from Respondent, the Utah Department of Transportation (“UDOT”).
FACTS
In a letter dated September 27, 2010, Robert Gehrke, a reporter with the Tribune, made a request to UDOT pursuant to the Utah Government Records Access and Management Act (“GRAMA”) for “copies of correspondence, meeting minutes or other records since Aug 1, 2009 involving UDOT employees and the following parties: Wadsworth Bros. Construction, R.L. Wadsworth Construction, or Guy Wadsworth.” Mr. Gehrke also stated in his letter that he did not want technical bid documents for the Interstate 15 CORE project, but instead was “interested in correspondence relating to that contract.”
In response to the request, UDOT provided 31 pages of records, which included one text message it had gathered as part of an investigation relating to the Interstate 15 reconstruction contract. UDOT also indicated with their response that there were other text and e-mail messages that had been withheld on the grounds that they were personal communications not subject to release pursuant to Utah Code Ann. §§ 63G-2-103(22)(b)(i) or 63G-2-302(2)(a) and (d).
In a letter dated October 5, 2010, and signed by Mr. Gehrke, the Tribune appealed the decision to not disclose the text and e-mail messages to John Njord, Executive Director of UDOT. In the letter, Mr. Gehrke stated that the messages were public because it was “doubtful that the UDOT employee in question had a realistic expectation of privacy when the messages at issue were sent from a taxpayer-funded phone, through a taxpayer-funded provider and from a taxpayer-funded computer presumably though the state computer network.” Mr. Njord denied the Tribune’s appeal in a letter dated October 11, 2010, stating that he agreed with the initial determination that the messages “represent personal communications not subject to release under GRAMA.”
Mr. Gehrke filed an appeal on behalf of the Tribune with the Utah State Record Committee (“Committee”). Guy Wadsworth and the UDOT employee whose messages are the subject of the Tribune’s request also participated in the proceedings as third parties, pursuant to Utah Code Ann. § 63G-2-403(6). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on December 9, 2010, 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. “Record” means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics: (i) that is prepared, owned, received, or retained by a governmental entity or political subdivision; and (ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code Ann. § 63G-2-103(22)(a).
3. “Record” does not mean a personal note or personal communication prepared or received by an employee or officer of a governmental entity in the employee’s or officer’s private capacity. Utah Code Ann. § 63G-2-103(22)(b)(i).
4. UDOT argued that the text and e-mail messages had been withheld on the grounds that they were personal communications not subject to release pursuant to Utah Code Ann. §§ 63G-2-103(22)(b)(i) or 63G-2-302(2)(a) and (d). The female UDOT employee had used her state issued cell phone to receive and send text messages with an individual affiliated with Wadsworth Bros. Construction and R.L. Wadsworth Construction. UDOT claimed that the messages were strictly personal and were not related to the UDOT employee’s duties with UDOT.
5. After reviewing in camera the disputed messages, the Committee agrees with UDOT’s argument that the messages were personal communications prepared or received by the UDOT employee in her private capacity. Accordingly, the messages are not considered records pursuant to Utah Code Ann. § 63G-2-103(22)(b)(i) and cannot be disclosed through a GRAMA request.
6. The Committee was not persuaded by the Tribune’s argument that an employee of a governmental entity has no expectation of privacy when the messages at issue were sent from a taxpayer-funded phone, through a taxpayer-funded provider or from a taxpayer-funded computer, presumably though the state computer network. While the employee may not have an expectation of privacy to having a governmental entity review personal communications “prepared, owned, received or retained by a governmental entity,” the language of Utah Code Ann. § 63G-2-103(22)(b)(i) makes it clear that there is an expectation that personal communications prepared in a private capacity will not become public records.
7. Additionally, because of the personal nature of the messages, these messages are not responsive to the Tribune’s request for “correspondence relating to” the Interstate 15 reconstruction project. Therefore, the messages are outside of the Tribune’s GRAMA request and UDOT had no obligation to disclose the messages.
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Robert Gehrke/Salt Lake Tribune is denied.
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 16th day of December 2010.
____________________________
LEX HEMPHILL Chair pro tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JUDY FAHYS, SALT LAKE TRIBUNE, Petitioner, vs.
UTAH DEPARTMENT OF COMMUNITY AND CULTURE, Respondent.
ORDER OF CONTINUANCE
Case No. 12-01
The above matter having come before the State Records Committee (“Committee”) for oral argument and testimony on January 12, 2012, the parties appearing and the Committee having received the pleadings, evidence and documents from the Respondent, the Utah Department of Community and Culture for an in camera review, and such being too numerous to review in its entirety during the hearing on this matter, IT IS HEREBY;
ORDERED: that the in camera review and the hearing of this matter are hereby continued until February 16, 2012 at 9:30 A.M., and
ORDERED: that Respondent provide the documents to the Executive Secretary for the Committee to allow the documents to be securely held at the State Archives Building for further in camera review by individual Committee members.
This Order was made without objection and with the consent of the parties.
Entered this 20th day of January 2012
BY THE STATE RECORDS COMMITTEE
____________________________________
Betsy Ross, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL GUBAREV, Petitioner, vs.
UTAH DEPARTMENT OF WORKFORCE SERVICES, Respondent.
DECISION AND ORDER
Case No. 12-17
By this appeal, Petitioner, Michael Gubarev, seeks to appeal the denial of his request for records regarding administrative adjudicative decisions from the Department of Workforce Services (“DWS”) relating to interpreters/translators working for certain employers/businesses.
FACTS
On or about January 26, 2012, Mr. Gubarev made a records request to DWS pursuant to the Utah Government Records Access and Management Act (“GRAMA”). DWS denied his request on February 2, 2012, indicating that records sought by Mr. Gubarev were protected under Utah Code §§ 63G-2-305(4) & (9) and 35A-4-312. On July 26, 2012, Mr. Gubarev appealed the denial of his records request to Kristen Cox, Executive Director for DWS. Ms. Cox denied Mr. Gubarev’s appeal affirming the previous findings that the records sought by Petitioner are protected records pursuant to Utah Code § 63G-2-305(4) and (9) and private records pursuant to Utah Code § 35A-4-312. Mr. Gubarev now appeals the denial to the State Records Committee (“Committee”). The Committee having reviewed the written submissions of the parties and having heard oral argument and testimony on September 13, 2012, 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 § 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. Final opinions, including concurring and dissenting opinions, and orders that are made by a governmental entity in an administrative, adjudicative, or judicial proceeding, are normally public, except that if the proceedings were properly closed to the public, the opinion and order may be withheld to the extent that they contain information that is private, controlled or protected. See Utah Code § 63G-301(2)(c).
3. Utah Code § 35A-4-312 details when information obtained by DWS may or may not be disclosed and also states in part that “information obtained under this chapter or obtained from an individual may not be published or open to public inspection in any manner revealing the employing unit’s or individual’s identity.” See, Utah Code § 35A-4-312(3). Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, are protected, if release of the records reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings. See Utah Code § 63G-2-305(9)(b). Additionally, records the disclosure of which could cause commercial injury to, or confer a competitive advantage upon a potential or actual competitor of, a commercial project entity as defined in Utah Code § 11-13-103(4) are protected if properly classified by the governmental entity. Utah Code § 63G-2-305(4).
4. At the hearing, the Records Officer for DWS argued that access to records and/or decisions in cases regarding companies was prohibited by statute because such release may divulge how those companies treat their employees and reveal business model information they would not want released to their competitors. DWS also argued that the records/decisions from these other companies were maintained for audit and/or enforcement purposes and were private records pursuant to Utah Code § 63G-2-305(9)(b) and therefore could not be released to petitioner. DWS acknowledged the provisions of Utah Code § 63G-301(2)(c), but claimed that Utah Code § 35A-4-312 was the controlling statute because it was more specific to DWS records/decisions.
5. Mr. Gubarev argued that he should be allowed access to the administrative decisions/records he requested and that DWS could comply with Utah Code § 35A-4-312 by redacting the names and any other information required by that section from the records before releasing the records to him. Mr. Gubarev further argued that Utah Code § 63G-2- 305(9) would not apply in his case because there would not be any commercial damage to any other company if the names and other identifying information is redacted prior to the release of the records. Finally, Mr. Gubarev claimed that since he was requesting final orders/decisions, there would be no ongoing audit that would be interfered with as a result of the release of the prior decisions.
6. After hearing the arguments of the parties, having reviewed their submissions, and having reviewed some of the records in camera, the Committee finds that the records requested by Mr. Gubarev are public records because they are final opinions and/or decisions of an administrative adjudicative proceeding pursuant to Utah Code § 63G-2-301(2)(c) which should be made available to the public for review. The Committee also finds that the records requested by Mr. Gubarev can be redacted in such a way to protect the employing unit and employees’ information pursuant to the requirements of Utah Code § 35A-4-312.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Gubarev is upheld and that the Utah Department of Workforce Services shall release all records responsive to Petitioner’s request after having first redacted any information required by Utah Code § 35A-4-312.
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 § 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 § 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 24th day of September, 2012.
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
R. K. SHIMABUKURO, Petitioner, vs.
WEBER COUNTY, Respondent.
DECISION AND ORDER
Case No. 10-12
By this appeal, Petitioner, R. K. Shimabukuro seeks access to records including notes, drafts or similar materials prepared by Respondent, Weber County, Utah, (“Weber County”) supporting the County’s “Board of Equalization Decision” associated with the tax assessment of real property owned by Mr. Shimabukuro.
FACTS
On or about February 26, 2010, Mr. Shimabukuro made a records request of Weber County pursuant to the Government Records Access and Management Act (“GRAMA”) for the above-referenced records. On April 15, 2010 and April 27, 2010, Weber County responded to Mr. Shimabukuro’s request, granting it in part, but also denying it in part. Weber County provided Mr. Shimabukuro a copy of the final appraisal report. However, Weber County withheld certain documents used by the appraiser with regard to the subject property owned by Mr. Shimabukuro pursuant to Utah Code Ann.§ 63G-2-305(1) and § 63G-2-309. Weber County also denied access to approximately 100 documents in the file based on its determination that documents contained in the file were “drafts,” and not records pursuant to Utah Code Ann. § 63G-2-103(22)(b), or in the alternative, the “drafts” were protected records pursuant to § 63G-2-305(22).
Mr. Shimabukuro has now filed an appeal with the State Records Committee (“Committee”). The issue heard by the Committee regarded the draft documents contained in the appraiser’s file. Having reviewed the materials submitted by the parties and having heard oral argument and testimony on June 10, 2010, the Committee now 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 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. A temporary draft or similar material prepared for the originator’s personal use or prepared by the originator for the personal use of an individual for whom the originator is working are not records as defined by GRAMA. Utah Code Ann. § 63G-2-103(22)(b)(ii).
3. Drafts, unless otherwise classified as public, are protected records if properly classified by the governmental entity. See, Utah Code Ann. § 63G-2-305(22).
4. Unless otherwise classified as private under Utah Code Ann. § 63G-2-203, records or parts of records regarding the tax status for real and personal property filed with or maintained by county recorders, clerks or treasurers are public pursuant to Utah Code Ann. § 63G-2-103(2)(g).
5. At the hearing, Weber County argued that the “appraiser’s file” did not contain public records, but rather consisted of drafts and/or notes used by the appraiser in his analysis of the subject property. The County further argued such drafts and/or notes were for the “personal use” of the appraiser in producing his final “appraisal report.”
6. After hearing arguments from both parties, the Committee finds that the based upon a preponderance of the evidence, Weber County failed to show that the documents in question are either protected pursuant to Utah Code Ann §§ 63G-2-301(2)(g) or 63G-2-305(22). Further, the Committee is not convinced the documents contained in the “appraiser’s file” contain temporary drafts for the personal use of the appraiser and therefore, not records as defined by Utah Code Ann. § 63G-2-103(22)(b). Instead, the Committee is convinced that the documents associated with the “drafts” are public records and finds that the records should be released to Mr. Shimabukuro.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of R. K. Shimabukuro is granted and Weber County shall within ten (10) days provide Petitioner access to the records contained in the appraiser’s file, with the exception of proprietary “MLS” documents associated with the tax assessment of the real property owned by Petitioner.
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 17th day of June, 2010.
BY THE STATE RECORDS COMMITTEE
____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRUCE FORDHAM, Petitioner, vs.
UTAH DEPARTMENT OF HUMAN RESOURCES, Respondent.
DECISION AND ORDER
Case No. 11-05
By this appeal, Petitioner, Bruce Fordham, seeks to appeal a partial denial of his records request for records associated with a case involving Petitioner and a resident in the Utah State Development Center.
FACTS
On or about December 8, 2010, Mr. Fordham made a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to the Utah Department of Human Services (“DHS”). DHS partially denied his request on December 20, 2010 indicating that some of the information contained within the records was “protected,” pursuant to Utah Code Ann. § 63G-2-202(11)(b) and/or Utah Code Ann. § 62A-3-312. Mr. Fordham appealed this denial to the State Records Committee (“Committee”) and his appeal was scheduled to be heard on May 12, 2011. Pursuant to Utah Code Ann. § 63G-2-403 and Utah Admin. Code R. 35-1-1 et seq., the parties were properly notified of the hearing date and time. After holding a hearing on May 12, 2011, the Committee 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. At the hearing, no one appeared on behalf of Mr. Fordham.
3. The Records Committee is required to hold a hearing and allow the parties to testify, present evidence and comment on the issues. See, Utah Code Ann. § 63G-2-201(7) and (8). If a petitioner wishes to postpone a hearing or withdraw an appeal, the petitioner shall notify the Committee and the governmental entity in writing no later than two days prior to the scheduled hearing date. Utah Admin. Code R. 35-1-2(13)(a).
4. After holding a hearing, the Committee shall issue a signed order either granting the petition in whole or in part or; upholding the determination of the governmental entity in whole or in part. See Utah Code Ann. § 63G-2-403(11)(a).
5. Based upon Mr. Fordham failing to appear at the hearing, failing to give notice or request a continuance of the matter, or giving notice that he would not appear, the Committee finds that Mr. Fordham voluntarily abandoned his appeal to the Committee.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Bruce Fordham is denied and the partial denial of Mr. Fordham’s GRAMA request by the Utah Department of Human Services is upheld.
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 19th day of May, 2011.
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
GORDON THOMAS, Petitioner, vs.
UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.
DECISION AND ORDER
Case No. 12-06
By this appeal, Petitioner, Gordon Thomas, seeks to appeal the denial of his records request for records associated with his criminal history.
FACTS
On or about December 12, 2011, Mr. Thomas made a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to the Utah Department of Public Safety, Bureau of Criminal Identification (“BCI”). BCI denied his request on December 14, 2011 indicating that his request was deficient because Mr. Thomas failed to provide fingerprints and pay the required $15.00 fee and, therefore, failed to comply with Utah Administrative Code R722-900-3.
On or about January 9, 2012, Mr. Thomas appealed BCI’s denial of his request for his criminal history to the Commissioner of PDS, Lance Davenport. Mr. Thomas indicated he was not able to provide fingerprints and the fee because he was incarcerated and, accordingly, lacked the means to comply with the rule. Commissioner Davenport sustained BCI’s previous denial of Mr. Thomas’ records request on January 17, 2012 re-affirming the finding that Mr. Thomas failed to comply with the requirements necessary to obtain his criminal history.
Mr. Thomas now appeals this denial to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on April12, 2012, 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 § 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. Records to which access is restricted pursuant to court rule, another state statute, or federal statute are not public. See Utah Code § 63G-2-201(3)(d).
3. At the hearing, counsel for BCI argued that access to “criminal history” records is controlled by Utah Code § 53-10-108 and Utah Admin. R., R722-900-3, and that Mr. Thomas failed to comply with the requirements found in this statute and accompanying rule. Counsel further argued that pursuant to Utah Code § 63G-2-201 the records are not public because access is controlled by another state statute.
4. Mr. Thomas argued that he should be allowed access to his criminal history without meeting the requirements of Utah Code § 53-10-108 or Utah Admin. R., R722-900-3 because he lacks the means to comply with the statutes due to his incarceration at the Utah State Prison.
5. After hearing the arguments of the parties, and having reviewed their submissions, the Committee is convinced and therefore finds that access to the records requested by petitioner is restricted pursuant to another state statute, specifically Utah Code § 53-10-108 and is therefore not public pursuant to Utah Code § 63G-2-201(3)(d).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Gordon Thomas is hereby denied.
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 § 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 § 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 20th day of April, 2012.
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JEFFREY B. LAWRENCE, Petitioner, vs.
UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.
DECISION AND ORDER
Case No. 12-22
By this appeal, Petitioner, Jeffery B. Lawrence (“Lawrence”), seeks to appeal the denial of his request for records regarding a Department of Public Safety (“DPS”) investigation of his complaint filed against a Utah Highway Patrol trooper on September 17, 2011.
FACTS
On or about May 31, 2012, Mr. Lawrence submitted a Utah Government Records Access and Management Act (“GRAMA”) request to DPS seeking records: (1) related to his arrest on April 20, 2011; (2) records related to his compliant against the Utah Highway Patrol (“UHP”) trooper who arrested him and: (3) all disciplinary records regarding the UHP trooper. On June 22, 2012, DPS responded and indicated that it had located records responsive to his request with regard to his arrest, but denied his request for records regarding his complaint against the UHP trooper indicating that the records were protected pursuant to Utah Code § 63G-2-305(17) and private pursuant to Utah Code § 63G-2-302(2)(d).
On July 5, 2012, Mr. Lawrence appealed the denial to DPS Commissioner, Lance Davenport. Commissioner Davenport responded by letter dated July 11, 2012, indicating that Mr. Lawrence could have access to the records related to his arrest upon payment of the $55.00 fee. In the letter, Commissioner Davenport also affirmed the previous denial for records related to Mr. Lawrence’s complaint against the UHP trooper citing Utah Code § 63G-2-305(17).
Petitioner, Jeffrey Lawrence, now appeals DPS’s denial of his GRAMA request for records related to his complaint against the UHP trooper to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on October 11, 2012, 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 § 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. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding are protected if properly classified. See Utah Code § 63G-2-305(17).
3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private if properly classified by the governmental entity. See Utah Code § 63G-2-302(2)(d).
4. Records concerning a current or former employee of a governmental entity including performance evaluations and personal status information, but not including public records under § 63G-2-301(2)(b) or § 63G-2-301(3)(o) are private if properly classified by the governmental entity. See Utah Code § 63G-2-302(2)(a).
5. Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity are normally public if properly classified and the disciplinary action has been completed and all time periods for administrative appeal have expired and the charges on which the disciplinary action was based were sustained. See Utah Code § 63G-2-301(3)(o).
6. At the hearing, Counsel for Mr. Lawrence argued that the records responsive to his request, were not created in anticipation of litigation, but were created within the ordinary course of business based upon the Utah Supreme Court’s decision in S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, 200 P.3d 643, and therefore, the requested records could not be classified as protected, “work product” pursuant to Utah Code § 63G-2-305(17).
7. Counsel for DPS argued that an Internal Affairs (“IA”) investigation of Mr. Lawrence’s complaint was conducted/completed as part of, or in anticipation of administrative/ disciplinary action against the Trooper. Therefore, the IA investigation and any findings contained the observations, mental impressions and opinions of employees engaged in the process constituted “work product” pursuant to § 63G-2-305(17) and as such, were properly classified as protected records which should not be released.
8. DPS also argued that release of the records requested by Mr. Lawrence would constitute a “clearly unwarranted” invasion of the Trooper’s privacy pursuant to Utah Code § 63G-2-302(2)(d). DPS further argued that no formal charges were filed and that no disciplinary action had been taken or had been sustained against the Trooper. Therefore, records relating to Mr. Lawrence’s IA complaint against the Trooper were properly classified as protected and should not be released pursuant to Utah Code § 63G-2-302(2)(a).
9. Mr. Lawrence countered asserting that no specific exemption had been granted to IA records/reports and as such pursuant to Utah Code § 63G-2-201, he was entitled to receive the records. Further, since the Trooper was a public employee with certain authority granted to detain/deprive an individual of personal liberty, there was a public interest in knowing how the IA investigation of Mr. Lawrence’s complaint was handled.
10. After hearing the arguments of the parties, and having reviewed their submissions, the Committee is persuaded the records related to Mr. Lawrence’s IA complaint against UHP trooper are records concerning a current or former employee of a governmental entity including performance evaluations and personal status information and are not public under 63G-2-301(3)(o) as the charges were not sustained. The Committee therefore finds the records are properly classified as private as set forth in Utah Code § 63G-2-302(2)(a) and should not be released.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jeffery Lawrence is DENIED pursuant to Utah Code § 63G-2-302(2)(a).
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 § 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 § 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 22nd day of October 2012.
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RAY WHEELER, Petitioner, vs.
SALT LAKE CITY, Respondent.
DECISION AND ORDER
Case No. 11-09
By this appeal, Petitioner, Ray Wheeler appeals a denial from Respondent, Salt Lake City Corporation (“SLC”), of his request for a fee waiver for records regarding the proposed regional sports complex (“Complex”) to be located adjacent to the Jordan River.
FACTS
On or about February 15, 2011, Mr. Wheeler submitted a Government Records Access and Management Act (“GRAMA”) request to SLC for the following records:
(1) Minutes of any meetings in which there were opportunities for public comment on the Complex site, scope, plan and/or budget prior to or during the 2003 bond election;
(2) Documents or records “of any such public comment on the Sports Complex sit[e], scope, site plan and /or budget prior to or during the 2003 bond election;”
(3) Any correspondence with “Real Salt Lake or its representatives, including consultants or lawyers regarding possible funding for, or use of, the Sports Complex facility by Real Salt Lake, including, but not limited to, the Sports Complex gift agreement;”
(4) Any correspondence with “Real Salt Lake or its representatives, including consultants or lawyers regarding the size, scope;”
(5) Any “city studies or other documents providing information about the potential for flooding on the 2200 North, Jordan River Sports Complex site;”
(6) Any “city studies of potential flood risks or cost on the 2200 North, Jordan River Sports Complex site;”
(7) Any “business plans, pro formas or other studies of the costs and /or benefits, including economic benefits, of the proposed Regional Sports Complex;” and
(8) Any documents or studies by the city or city consultants “of the public demand and need for additional soccer, baseball, softball, rugby, lacrosse or cricket play fields in Salt Lake City.”
On February 16th and 18th, Mr. Wheeler submitted additional GRAMA requests relating to his initial request.
Mr. Wheeler also submitted a request for a fee waiver for all costs associated with the requested records arguing that the records primarily benefit the public. In response, SLC denied his request for a fee waiver and declined to produce the requested documents without a monetary deposit stating “[t]he City … has a policy not to waive fees for GRAMA requests because of the burden on the City of responding to voluminous requests.”
Mr. Wheeler narrowed the scope of his request in a “Consolidated and Refined GRAMA Request” dated March 14, 2011. He again requested a waiver of the fees associated with his GRAMA request. However, SLC again denied the request for a fee waiver.
Mr. Wheeler now appeals to the State Records Committee (“Committee”) claiming that the denial of his request for a fee waiver was unreasonable. The Committee, having reviewed written arguments of the parties and having heard oral argument and testimony at the hearing held on June 9, 2011, now 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 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. Every 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 business hours, subject to Utah Code Ann. §§ 63G-2-203 and 63G-2-204..
3. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code Ann. § 63G-2-203(1). A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code Ann. § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code Ann. § 63G-2-203(6)(a).
4. At the hearing, Mr. Wheeler argued that he was acting in the capacity as a journalist to inform the public. He claimed that it was in the public interest to have these records made public because of the public issues involved with the Complex.
5. Counsel for SLC argued that for the benefit of the taxpayers of SLC, it was policy of SLC to deny all requests for fee waivers regardless of their merits or the status of the requestor.
6. A review of GRAMA shows that the Utah Legislature specifically allowed a “person who believes that there has been an unreasonable denial of a fee waiver” to appeal the denial to the Committee or a District Court. Utah Code Ann. § 63G-2-203(6)(a). The adjudicative body hearing the appeal is given “the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied.” Utah Code Ann. § 63G-2-203(6)(b). Utah Code Ann. § 63G-2-203(4) lists circumstances where a governmental entity is “encouraged” to fulfill a record request without charge. Accordingly, it is readily apparent from these statutes that the Utah Legislature intended to have some records requests fulfilled without a fee and then also allow a requestor to have a denial of the fee waiver reviewed by another governmental entity to determine if that decision was “unreasonable.”
7. However, a blanket policy by a governmental entity denying all fee waiver requests disallows any consideration of the circumstances listed in Utah Code Ann. § 63G-2-203(4). This leaves a requestor with no real issue to appeal other than to challenge the unreasonable nature of the governmental entities’ policy denying all fee waivers.
8. Accordingly, after considering all evidence submitted, the Committee finds that the policy of Salt Lake City Corporation to deny all requests for GRAMA request fee waivers is contrary to statute and against public policy. Therefore, the decision to deny Mr. Walker’s request for a fee waiver based upon this policy was “an unreasonable denial” and should be reversed.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ray Wheeler for a fee waiver is granted.
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 20th day of June, 2011.
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KEN CROMAR, Petitioner, vs.
CITY OF CEDAR HILLS, Respondent.
DECISION AND ORDER
Case No. 12-11
By this appeal, Petitioner, Ken Cromar, on behalf of Cedar Hills Citizens for Responsible Government, appeals the denial of his records request for access to e-mails to and/or from certain members of the City of Cedar Hills governing body.
FACTS
On March 5, 2012, Mr. Cromar made records requests pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to the City of Cedar Hills, (“Cedar Hills”). Mr. Cromar wanted to view “[a]ll e-mails from Konrad Hilderbrandt and Eric Richardson to each other, and/or to any Council member, using whatever e-mail address, from January 1, 2011 to present.” Cedar Hills provided some records responsive to Mr. Cromar’s request for certain e-mails. However, Cedar Hills informed Mr. Cromar that although additional records/e-mails may be responsive to his request, Cedar Hills would require a pre-payment of the estimated cost of search, retrieval and compilation of the records pursuant to Utah Code § 63G-2-203(8). Mr. Cromar disagreed with this decision, claiming that he was entitled to view the records free of charge pursuant to Utah Code § 63G-2-201(1).
Mr. Cromar filed an appeal with the State Records Committee (“Committee”). The sole issue before the Committee relates to the remaining e-mails not yet provided by Cedar Hills from Konrad Hildebrandt and Eric Richardson to each other and/or the City Council. The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on June 15, 2012, 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 § 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. Every person has the right to inspect a public record free of charge, and the right to take a copy of the public record during normal working hours, subject to Sections 63G-2-203 and 63G-2-204. Utah Code § 63G-2-201(1).
3. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). The governmental entity may require payment of past and future estimated fees before beginning to process the request the fees are expected to exceed $50.00. See, Utah Code § 63G-2-203(8).
4. A governmental entity may not charge a fee for inspecting a record or reviewing a record to determine whether it is subject to disclosure. See, Utah Code § 63G-2-203(5).
5. At the hearing, counsel for Cedar Hills argued that they have determined that records/e-mails responsive to Mr. Cromar exist and in fact, they have gathered “over two thousand” documents and determined the cost alone of copying the documents would exceed $500.00. Cedar Hills indicated that it would provide the records upon payment of their fees pursuant to Utah Code § 63G-2-203(8). Counsel also argued that the record series retention for the e-mails requested is one year and that e-mails requested prior to March 5, 2011 could not be provided to Mr. Cromar.
6. Mr. Cromar argued that he should not be charged for the cost of searching and compiling the records he seeks because pursuant to Utah Code § 63G-2-203, his request primarily benefits the public. Mr. Cromar also claimed that pursuant to Utah Code § 63G-2-203(2), the records should be normally maintained by the governmental agency and as such he should not be charged for the cost of searching and compiling the records.
7. After hearing the arguments of the parties, and having reviewed their submissions, the Committee makes the following findings: (1) Because the requested e-mails are not normally maintained in the format being requested, Cedar Hills may charge for search and compilation to locate and make the documents available to Mr. Cromar; (2) Since the estimated cost of fulfilling Mr. Cromar‘s remaining request would exceed $50.00, Cedar Hills may require prepayment of its estimated fees pursuant to Utah Code § 63G-2-203(8); (3) After paying said fees, Mr. Cromar is entitled to receive public records from Cedar Hills of all correspondence between Konrad Hildebrandt and Eric Richardson and/or to any member of the City Council, using whatever e-mail address, since March 5, 2011; and (4) that after providing a reasonable estimate and collection of a pre-payment of estimated fees, Mr. Cromar should be allowed to view the records relevant to his request or receive paper copies of the records at Mr. Cromar’s discretion.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ken Cromar is upheld as outlined in paragraph 7 above.
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 § 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 § 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 26th day of June, 2012.
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SANDRA J. SENN, Petitioner, vs.
UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.
ORDER OF CONTINUANCE
Case No. 13-01
The above matter having come before the State Records Committee (“Committee”) for oral argument and testimony on January 10, 2013, the parties appearing and the Committee having received the pleadings, evidence and documents from the Respondent, the Utah Department of Public Safety for an in camera review, and such being too numerous to review in its entirety during the hearing on this matter, IT IS HEREBY;
ORDERED: that the hearing of this matter is hereby continued until February 14, 2013 at 9:30 A.M., and
ORDERED: that Respondent provide the documents to the Executive Secretary for the Committee to allow the documents to be securely held at the State Archives Building for further in camera review by individual Committee members.
ORDERED: that Respondent prepare a log for the documents detailing Respondent’s classification of each document in order to better allow the Committee to understand Respondent’s position regarding each document.
This Order was made without objection and with the consent of the parties.
Entered this 18th day of January, 2013
BY THE STATE RECORDS COMMITTEE
____________________________________
LEX HEMPHILL, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DAMON CRIST, Petitioner, vs.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 13-17
By this appeal, Petitioner, Damon Crist, seeks access to records from Respondent, the Utah Department of Corrections (“Corrections”).
FACTS
On September 23, 2013, Mr. Crist filed a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) with Corrections for all disciplinary records of a doctor employed by Corrections working in the Medical Unit of the Draper Prison. Corrections rejected the request stating that Corrections did not maintain the requested records. In a letter dated October 3, 2013, Mr. Crist filed an appeal with Corrections. Responding to the appeal, the Deputy Director for Corrections stated in a letter dated October 29, 2013, that the requested records had been found, but they would not be released to Mr. Crist because they had been classified as protected records pursuant to Utah Code § 63G-2-305(11) & (13).
Mr. Crist now appeals the denial of his request for records to the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard 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 § 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. Records disclosing information relating to formal charges or disciplinary actions against a past or present governmental entity employee are normally public if: (1) the disciplinary action has been completed and all time periods for administrative appeal have expired; (2) the charges on which the disciplinary action was based were sustained; and (3) access is not expressly exempt from disclosure under Utah Code §§ 63G-2-201(3)(b), -302, -304, or -305. Utah Code § 63G-2-301(3)(o).
3. Records that if disclosed would jeopardize the security or safety of a correctional facility, or records relating to 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 a governmental entity. Utah Code § 63G-2-305(13). Similarly, records the disclosure of which would jeopardize the life or safety of an individual, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(11).
4. Corrections argued that records of a medical doctor treating prison inmates should be protected records because the release of those records would jeopardize the life and safety of Corrections employees and other individuals. Testimony was provided by a nursing director with Corrections who testified concerning procedures used to treat prison inmates including restrictions on releasing information to inmates. Testimony was also provided by the Deputy Warden for the Draper Prison, who stated that potential harm could occur against the doctor for whom the records were being requested if the records were released.
5. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, the Committee finds that the disciplinary records for the prison doctor were properly classified as a protected record pursuant to Utah Code § 63G-2-305(11) and (13).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Damon Crist is DENIED.
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 § 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 § 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 23rd day of December 2013,
BY THE STATE RECORDS COMMITTEE
____________________________________
LEX HEMPHILL, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JUDY FAHYS, SALT LAKE TRIBUNE, Petitioner, vs.
UTAH DEPARTMENT OF COMMUNITY AND CULTURE, Respondent.
DECISION AND ORDER
Case No. 12-05
By this appeal, Petitioner, Judy Fahys, Environment Reporter for the Salt Lake Tribune, appeals a denial from Respondent, Department of Community and Culture (“DCC”), of her request for records pertaining to staff changes and/or restructuring in the archaeology section of DCC.
FACTS
In a letter dated June 27, 2011, Ms. Fahys submitted a records request to DCC pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Fahys asked for copies of communications between DCC and “other executive branch offices, offices of the Utah State Legislature, the Utah Transit Authority and the Kane County Water Conservancy District” regarding the “positions of the State Archaeologist, the assistant to the state archaeologist and the physical anthropologist.” Ms. Fahys amended her request in a letter dated July 7, 2011 narrowing the period of time from “July 1, 2005 thru today.”
After her request was denied by DCC because “the request [was] not ‘reasonably specific’ according to 63G-2-204(1)(b),” Ms. Fahys filed an appeal with the Utah State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 8, 2011, issued a Decision and Order dated September 16, 2011, granting Ms. Fahys’ appeal and finding that her “request was reasonably specific enough for DCC to understand what records were being requested in order to fulfill the request.” Fahys v. Utah Dept. of Community and Culture, State Records Committee Order No. 11-14 (2011), pg. 3.
Thereafter, DCC prepared a draft list of search terms designed to identify records responsive to the records request. Based upon the search terms, DCC generated approximately 5,400 documents but agreed to provide only those responsive to the request. A prehearing was held, facilitated by the Committee chair, during which DCC agreed to provide all 5400 records with the exception of those designated as private, protected, or controlled, and agreed to provide a log. Ms. Fahys filed an appeal with the Committee of DCC’s classification of 69 documents DCC classified as non-public records. The parties presented arguments and testimony at a hearing before the Committee on January 12, 2012. During the hearing, the Committee found that since the documents were too numerous to review in their entirety during the hearing, the matter was continued until the next scheduled Committee hearing. Fahys v. Utah Dept. of Community and Culture, State Records Committee Order No. 12-01 (2012). After an in camera review and further deliberations at its February 15, 2012 hearing, the Committee now 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. DCC presented the withheld records in four classifications: attorney client communication, referencing 63G-2-305(16)(17)& (18); drafts, referencing 63G-2-103(22)(b)(ii) and 63G-2-305(22); internal audit, referencing 63G-2-305(15); and personnel performance evaluations, referencing 63G-2-302(2)(a).
Attorney Client Communications
3. If properly classified by a governmental entity, records prepared by or on behalf of a governmental entity solely in anticipation of litigation that are not available under the rules of discovery are protected. Utah Code § 63G-2-305(16).
4. If properly classified by a governmental entity, records disclosing an attorney’s work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation are protected. Utah Code § 63G-2-305(17).
5. If properly classified by a governmental entity, records of communications between a governmental entity and an attorney representing, retained, or employed by the governmental entity are protected if the communications would be privileged as provided under Utah Code § 78B-1-137. Utah Code § 63G-2-305(18).
6. In Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, 200 P.3 643, the Utah Supreme discussed the classifications delineated under Utah Code 63G-2-305(16),(17) & (18). The Court specifically held that in order to rely upon the attorney-client privilege, pursuant to Utah Code § 63G-2-305(18), a party must establish: (1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice. Southern Utah Wilderness Alliance, ¶ 33. “[T]he mere existence of an attorney-client relationship does not ipso facto make all communications between them confidential.” Southern Utah Wilderness Alliance, ¶ 33, quoting Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911.
7. The Court also emphasized, with reference in particular to subsection (17) that it is the party relying on the privilege that has the burden of establishing that it is applicable. ¶29.
8. The Committee finds that Document #’s 4, 32, 33, 37, 38, and 40 were properly classified by DCC as protected records pursuant to Utah Code § 63G-2-305(16), (17), or (18).
9. The Committee finds that Document #’s 3, 7, 15, 19, and 20 were not properly classified by DCC as protected records. Even though they were communications with a governmental entity’s legal counsel, they were not prepared in anticipation of litigation, reflected no mental impressions nor legal theories, nor could be considered privileged communication in that the documents did not show the transfer of confidential information. Accordingly, the Committee finds that these documents should be disclosed as public records.
10. The Committee also finds that Document #’s 16 and 71 were not properly classified by DCC as protected. DCC did not carry its burden of proof that these documents involved any communication between DCC and legal counsel. Accordingly, the Committee finds that these documents should be disclosed as public records.
Drafts
11. Pursuant to Utah Code § 63G-2-103(22)(b)(ii), a temporary draft or similar material prepared for the originator’s personal use or prepared by the originator for the personal use of an individual for whom the originator is working is not a record.
12. If properly classified by a governmental entity, “drafts” are considered a protected record unless otherwise classified as a public record in GRAMA. Utah Code § 63G-2-305(22).
13. Drafts that have never been finalized but were relied upon by the governmental entity in carrying out action or policy are normally public, to the extent that the record is not expressly exempted from disclosure or access restricted under another section of GRAMA. Utah Code § 63G-2-301(3)(k).
14. The Committee finds that Document #’s 8, 10, 14, 21, 22, 28, 34, 35, 41, 42, 48, 58, 59, 60, 61, 62, 63, 64, 66, 68, 69 and 70 were properly classified either as non-records or as protected drafts by DCC.
15. The Committee further finds that Document #’s 5, 6, 9, 11, 12, 13, 17, 18, 23, 24, 25, 26, 27, 29, 30, 31, 39, 49, 65, and 67 were improperly classified either as non-records or as protected drafts by DCC and should be disclosed as public records. The Committee was unable to determine, based upon a lack of evidence, whether these drafts had been finalized or were relied upon by DCC in carrying out an action or policy. These documents should, therefore, be disclosed as public records.
Internal Audit
16. If properly classified by a governmental entity, records of a governmental audit agency relating to an ongoing or planned audit until the final audit is released are protected. Utah Code Ann. § 63G-2-305(15).
17. The Committee finds that Document # 36 is a public record as DCC testified that the audit was not ongoing.
Personnel Evaluations
18. If properly classified by a governmental entity, records concerning a current or former employee of a governmental entity, including performance evaluations, are private. Utah Code Ann. § 63G-2-302(2)(a).
19. The Committee finds that Document #’s 43, 44, 45, 46, 47, 50, 51, 52, 53, 54, 55, 56, & 57 are properly classified as private in that they are performance evaluations of an employee of a governmental entity.
ORDER
THEREFORE, IT IS ORDERED THAT: the appeal of Judy Fahys, Environment Reporter for the Salt Lake Tribune, is GRANTED in part and DENIED in part.
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 23rd day of February 2012
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CHRISTIAN PROBASCO, MANAGING EDITOR, SANPETE MESSENGER, Petitioner, vs.
UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.
DECISION AND ORDER
Case No. 12-18
By this appeal, Petitioner, Christian Probasco, Managing Editor for the Sanpete Messenger, seeks to appeal the denial of his request for records regarding the name of a minor involved in an auto-pedestrian accident occurring on June 5, 2012, near Fountain Green, Utah.
FACTS
On June 5, 2012, the Utah Highway Patrol responded to an auto-pedestrian accident which occurred near Fountain Green, Utah. The Department of Public Safety (“DPS”) subsequently held a press conference where a description of the accident was given but the name of the pedestrian was withheld. Mr. Probasco made a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to DPS on June 7, 2012 seeking all records and reports related to the accident. DPS denied Mr. Probasco’s request on June 11, 2012 indicating that accident reports were protected records pursuant to Former Utah Code § 63G-2-305(38). Mr. Probasco appealed this denial to Lance Davenport, DPS Commissioner, on June 13, 2012. In his appeal Mr. Probasco clarified that he was seeking the name of the pedestrian involved in the accident.
On June 27, 2012, Commissioner Davenport affirmed the previous denial and also indicated that release of the name of the minor’s name would be a “clearly unwarranted invasion” of his/her privacy pursuant to Utah Code §63G-2-302(2)(d). Petitioner now appeals DPS’s denial of the GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on September13, 2012, 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 § 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. Subject to limiting provisions found in Utah Code § 41-6a-404, DPS or the responsible law enforcement agency employing the investigating peace officer, shall disclose an accident report to a member of the press or broadcast media. Utah Code § 41-6a-404(3)(a)(iv). Such release shall only include the name, age, sex and city of residence of each person involved in the accident, the make, model and year of each vehicle, the location and whether the individuals in the accident were covered by insurance. Utah Code § 41-6a-404(3)(d) (See also, Utah Code § 63G-2-305(37), “accident reports” are protected except as provided in Utah Code §§ 41-6a-404, 41-12a-202 and 78-18-13).
3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private if properly classified by the governmental entity. Utah Code § 63G-2-302(2)(d).
4. At the hearing, Counsel for DPS argued that while it had no specific policy regarding the release of names of minors, the release of the name of the pedestrian in this accident would constitute a “clearly unwarranted invasion” of the minor’s privacy because minors have heightened privacy protections and he/she was only injured. DPS further contended that the name could not be released because DPS did not have confirmation that the accident investigation had been concluded and that it was possible the pedestrian/minor was at fault and could be charged with a crime.
5. Mr. Probasco argued that he should be allowed access to the name of the minor in this accident because Utah Code § 41-6a-404(3) requires the release of the names of individuals involved in auto accidents and does not contain an exemption for the names of minors. Mr. Probasco also argued that he was entitled to receive the record/name of the minor involved in the accident pursuant to GRAMA § 63G-2-305(37) because it also does not contain an exemption to prevent the release of a minor’s name. Finally, Mr. Probasco argued that it had been a common past practice for law enforcement to provide the names of minors involved in auto accidents to the media and that DPS’s denial of access to this record was unusual and substantially deviated from past practices.
6. After hearing the arguments of the parties, and having reviewed their submissions, the Committee finds that DPS is required to release the names of individuals involved in auto accidents to the media pursuant to Utah Code §§ 63G-2-305(37) and 41-6a-404(3)(d). The Committee holds that insufficient evidence was presented to demonstrate that the release of the name of the minor involved in this case would constitute a “clearly unwarranted invasion of personal privacy” pursuant to Utah Code § 63G-2-302(2)(d), and that no credible evidence was presented that any investigations or criminal charges were pending against the minor in this case.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Christian Probasco, Managing Editor for the Sanpete Messenger, is upheld and that the Utah Department of Public Safety shall release all records responsive to Petitioner’s request after having first redacted any information required by Utah Code §41-6a-404.
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 § 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 § 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 24th day of September, 2012.
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BILL ORAM, REPORTER FOR SALT LAKE TRIBUNE, Petitioner, vs.
GRANITE SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 12-21
By this appeal, Petitioner, Bill Oram, Reporter for the Salt Lake Tribune (“Tribune”), seeks to appeal the denial of his request for records regarding Granite School District’s investigation of an alleged inappropriate relationship between a teacher/coach and a female student.
FACTS
On or about May 29, 2012, Mr. Oram on behalf of the Tribune submitted a Utah Government Records Access and Management Act (“GRAMA”) request to Granite School District (“Granite”) seeking:
…witness testimony from the ongoing Granite School District investigation the [sic] offers evidence of an “inappropriate relationship” between Cottonwood High School teacher Joshua Lyman and a female student. This includes text message and emails and/or testimony from people about texts or emails between Lyman and the student.
Granite initially denied the records request citing Utah Code § 63G-2-305(9) indicating that the investigation was ongoing and release of the records would interfere with the investigation. After Granite concluded its investigation, the Tribune renewed its request which through discussions with Granite had been narrowed to two categories: (1) written statements collected during the investigation and; (2) cell phone records provided by the student/victim.
Granite considered the renewed request and again denied access to the records indicating that disclosure was precluded by the Family Education Rights Privacy Act (“FERPA”) 20 U.S.C. §1232g and 34 CFR §99. Granite also denied access based on Utah Code § 63G-2-302(2)(d) indicating that disclosure of the records would be a clearly unwarranted invasion of the students/witnesses privacy.
Petitioner, Bill Oram, Reporter for the Salt Lake Tribune, now appeals Granite’s denial of his GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on October 11, 2012, 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 § 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. The Family Education Rights Privacy Act prohibits the disclosure of education records defined as any records which identify a student, concern a student, and/or are maintained by a school without the consent of the individual, a parent or guardian. See, 20 U.S.C. §1232g and 34 CFR §99. “Educational records” is defined by FERPA as records containing information directly related to a student and maintained by an educational agency or institution or by a person acting for such agency or institution. 20 U.S.C. §1232g (a)(4)(A). “Educational records” does not include “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.” 20 U.S.C. §1232g (a)(4)(B)(ii).
3. Records the disclosure of which would jeopardize the life or safety of an individual are protected if properly classified. See Utah Code § 63G-2-305(10).
4. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes are protected if the records are properly classified and; disclosure could reasonably be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. See Utah Code § 63G-2-305(9)(d).
5. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private if properly classified by the governmental entity. See Utah Code § 63G-2-302(2)(d).
6. At the hearing, Counsel for Granite argued that the students/witnesses who participated in the investigation regarding the alleged misconduct of the teacher/coach at Cottonwood High School had already been subjected to severe ridicule and abuse as a direct result of public discovery of their participation. Granite further argued that to disclose the records sought by the Tribune would only serve to subject the students to further harassment and ill treatment by the community and thus the records were properly classified as protected pursuant to Utah Code § 63G-2-305(9)(d) & (10) and private pursuant to Utah Code § 63G-2-302(2)(d). Counsel also indicated that even if the names were redacted prior to disclosure, the identity of the students would still be discernible due to the content of the records and that Granite has a strict duty to protect its students and no evidence had been proffered that any public interest in disclosure of the records outweighed such a duty. Finally, Granite claimed that GRAMA was subservient to the federal law which governed access to the records sought by the Tribune, specifically FERPA. Granite asserted that the records sought by the Tribune fell within the definition of “educational records” and that disclosure was prohibited by FERPA and that if Granite did disclose the records the consequence of such disclosure could be a loss of federal funding to the district.
7. Mr. Oram argued that the records the Tribune sought did not fall within the definition of an “educational record” pursuant to FERPA and thus FERPA did not apply to this case, especially if any identification data was redacted. Mr. Oram further argued that the privacy of the witnesses/students could be maintained by redaction of the records omitting any data on individuals, which if disclosed could constitute a clearly unwarranted invasion of their personal privacy.
8. After hearing the arguments of the parties, and having reviewed their submissions, and having reviewed the disputed records in camera, the Committee is not persuaded the records sought by the Tribune fall within the statutory definition of an “education record” pursuant to FERPA and therefore finds GRAMA to be controlling law in this matter. Further, the Committee after having reviewed the records is convinced that the identity of the student/witness(s) contained in the document(s) identified as No. 1 by the Committee could be discerned based upon the content of the record, even if the identifying data were to be redacted from the record. The Committee based upon the arguments and its review finds such a disclosure would be a clearly unwarranted invasion of the privacy of this student and therefore this record should not be disclosed. However, the Committee is also convinced that for the remaining documents, (1) the identities of the student/witness(s) can be protected through redaction of the documents in the remaining cell phone log and witness statements and; (2) the cell phone log and witness statements are public pursuant to Utah Code § 63G-2-202 and should be released after first redacting any identifying data from the records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Bill Oram, Reporter for the Salt Lake Tribune, is UPHELD as to the phone log and witness statements with exclusion of the record identified as No. 1 by the Committee. Granite School District shall redact any identifying data from the phone log and witness statements and release them to the Tribune.
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 § 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 § 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 22nd day of October 2012.
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COREY VONBERG, Petitioner, vs.
IRON COUNTY SHERIFF’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 13-11
By this appeal, Petitioner, Corey Vonberg, seeks access to records allegedly held by Respondent, the Iron County Sheriff’s Office (“Sheriff’s Office”).
FACTS
In a letter dated March 14, 2013, Mr. Vonberg made a request with the Sheriff’s Office for the “Policy and Procedure your office is required to follow in investigating an alleged child sex offense requiring a Children’s Justice Center interview, pertaining to November 2003.” In response, the Sheriff’s Office stated that it did not possess records responsive to his request. In a letter dated June 9, 2013, Mr. Vonberg filed an appeal with the Iron County Commission arguing that he should receive the requested records.
In a letter dated August 15, 2013, the Sheriff’s Office stated that in regards to the policy and procedures for Children’s Justice Center interviews, “these interviews are not Iron County Sheriff’s Office interviews. Therefore, we do not release any information we receive from other agencies.” The letter further stated that if Mr. Vonberg wanted any information on any interview conducted by the Children’s Justice Center, he should contract them directly.
Mr. Vonberg now appeals the Department’s denial of his records request to the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on October 10, 2013, now 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. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
3. During the hearing, counsel for the Sheriff’s Office stated that a procedure exists regarding Children’s Justice Center interviews. However, counsel also stated that the office does not have a record responsive to Mr. Vonberg’s request.
4. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, the Committee finds that the Iron County Sheriff’s Office does not possess a record responsive to Mr. Vonberg’s records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Corey Vonberg is DENIED.
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 § 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 § 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 22nd day of October 2013,
BY THE STATE RECORDS COMMITTEE
____________________________________
LEX HEMPHILL, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JACK JESSOP, Petitioner, vs.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 14-08
By this appeal, Petitioner, Jack Jessop, seeks access to records from Respondent, the Utah Department of Corrections (“Corrections”).
FACTS
On February 19, 2014, Mr. Jessop filed a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) with Corrections. The request stated that all medications issued by Corrections for prisoners “come with information sheets that identify side effects and other aspects of the drugs” and that he had a “right to this information.” Mr. Jessop requested copies of all information sheets from the prescription drug manufacturers that accompanied the prescriptions he was receiving while incarcerated by Corrections from 2000 to the present.
Corrections initially denied access to the records because the information was “not found in your medical record” and suggested that Mr. Jessop “speak to your provider regarding questions about your medications.” After Mr. Jessop filed an appeal to this decision, Mike Haddon, Deputy Director for Corrections, denied the appeal stating that for “safety and security reasons this information has been classified as protected” pursuant to Utah Code § 63G-2-305(11) & (13). Mr. Jessop now appeals the denial of his request for records to the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on May 8, 2014, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In enacting GRAMA, the Utah Legislature recognized two constitutional rights: (1) the public’s right of access to information concerning the conduct of the public’s business; and (2) the right of privacy in relation to personal data gathered by governmental entities. Utah Code § 63G-2-102(1). The Legislature intended to have through GRAMA, a procedure that promotes the public’s right to easy and reasonable access to unrestricted public records. Utah Code § 63G-2-102(3)(a).
2. GRAMA defines a “public record” as a record that is not private, controlled, or protected and that is not exempt from disclosure as provided in Utah Code § 63G-2-201(3). See, Utah Code § 63G-2-103(21). A “record” is defined in Utah Code § 63G-2-103(22)(a), and what is not considered a “record” is defined in Utah Code § 63G-2-103(22)(b).
3. Utah Code § 63G-2-103(22)(b)(iv) & (vi) states that a “record” does not mean: (1) material to which access is limited by the laws of copyright or patent unless the copyright or patent is owned by a governmental entity or political subdivision; or (2) a commercial publication received by a governmental entity or an official or employee of a governmental entity.
4. After having reviewed examples of the information sheets accompanying Mr. Jessop’s prescription drugs, the Committee finds that the requested documents are not “records” subject to GRAMA pursuant to the non-record definition found in Utah Code § 63G-2-103(22)(b)(iv) & (vi). The information sheets were generated by the drug manufacturers, are governed by copyright laws, and are commercial publications from the drug manufacturers. Even though the requested documents are not considered “records” under GRAMA and not discoverable through a written GRAMA records request, the Committee strongly encourages Corrections to share the information sheets with Mr. Jessop in a manner that still allows Correction to maintain the “safety and security” of the prison where Mr. Jessop is incarcerated.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jack Jessop is DENIED.
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 § 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 § 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 19th day of May 2014,
BY THE STATE RECORDS COMMITTEE
____________________________________
LEX HEMPHILL, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JULIE HOLBROOK, Petitioner, v.
SOUTH JORDAN CITY COUNCIL, Respondent.
DECISION AND ORDER
Case No. 14-16
By this appeal, Petitioner, Julie Holbrook, seeks access to a record held by Respondent, the South Jordan City Council.
FACTS
On July 1, 2014, the South Jordan City Council (“Council”) held a public city council meeting. The meeting notes indicate that South Jordan City’s (“City”) Finance Director stated during the meeting that the City had engaged external auditors to review the cash basis statement for “Mulligans Golf and Games,” a golf course and recreational activities center owned by the City. The Finance Director stated that he had forwarded a copy of the auditor’s draft report to the Council, and the City had not yet signed an engagement letter with the Council. One of the auditors stated to the Council that some “field work” had been done to prepare the draft report, but it was still incomplete.
The Council ultimately decided to pay for the draft audit report that had been completed, but not retain the auditors for further work on their audit.
On July 3, 2014, Ms. Holbrook made a records request to the Council pursuant to the Government Records Access and Management Act (“GRAMA”). In her request, she sought to receive a copy of the engagement letter and the draft audit report discussed at the July 1, 2014 Council meeting. In response to her request, the Deputy City Recorder stated in a letter dated July 8, 2014, that the “engagement letter and the draft report are drafts and therefore not records” under GRAMA.
On July 28, 2014, Ms. Holbrook filed an appeal with the City regarding the Deputy City Recorder’s decision denying her request for a copy of the engagement letter and the draft audit report. In a letter dated August 4, 2014, the City Manager upheld the prior decision finding that under GRAMA, the documents were not considered governmental records pursuant to Utah Code § 63G-2-103(22)(b)(ii), and that even if they were considered governmental records, they were protected records pursuant to Utah Code § 63G-2-305(22) because they were drafts.
Ms. Holbrook filed an appeal with the State Records Committee (“Committee”) pursuant to Utah Code § 63G-2-403(1) arguing that the draft audit report should be released to her. The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on October 9, 2014, and having reviewed the subject document in camera, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Prior to hearing arguments from the parties concerning the Council’s classification of the subject records, the Committee heard arguments regarding the Council’s motion to dismiss Ms. Holbrook’s appeal based upon her failure to comply with the requirements of Utah Code § 63G-2-403(3)(a) to “on the day on which the petitioner files an appeal to the records committee, serve a copy of the appeal on the government entity.”
2. Counsel for the Council argued that this requirement was jurisdictional, and Ms. Holbrook’s failure to serve a copy of the appeal on the City “on the day” which she filed an appeal with the Committee, required the Committee to dismiss Ms. Holbrook’s appeal. Counsel stated that although Ms. Holbrook did not serve a copy “on the day” she filed her appeal, she subsequently served the Council with a copy of her appeal, and there was no prejudicial effect from her untimely service.
3. While this Committee has held previously that GRAMA requires a petitioner, including an aggrieved person, is required to file their appeal with the executive secretary of the Committee “no later than” thirty days after the day on which the chief administrative officer of the governmental entity grants or denies the record request pursuant to Utah Code § 63G-2-403(1), the Committee has not previously found that failure to serve a copy of the appeal on the governmental entity “on the day which the petitioner files an appeal to the records committee” automatically divests the Committee of jurisdiction to consider the Petitioner’s appeal. Accordingly, the Committee finds that Utah Code § 63G-2-403(3) is not a jurisdictional reason or issue in the present case requiring the Committee to dismiss Ms. Holbrook’s appeal, and the Council’s motion to dismiss the appeal is overruled.
4. 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.
5. Drafts are protected records if properly classified by a governmental entity “unless otherwise classified as public.” Utah Code § 63G-2-305(22). Drafts that are circulated to anyone other than a governmental entity or a political subdivision, are normally public. Utah Code § 63G-2-301(3)(j). Similarly, drafts that have never been finalized but were relied upon by the governmental entity in carrying out action or policy, are also normally public. Utah Code § 63G-2-301(3)(k).
6. The Council argued that the draft audit report was never circulated to anyone other than a governmental entity, was never finalized, or relied upon by the City in carrying out any action or policy. The Council contended that the “City Council members did not vote on the draft audit report, rather they discussed costs of completing the draft audit report, discussed the engagement letter, discussed if completing the report would create additional confusion, and then decided to pay for any work the consultant had already done and not proceed with retaining the auditor from further work.”
7. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, and reviewing the draft auditor report in camera, the Committee finds that the subject record is a draft as defined by Utah Code § 63G-2-305(22), and is not subject to disclosure pursuant to Utah Code § 63G-2-301(j) or (k). The Committee finds the Council’s argument persuasive that the draft audit report was not circulated outside of the governmental entity, was never finalized, and was never relied upon by the Council in carrying out action or policy. Accordingly, the Council properly classified the draft audit report as a non-public protected record.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Julie Holbrook, is DENIED.
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 § 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 § 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 15th day of October 2014.
BY THE STATE RECORDS COMMITTEE
_____________________________
LEX HEMPHILL, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JANELLE STECKLEIN, REPORTER FOR SALT LAKE TRIBUNE, Petitioner, vs.
UTAH TRANSIT AUTHORITY, Respondent.
DECISION AND ORDER
Case No. 12-24
By this appeal, Petitioner, Janelle Stecklein, Reporter for the Salt Lake Tribune (“Tribune”), seeks to appeal the denial of her request for records regarding 2011 verified crime statistics.
FACTS
On or about May 17, 2012, Janelle Stecklein on behalf of the Tribune, submitted a Utah Government Records Access and Management Act (“GRAMA”) request to the Utah Transit Authority (“UTA”) seeking all “verified crime handled by [UTA] in 2011, including incident date, offense description, time of offense and geographic coordinates.” Ms. Stecklein requested the information in electronic form and stated that as a journalist working to benefit the public, “I request you please waive all fees pursuant to GRAMA.” In a letter dated May 23, 2012, Michelle V. Larsen, records officer for UTA, responded to the records request attaching a six page “Citation and Crime Statistics Detail Report.” Ms. Larsen also stated that UTA would not be providing the information in an electronic format because GRAMA did not require UTA to “provide a record in any other form than what it normally keeps.”
In a letter dated June 14, 2012, Ms. Stecklein filed an appeal with Michael Allegra, General Manager for UTA. Ms. Stecklein argued that since UTA was maintaining the data in an electronic format, it must be able to produce it upon request. Ms. Stecklein contended that asking UTA to create a database query is “not tantamount to creating a new record.”
There is a vast difference between not having information, as claimed in UTA’s denial letter, and being unwilling or unsure of how to extract it. UTA is still required by law to provide access or produce the information upon request.
UTA has chosen to store and maintain public records in electronic manner. In any case, UTA cannot store public information in an electronic database and use that – and a claim of ignorance – as an excuse to deny public access, particularly when UTA’s vendor is willing to assist UTA in accessing the information and help the agency provide the record.
On July 17, 2012, W. Steve Meyer, Acting General Manager for UTA, denied Ms. Stecklein’s appeal stating that “UTA has no obligation to provide the records in any compilation other than that which they have already been provided, given the functionality of the software maintained by UTA.” Mr. Meyer stated that Ms. Stecklein had the right to appeal his decision to the UTA Board of Trustees.
In a letter dated August 1, 2012, Ms. Stecklein filed an appeal with Gregory H. Hughes, Board Chair of UTA. Ms. Stecklein stated that she was seeking records that “do in fact exist” and had spoken with UTA “and determined that FatPot is the company that UTA contracts with pertaining to its crime data.” Ms. Stecklein further stated that after speaking at length with “FatPot about our and UTA’s dilemma, FatPot assures us there is a solution” to providing the records to the Tribune. Petitioner, Janelle Stecklein, Reporter for the Salt Lake Tribune, filed an appeal of UTA’s denial of her GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on November 15, 2012, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies that every person has the right to inspect a public record free of charge subject to the requirements of Utah Code §§ 63G-2-203 and 63G-2-204. Utah Code § 63G-2-201(1).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). However, a governmental entity may not charge a fee for: (1) reviewing a record to determine whether it is subject to disclosure except as provided in Utah Code § 63G-2-203(2)(a)(ii), or (2) inspecting a record. Utah Code § 63G-2-203(5).
3. A governmental entity may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of a person to inspect and receive a copy of a record under GRAMA. Utah Code § 63G-2-201(11).
4. Ms. Stecklein stated that the Tribune has filed more than a dozen GRAMA requests with law enforcement agencies in Salt Lake County as part of an ongoing project to analyze verified crime trends. Ms. Stecklein argued that UTA is housing public information with a private entity and using that as an excuse not to produce public records upon request. The Tribune has been able to obtain “the exact same information and databases from nearly every law enforcement agency that received the same GRAMA request.” Ms. Stecklein claimed that FatPot, the third party contracted by UTA to house the crime statistics, would be able to produce the requested information in the format requested. However, counsel for UTA argued that the older version of the software maintained by FatPot made it extremely difficult for UTA produce the requested records without expending many hours of work.
5. After hearing the arguments of the parties, and having reviewed their submissions, the Committee is not persuaded that the difficulties by UTA to produce the requested records should result in a denial of access to the requested records.
6. Pursuant to Utah Code § 63G-2-201(1), every person has a right to inspect a public record subject to statutory restrictions. Additionally, the Utah Legislature recognizing the technology trend to have more records kept in an electronic format, stated its intention that a governmental entity cannot use the electronic form in which a record is stored to “deny or unreasonably hinder” the rights of a person to inspect and receive a copy of a record under GRAMA. See, Utah Code § 63G-2-201(11). Accordingly, UTA’s restriction to Petitioner to have access to its records in its electronic database would result in an effective denial of access to public records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Janelle Stecklein, Reporter for the Salt Lake Tribune is UPHELD and Respondent, the Utah Transit Authority, shall provide access to the Petitioner to the requested records.
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 § 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 § 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 27th day of November 2012.
BY THE STATE RECORDS COMMITTEE
____________________________________
BETSY ROSS, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, REPORTER FOR THE CITY WEEKLY, Petitioner, vs.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
ORDER OF CONTINUANCE
Case No. 13-06
The present case came before the State Records Committee (“Committee”) for a hearing that was held on August 8, 2013. After reviewing the pleadings and hearing oral arguments from the parties, the Committee determined that an in camera review of the disputed records was necessary pursuant to Utah Code § 63G-2-403(9). Since the disputed records were too numerous to review in their entirety during the hearing and a portion of the disputed records were not provided to the Committee to review at the time of the hearing, IT IS HEREBY ORDERED: that this matter is continued until the next scheduled hearing of the State Records Committee which will be held on September 12, 2013, in order to allow the members of the Committee to review the disputed records in camera prior to the hearing.
This Order was made without objection and with the consent of the parties.
Entered this 19th day of August 2013
BY THE STATE RECORDS COMMITTEE
____________________________________
LEX HEMPHILL, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MORGAN FIFE, Petitioner, vs.
CITY OF OREM, Respondent.
DECISION AND ORDER
Case No. 13-14
By this appeal, Petitioner, Morgan Fife, seeks access to documents related to a Request for Proposal (“RFP”) prepared by Respondent, the City of Orem (“Orem”), dated April 18, 2013.
FACTS
On April 18, 2013, Orem released an RFP for “Consulting Services-Employee Benefit Plans.” The purpose of the RFP was to solicit bid proposals from licensed and qualified insurance brokers to provide consulting services to Orem for health, dental, life, accidental death, and long term disability insurance employee benefit plans. The bid proposals were due to Orem by May 16, 2013.
On June 14, 2013, Fife filed a request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) with Orem. Fife requested any and all documents related to the RFP including “RFP responses and submissions; scoring sheets or cards for written responses; scoring sheets or cards for finalist interviews; all written correspondence, emails, & letters; memoranda; notes; receipts.” He also requested correspondence by Orem with any of the respondents in any way related to or concerning the RFP.
In a letter dated July 2, 2013, Heather J. Schriever, Assistant City Attorney, stated that Orem had compiled the records requested and included a schedule of records that would not be produced including private e-mail addresses and personal information on all non-City of Orem employees, and portions of bid proposals submitted by four companies pursuant to Utah Code § 63G-2-305(2) & (6). Fife filed a notice of appeal with Jamie Davidson, Orem’s City Manager and Chief Administrative Officer, regarding the protected classification of the four bid proposals. In a letter dated August 28, 2013, Mr. Davidson affirmed Ms. Schriever’s decision and denied Fife’s appeal. Fife now appeals the City of Orem’s denial of his records request to the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 21, 2013, now 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. Commercial information or non-individual financial information are protected records if properly classified by a governmental entity and if: (1) Disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future; (2) The person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and (3) The person submitting the information has provided the governmental entity with the information specified in Utah Code § 63-2-309. See, Utah Code § 63G-2-305(2).
3. Any person who provides to a governmental entity a record that the person believes should be protected under Utah Code § 63G-2-305(2) shall provide with the record a written claim of business confidentiality and a concise statement of reasons supporting the claim of business confidentiality. Utah Code § 63G-2-309(1)(a)(i).
4. In its response to Fife’s appeal, Orem stated that after it had received Fife’s GRAMA request, it reviewed the bid proposals and found that three of them “contained language indicating that the bid proposals may contain confidential, proprietary, or privileged information.” Orem contacted the fourth bidder and they responded by providing to Orem references to specific content in its bid proposal that should be classified as protected pursuant to Utah Code § 63G-2-305. Based upon these responses, Orem determined that the four bidders had met the requirements of Utah Code § 63G-2-309 and classified the relevant portions of the records as protected.
5. A review of portions of the bids indicates an intention on the part of the bidders to have information classified as protected. One bid had a “confidentiality notice” that included language indicating that the “document and any attachments are for the sole use of the City of Orem and may contain proprietary, confidential, or privileged information.” Another bid was marked “Confidential-Proprietary Information” and stated that pages marked “Confidential” in the proposal “are considered confidential and proprietary” and asserted that “disclosure would provide an advantage to our competitors if they were to obtain this information.” Another bid stated that “[i]nformation contained in this document is proprietary and submitted with the understanding that it will not be used for purposes other than the evaluation of our qualifications without the written prior consent” of the bidder. The fourth bidder provided a letter dated July 1, 2013, that outlined for what parts of its bid a claim of confidentiality was being made by the bidder, and added that the “insurance industry considers such information proprietary, and all insurance companies and agencies maintain that information as confidential.” Counsel for two of the bidders appeared before the Committee confirming their clients’ positions concerning confidentiality of the bids.
6. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, and reviewing portions of the submitted bids, the Committee finds that the four bidders gave sufficient notice concerning confidentiality of their bids as required by Utah Code § 63G-2-309(1) and that the City of Orem properly classified portions of the bid proposals as protected pursuant to Utah Code § 63G-2-305(2).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Morgan Fife is DENIED.
RIGHT TO APPEAL
Any party to this proceeding before the Committee 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 § 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 § 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 3rd day of December 2013,
BY THE STATE RECORDS COMMITTEE
____________________________________
LEX HEMPHILL, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NATE CARLISLE, REPORTER FOR THE SALT LAKE TRIBUNE, Petitioner, vs.
BLUFFDALE CITY, Respondent.
DECISION AND ORDER
Case No. 14 - 03
By this appeal, Petitioner, Nate Carlisle, Reporter for the Salt Lake Tribune, seeks access to records from Respondent, Bluffdale City (“City”), pursuant to Utah’s Government Records Access and Management Act (“GRAMA”).
FACTS
I. Record Request of May 1, 2013
On May 1, 2013 Mr. Carlisle requested access to and copies of the following records:
In his request for these records Mr. Carlisle agreed “to pay a reasonable fee to cover the actual cost of duplicating the records and/or compiling the records in a form other than that maintained by the City”, but also requested a waiver of the fee. On November 22, 2013 the City granted in part and denied in part Mr. Carlisle’s records request. At that time no mention was made by the City concerning neither the fee waiver nor the amount of any fee. On December 17, 2013 the City informed Mr. Carlisle, by email, the total fees for the May 1, 2013 record request was $717.50.
II. Record Request of December 13, 2013
On December 13, 2013 Mr. Carlisle requested access to and copies of the following records:
The requested “records of daily water usage at the Utah Data Center from inception to date” are hereinafter referred to as the “Water Usage Records”.
Mr. Carlisle also requested a waiver of the fees for the December 13, 2013 record request. On December 17, 2013 the City granted in part and denied in part the December 13, 2013 record request stating that “portions of the agreement and the usage data were redacted by the City or by the United States where such information is protected by federal law or by Utah’s Government Records Access and Management Act” specifically citing Utah Code Ann. §63G-2-305(12) and (31) and Section 6 of the national Security Agency Act codified as 50 U.S.C §3605.. The fee charged by the City for the December 17, 2013 records request was $49.95.
APPEAL
On January 16, 2014 Mr. Carlisle filed an appeal with the Manager of the City arguing, in part, that while “The Tribune is not necessarily opposed to paying a modest fee, we believe the amount invoiced here is unreasonable” and “the $767.45 bill 1 was a surprise”. Mr. Carlisle did not appeal any of the denials or redactions associated with the May 1, 2013 records request, but did appeal the denial and redactions associated with the December 13, 2013 records request. Mr. Carlisle argued the records are not protected pursuant to Utah Code Ann. §63G-2-305(12) since “it is not clear how the disclosure of water use records places government property or programs at risk”. Mr. Carlisle further argued that the Water Usage Records were generated by the City and not provided by the federal government to the City, therefore making Utah Code Ann. §63G-2-305(31) “inapplicable”.
Mr. Carlisle’s appeal was denied in part and granted in part, on the same day it was received, by Mark Reid, the Manager (“Manager”) of the City. The Manager granted disclosure of “the agreement for Bluffdale to provide water to the National Security Agency and/or the Utah Data Center” and indicated this agreement was available “upon payment of a reasonable fee”. The Manager affirmed the City’s prior denial of access to the Water Usage Records and stated the redactions on the Water Usage Records were warranted as “that information is protected by federal law” since “the water usage data you requested is information that relates to the function and the activities of the National Security Agency.” 2 The Manager also indicated the redactions to the water usage records were warranted pursuant to Utah Code Ann. §63G-2-305(12) “because their disclosure ‘would jeopardize the security of governmental property, governmental programs , or governmental record keeping systems from damage, theft, or other appropriation or use contrary to law or public policy’. As the NSA attorney explained, disclosing the water usage data could be used to extrapolate the electrical power usage and the computing power of the Utah Data Center.” The Manager also indicated the Water Usage Records are protected pursuant to Utah Code Ann. §63G-2-305(31), as information the United State agencies “ask the City to treat as protected records”. And finally, the Manager stated the combined fee totaling $767.45 was “reasonable for the volume of records ....requested”.
Mr. Carlisle now appeals the denial of the GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony of the parties on March 19, 2014, now 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).
2. Records the disclosure of which would jeopardize the security of governmental property, governmental programs, or governmental recordkeeping systems from damage, theft or other appropriation or use contrary to law or public policy are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(12).
3. Records provided by the United States or by a government entity outside the state that are given to the government entity with a requirement that they be managed as protected records, if the providing entity certifies that the record would not be subject to public disclosure if retained by it, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(31)
4. The federal National Security Agency Act (NSA Act) codified as 50 U.S.C. § 3605, specifies that “nothing in this Act or any other law…shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof…”.
5. GRAMA specifies that a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1).
6. GRAMA specifies that “A governmental entity may not charge a fee for: “reviewing a record to determine whether it is subject to disclosure, except as permitted by Subsection (2)(a)(ii).” Utah code § 63G-2-203(5)(a).
7. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4), may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. See, Utah Code § 63G-2-203(6). The adjudicative body hearing the appeal “has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied,” Utah Code § 63G-2-203(6)(b).
8. Mr. Carlisle argued that the records in question, the Water Usage Records, are public and not protected, for the following reasons:
a. Utah Code § 63G-2-305(31) is inapplicable since the requested records do not belong to the National Security Administration (“NSA”) and the requested record were not given by the NSA to the City, but rather were records created and generated by the City.
b. Mr. Carlisle argued that the NSA and the City would be hard pressed to explain how water usage records would disclose information regarding any of the activities of the NSA and/or the Utah Data Center.
c. The disclosure of the Water Usage Records would not jeopardize the security of governmental property from damage or other appropriation or use contrary to law or public policy.
d. There is no precedent for denying access to water usage reports and records, but rather there is a public interest, at least in an arid state like Utah, to be made aware of the amount of water used and sold by a governmental entity, and there is no jeopardy to any public policy, including divulging information about the activities of the Utah Data Center.
Finally, with regard to the reasonableness of the fees, Mr. Carlisle indicated that, despite the prior fee waiver request he had “no problem” with paying the fee of $49.95 for the Dec. 13, 2013 record request, nor with paying the fee of $285.00 for the charges of the IT provider that was associated with the May 1, 2013 records request. However, Mr. Carlisle did object to any additional fee, which was charged for reviewing a record to determine whether it is subject to disclosure, which used the hourly rate of legal counsel (instead of a clerk or lower-paid employee with expertise in the areas for which the City expressed concern) in calculating the amount of the fee.
9. The City argued the Water Usage Records are “protected under GRAMA Utah Code §63G-2-305(12) and (31) and further not subject to disclosure pursuant to federal law (50 U.S.C. §3605) which preempts GRAMA. These arguments were made at the hearing and set forth in more detail in the City’s March 12, 2014 letter to the State Records Committee. Further, the City argues the fees are reasonable and should be paid before the release of any records.
10. After reviewing the evidence and the testimonies of the parties, the Committee finds that the water usage records are public pursuant to Utah Code §63G-2-201(2). Additionally, the Committee finds that the City may not charge for work to review the records to determine if they are subject to disclosure pursuant to Utah Code§ 63G-2-203(5)(a), but may charge the $285.00 for the cost of the IT provider who searched the City’s computers for the responsive records pertinent to the May 1, 2013 records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of the Petitioner, Nate Carlisle, Reporter for the Salt Lake Tribune, is GRANTED, as follows:
1. The reasonable fee to be paid to the City shall be $334.95, which is comprised of the fee of $49.95 for the December 13, 2013 records request and $285 for the May 1, 2013 records request.
2. The City shall provide Mr. Carlisle with an unredacted copy of the Water Usage Records once the fee is paid.
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 § 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.4
PENALTY NOTICE
Pursuant to Utah Code § 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 28th day of March, 2014.
BY THE STATE RECORDS COMMITTEE
_________________________________________
LEX HEMPHILL, Chairperson
State Records Committee
FOOTNOTES
1 This amount is the total of two fee charges from the City - $717.50 for the May 1st records request and $49.95 for the December 13th records request.
2 The Manager cites, as a basis of his decision, Section 6 of the National Security Agency Act, codified as 50 U.S.C. §3605, which provide “nothing in this Act or any other law.....shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or the names, titles, salaries, or number of the person employed by such agency.”
",Granted,2014-03-28T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROGER BRYNER, Petitioner, vs.
CITY OF COTTONWOOD HEIGHTS, Respondent.
ORDER OF CONTINUANCE
Case No. 13-15
The present case came before the State Records Committee (“Committee”) for a hearing that was held on November 21, 2013. Petitioner, Roger Bryner, had made a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) with Respondent, the City of Cottonwood Heights (“Cottonwood Heights”), for the following records:
1. Any documents showing the policy of charging $10.00 per police report requested at the Cottonwood Heights Police window.
2. Any documents showing the policy of redacting police reports requested at the Cottonwood Heights Police window.
3. Any documents showing policy of denying access to reports if the person has not appeared in court when requested at the Cottonwood Heights Police window.
4. Any documents showing any policy of when requested at the Cottonwood Heights Police window.
5. A copy of each and every GRAMA request made to the Cottonwood Heights Police window in the last year and any information on if a fee was collected and if any redactions were made.
6. A copy of each and every GRAMA request made to the Cottonwood Heights Police window in the last year for which no redaction was made.
7. A copy of each and every GRAMA request made to the Cottonwood Heights Police window in the last year for which no fee was charged.
8. A copy of any emails or written communication between anyone in the police department and City Manager John Park regarding the status of my GRAMA request made on September 10, 2013 and the appeal made to John Park later on the same day.
9. Any internal emails or written communication sent by Gina Talbot regarding my GRAMA request of September 10, 2013.
10. Any internal emails or written communication regarding the letter sent by Attorney David W. Brown to chief Russo on March 23, 2013.
Cottonwood Heights estimated that it would cost approximately $2,142.45 to provide the requested records to Mr. Bryner. In his appeal before the Committee, Mr. Bryner has requested a fee waiver for the estimated cost for the production of the records. During the hearing, counsel for Cottonwood Heights stated that the City had not yet made a determination concerning the classification of the records. Also during the hearing, Mr. Bryner withdrew Requests #’s 4, 5, 6, & 7, but requested a response to numbers 6 & 7. Thereafter the parties jointly requested that the matter before the Committee should be continued until the next regularly scheduled hearing in order to allow Cottonwood Heights to review Mr. Bryner’s modified records request and then classify the records as public, private, controlled, or protected pursuant to GRAMA. According, IT IS HEREBY;
ORDERED: that this matter is hereby continued until the next scheduled hearing of the State Records Committee which will be held on December 12, 2013, in order to allow Respondent, the City of Cottonwood Heights, to review Petitioner, Roger Bryner’s records request and classify the records pursuant to the requirements of GRAMA.
This Order was made without objection and with the consent of the parties.
Entered this 3rd day of December 2013
BY THE STATE RECORDS COMMITTEE
____________________________________
LEX HEMPHILL, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RAYMOND PAYNE, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 14-12
By this appeal, Petitioner, Raymond Payne, seeks a fee waiver for copies of records held by Respondent, the Utah Department of Corrections (“Corrections”).
FACTS
In a letter dated April 10, 2014, Mr. Payne, an inmate housed in the Central Utah Correctional Facility, made a request with Respondent for a copy of Corrections’ Policy FD01 Offender Discipline Procedures. In his request, Mr. Payne stated that he is indigent and requested that Corrections waive the fees for the record. In a letter dated April 11, 2014, Gina Proctor, an employee with Corrections, responded to Mr. Payne and denied his request, citing Utah Code § 63G-2-201(8)(a)(v)(A), which states that a governmental entity is not required to fill a person’s request if the record requested is “accessible in the identical physical form and content in a public publication or product produced by the governmental entity receiving the request,” and informed him that he can view the records which are located in the Inmate Reference Library (“IRL”). The IRL is a collection of Corrections’ policies, a copy of which is kept in every housing block of the Utah State Prison and the Central Utah Correctional Facility.
On April 16, 2014, Mr. Payne appealed the denial to Corrections’ Deputy Director, Mike Haddon. On April 18, 2014, Deputy Director Haddon affirmed the denial of Mr. Payne’s request, citing Utah Code § 63G-2-201(8)(a)(v)(A). On April 21, 2014, Mr. Payne reviewed Corrections’ Policy FD01 in his housing block. Mr. Payne wrote a second letter to Deputy Director Haddon confirming that he viewed the policy, but stated “I am allowed 100 pages of paper copied by the Dept. per year, so far I only have 23.” On May 9, 2014, Deputy Director Haddon denied Mr. Payne’s request for a free personal copy because the policy could be found in the IRL.
Mr. Payne filed an appeal with the State Records Committee (“Committee”) pursuant to Utah Code § 63G-2-403(1). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on July 10, 2014, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (“GRAMA”) specifies that every 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 subject to Utah Code §§ 63G-2-201(1), 63G-2-203, and 63G-2-204.
2. In response to a records request, a governmental entity is not required to fill a person’s request if the record requested is accessible in the identical physical form and content in a public publication or product produced by the governmental entity receiving the request. Utah Code §63G-2-201(8)(a)(v)(A).
3. A governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
4. Counsel for Corrections argued that one of the purposes of the IRL was to make policies similar to the requested record available to prison inmates, and that there would be a great cost to Corrections if every inmate was allowed to have a free personal copy of policies that were already accessible to them from the library.
5. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Mr. Payne failed to prove that he is entitled to a fee waiver pursuant to Utah Code § 63G-2-203(4). Mr. Payne did not demonstrate that his legal rights were directly implicated by the information in the record, Corrections has the discretion to deny his fee waiver request, and Mr. Payne is not unfairly prejudiced with the denial because he still has the ability to view the documents in the IRL.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Raymond Payne, is DENIED.
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 § 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 § 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 18th day of July 2014.
BY THE STATE RECORDS COMMITTEE
_____________________________
LEX HEMPHILL, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SWEN HEIMBERG, Petitioner, v.
PEACE OFFICER STANDARDS & TRAINING. Respondent.
DECISION AND ORDER
Case No. 15-15
By this appeal, Petitioner, Swen Heimberg, seeks access to records allegedly held by Respondent, Peace Officer Standards & Training ("POST").
FACTS
On or about July 11, 2014, Mr. Heimberg made a records request to Peace Officer Standards & Training ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Heimberg requested all investigative files since 2010 that included an allegation under Utah Code § 53-6-211(1)(d), which is conduct that is a state or federal criminal offence, excluding minor traffic offenses. On or about July 31, 2014, Respondent provided a copy of the investigative file relating to the current administrative action pending against Mr. Heimberg, but denied him access to the other investigative files.
Mr. Heimberg appealed Respondent’s response, and on March 2, 2015, Lt. Higgs made available to Mr. Heiberg the following documents: (1) Notices of Agency Action since 2010 dealing with allegations of unauthorized access of BCI records, (2) Default orders or hearing waivers associated with those cases, and (3) Any POST Council audio recording and minutes not posted on POST’s website. Mr. Heimberg was also provided the synopsis and findings sections of nine investigative files with allegations of unauthorized access of BCI records.
On April 1, 2015, Mr. Heimberg filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, on May 14, 2015, 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 § 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. Records are properly classified as protected if release of the records “reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes.” Utah Code § 63G-2-305(10)(a). Records that “reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source” are protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(10)(d). Records containing data on individuals the disclosure of which constitutes a "clearly unwarranted invasion of personal privacy" are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
3. Counsel for Respondent argued that release of information from these investigative files would reasonably interfere with future investigations. Respondent also claimed that within the files is private and sensitive information such as driver's license information, criminal history, background information, marriage status, domestic matters, etc. Additionally, Respondent stated that since some of the allegations made that are contained in the investigation records are unfounded, there should be a greater expectation of privacy for the accused regarding this information pursuant to Utah Code § 63G-2-302(2)(d).
4. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Respondent’s denial of Mr. Heimberg records request, was appropriate, and that the records have been properly classified. (See, Utah Code §§ 63G-2-305(10)(a) and -302(2)(d)). Additionally, redaction of the requested records would not be available in the audio and video recordings, and redaction would not be sufficient to protect the identification of bodies that are part of the reports.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Swen Heimberg, is DENIED.
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) (2015). 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) (2015). 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) (2015). 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) (2015). In order to protect its rights on appeal, a party may wish to seek advice from an attorney.
PENALTY NOTICE
Pursuant to Utah Code § 63G-2-403(15)(c) (2015), 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) (2015). 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) (2015).
Entered this 26th day of May, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
THE SALT LAKE TRIBUNE vs.
UTAH DEPT. OF TRANSPORTATION
DECISION AND ORDER CASE NO. 92-01
The Utah Department of Transportation (UDOT) maintains a traffic accident computer database using accident reports submitted on forms entitled "STATE OF UTAH INVESTIGATING OFFICER'S REPORT OF TRAFFIC ACCIDENT" as source documents. By this appeal the Tribune seeks an order compelling the Department to release a copy of the entire database for the year 1991 on 9-track computer tape. The State Records Committee, having reviewed the written materials submitted by the parties and by the Society of Professional Journalists, and having heard the oral argument and testimony of the parties and comments from other interested persons, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
1. All records are public unless otherwise expressly provided by statute. See Utah Code Ann. 63-2-201(2) (1992).
2. Records to which access is restricted by statute or court rule are not public by virtue of Utah Code Ann. 63-2-201(3) (1992). However, the statutes that UDOT claims restrict access to the requested records are not the type of statutes contemplated by 201(3).
a. UDOT's contention that the requested records are not public because access to them is restricted by the Federal statutes found at 23 U.S.C. 402, 403 and 409 is in error. Regarding access, those Federal statutes simply prohibit discovery of the records in a court proceeding. They do not restrict disclosure of the records under GRAMA.
b. Similarly, UDOT's assertion that the requested records are not public because access is restricted by the State statute found at Utah Code Ann. 41-6-40 (1988) is not correct. That statute does provide for confidential treatment of accident reports but it applies only to reports submitted by owners or operators of vehicles or by garages. The information requested by the Tribune comes from accident reports that are prepared and submitted by police officers. Hence, the statute is not applicable. (Though it may be true that the confidential owner, operator, and garage reports are currently combined with the officer's report to make one report from which the data is taken, we are not convinced that that justifies confidential treatment of the officer's report.)
3. Records that are "protected" under the Government Records Access And Management Act are not public. See Utah Code Ann. 63- 2-201(3) (1992). GRAMA lists thirty-seven categories of records that may be classified as "protected". See Utah Code Ann. 63-2-304 (1992). However, UDOT's contention that the requested records are properly classified as "protected" under GRAMA is not supported by the evidence. In response to questions from the Committee, UDOT could not even specify which of the thirty-seven categories justifies its claim. We find that classification of the records requested in this matter as "protected" is inconsistent with GRAMA and therefore invalid. See Utah Code Ann ~ 63-2-502(2)(b) (1992).
4. Records that are "private" under GRAMA are not public. See Utah Code Ann. 63-2-201(3)(a) (1992). We are concerned that release of the database would violate the privacy rights of individuals, particularly because of the added power of the computer to invade personal privacy. We therefore find that the data elements enumerated below in our Order are "private" pursuant to Utah Code Ann. 63-2-302 (1992) and should not be released.
5. When a record contains both information that a requester is entitled to inspect and information that a requester is not entitled to inspect the governmental entity is required to allow access to the information that the requester is entitled to inspect. See Utah Code Ann. 63-2-307 (1992).
ORDER
THEREFORE IT IS ORDERED THAT:
1. The classification and designation of the requested database is "public", except that the personal data elements listed below are "private". See Utah Code Ann. 63-2-502(2)(b) (1992).
2. The following information in the database is classified as "private":
a. names, street addresses and telephone numbers of individuals;
b. dates of birth;
c. case numbers;
d. accident control numbers;
e. driver's license numbers;
f. vehicle identification numbers; and
g. license plate numbers.
3. UDOT shall not release the information that we have determined to be "private" but shall release the remainder of the requested database.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2- 404 & 502(7) (1992). 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.
Entered this 9th day of October, 1992.
BY THE STATE RECORDS COMMITTEE,
MAX J. EVANS, Chairman
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
AMERICAN CIVIL LIBERTIES UNION vs.
O. LANE MCCOTTER, as Executive Director of the Utah Department of Corrections
DECISION AND ORDER, Case No. 93-07
By this appeal the American Civil Liberties Union ("ACLU") seeks an order compelling the Executive Director of the Utah Department of Corrections ("Department"), O. Lane McCotter, to provide to the ACLU various documents and information regarding the new inmate telephone system; all reports the Department filed with state or federal agencies regarding monitored calls; all information concerning any calls made to Steve Russell, Esq., Brian M. Barnard, Esq., John Pace, Esq., the Utah Legal Clinic, the Utah Civil Rights and Liberties Foundation, Kathryn Kendall, Esq., Michele Parish-Pixler, Carol Gnade, Executive Director, or the American Civil Liberties Union of Utah Foundation, Inc.; and all contracts and related documents between the Department and telephone providers regarding inmate telephone services.
The State Records Committee, having reviewed the written materials submitted by the parties and having heard oral argument and testimony of the parties and other interested parties on November 3, 1993, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISIONS
1. There was dispute regarding whether the materials sought by the ACLU were "records" as defined by Utah Code Ann. 63-2- 10.7 (1.7) (b)(iii) (Supp. 1993). The committee does not reach that question, however, because even if the materials are "records,'' they are "protected'' under Utah Code Ann. 63-2-304(8) and (11) (Supp. 1993).
ORDER
The decision of O. Lane McCotter, Executive Director of the Utah Department of Corrections, is affirmed and the appeal of the ACLU is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 30 days after the date of this Order. The petition for judicial review must be a complaint. The compliant and the appeals process are governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 & 502(7) (Supp. 1993). 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.
DATED this 9th day of November, 1993.
BY THE STATE RECORDS COMMITTEE,
MAX J. EVANS, Chairman.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JAMES N. HAYWOOD vs.
UTAH DEPARTMENT OF CORRECTIONS
DECISION AND ORDER, CASE NO. 93-03
By this appeal James N. Haywood seeks an Order compelling the Utah Department of Corrections to release certain records relating to the investigation by the Department of Corrections of certain criminal charges against him. Mr. Haywood was, at all relevant times, an employee of the Department of Corrections. The criminal charges against Mr. Haywood were dismissed and the criminal proceedings were terminated. No administrative action is pending against Mr. Haywood.
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard testimony and oral argument of the interested parties on decision and order.
STATEMENT OF REASONS FOR DECISIONS
1. The Government Records Access and Management Act (GRAMA) specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2) (1992 Supp.).
2. GRAMA also provides that records that are properly classified as "protected'' are not public. Utah Code Ann. 63-2- 201(3) (1992 Supp.).
3. The records of the investigation in question have been properly classified as protected under Utah Code Ann. 63-2- 304(8)(d) and (e).
4. The Records Committee may, nevertheless, order disclosure of the records of the investigation under Utah Code Ann. 63-2- 403(11)(b) on the ground that ''the public interest favoring access outweighs the interest favoring restriction of access." Id.
5. The Records Committee finds that the interest of Mr. Haywood in disclosure is not a "public interest [that] outweighs the interest favoring restriction of access." Id.
ORDER
THEREFORE IT IS HEREBY ORDERED THAT the decision of the Department of Corrections is affirmed and the appeal is denied.
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 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 by Utah Code Ann. 63-2-404 and 63-2-502(7) (1992). 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.
Entered this 30th day of June, 1993.
BY THE STATE RECORDS COMMITTEE,
MAX J. EVANS, Chairman.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JOHN PACE, vs.
UTAH DEPT. OF CORRECTIONS.
DECISION AND ORDER, CASE NO 93-02
The sole issue in this appeal is whether a request for records filed by Mr. Pace unreasonably duplicates a prior request made by him, thus justifying the Department's refusal to respond to the request. The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the oral argument and testimony of the parties on May 4, 1993, now issues the following decision and order.
BACKGROUND
l. By a letter dated October 27, 1992, Mr. Pace requested certain records relating to the monitoring of inmates telephone calls.
2. The Department apparently did not respond to the request within the time limits specified in the Government Records Access and Management Act (GRAMA). See Utah Code Ann. 63-2-204.
3. GRAMA provides that the failure of a governmental entity to respond within the required time limits in equivalent to a determination denying access. Utah Code Ann 63-2-204(7).
4. After expiration of the time limit for response the attorney for Mr. Pace contacted the Department's records officer by telephone and was informed that the request would be denied.
5. Mr. Pace then filed an action in the Third District Court seeking to compel the Department to grant his request.
6. About the same time, and prior to being served with a summons in the lawsuit, the Department issued a written response to Mr. Pace's original request. That response granted the request in part and denied it in part. It also notified Mr. Pace of his right to appeal the partial denial to the Executive Director of the Department.
7. Mr. Pace did not appeal the partial denial to the Executive Director but rather continued to try to compel compliance through the District Court.
8 By a letter dated March 1, 1993, Mr. Pace again presented the same request for records to the Department, apparently seeking to start the whole process over and cure any defects in his appeal at the denial of his former request.
9. By a letter dated March 9, 1993, the Department informed Mr Pace that it had already responded to the prior request, that it considered the March request to be unreasonably duplicative of the prior request, and that it would therefore not respond further.
10. Mr. Pace appealed that decision to the Executive Director of the Department of Corrections. The Executive Director affirmed the Department's decision and this appeal followed.
11. On or about April 1, 1993, the Third District Court dismissed the lawsuit on the grounds that Mr. Pace did not exhaust his administrative remedies.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (GRAMA) provides that a governmental entity is not required "to fulfill a person's records request if the request unreasonably duplicates prior records requests from that person." Utah Code Ann. 63-2- 201(8) (c) (1992).
2. GRAMA also provides that "any person aggrieved by a governmental entity's access determination...may appeal the determination within 30 days to the chief administrative officer of the governmental entity..." Utah Code Ann. 63-2-401(1) (a) (1992).
3. The Department contends that the 30-day time limit for filing an appeal with the chief administrative officer is jurisdictional and that Mr. Pace lost his right to appeal because he did not file a notice of: appeal within 30 days of the Department's written response of November 20, 1992.
4. The Department further contends that if it is required to respond to the March request, which is a mere duplicate of the November request, the result is that the time limits for filing an appeal under GRAMA are made totally meaningless because such a ruling would allow a requester who did not file an appeal within the required time to circumvent the time limits by merely starting the whole process over. Hence, the Department argues that the March request "unreasonably duplicates" the prior request.
5. We generally agree with the Department's contentions. However, in this case we find that the March request did not unreasonably duplicate the prior request because Mr. Pace did file an appeal of the November denial within the time limit, even though he incorrectly filed it in the in the District Court rather than with the Executive Director. If the Department had issued its written denial within the GRAMA time limits, it is likely that the appeal would have been filed in the proper place because GRAMA requires that a denial contain a statement that the requester has the right to appeal to the chief administrative officer of the agency. The denial must also contain information regarding the time limit for filing an appeal and the name and business address of the chief administrative officer. Utah Code Ann. 63-2-205(2). Because the whole problem could have been avoided if the Department had simply complied with GRAMA and issued its written response within the required time limits, we find that the second request is not unreasonably duplicative.
6. The Department also contends that, because Mr. Pace did not appeal to the Executive Director within 30 days after he received his written notice of his appeal rights in November of 1992, the right to appeal has been lost and any further proceedings are barred by the principle of res judicata. We are not convinced that that principle applies in this case.
ORDER
THEREFORE IT IS ORDERED THAT the Department respond to the March request in accordance with the requirements of GRAMA. The Department shall respond to the request as soon as reasonably possible but no later than 10 business days after the date of this order.
RIGHT TO APPEAL
Pursuant to Utah Code Ann. 63-2-404 this Decision and Order may be appealed to the District Court by either party. The petition for review must be filed no later than 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 by Utah Code Ann 63-2-404 (1992). 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.
Entered this 6th day of May, 1993.
BY THE STATE RECORDS COMMITTEE,
MAX J. EVANS, Chairman
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SUE CHERRY vs.
UTAH STATE UNIVERSITY
DECISION AND ORDER, Case No. 93-04
By this appeal Sue Cherry seeks an order compelling Utah State University to give her access to all files held by Utah State University with her name on it or that pertain to her and the decision regarding her retention. The State Records Committee, having reviewed the materials submitted by the parties, having heard oral argument and statements by the parties, having solicited public comment at the time and hearing of the matter, June 24, 1993, and being fully advised in the premises, now issues the following Decision and Order:
STATEMENT OF REASONS FOR DECISION
1. The records sought by Ms. Cherry were classified by Utah State University as protected pursuant to the Governmental Records Access and Management Act (GRAMA) as records of a public institution regarding tenure evaluation and retention decisions. See Utah Code Ann. 63-2-304(27). At the time of the hearing, Utah State University and Ms. Cherry stipulated and agreed that certain personnel files and other files could and would be made available to Ms. Cherry, but that certain other files were the subject of dispute, often referred to as the "department file."
2. That in connection with a grievance filed by Ms. Cherry, the Utah State University filed and released to her a portion of those protected records as part of the grievance process.
3. It is unfair to allow Utah State University to classify all of Ms. Cherry's records as protected, to then release portions of those protected records in connection with her grievance on the decision regarding her retention, and to not allow her access to those other and further records.
4. That the records sought by Ms. Cherry were initially and properly classified as "protected."
5. That pursuant to Utah Code Ann. 63-2-403(11)(b), the Committee has weighed the various interests and public policies pertinent to the classification and disclosure or non-disclosure of the disputed items, and expressly determines that based upon the disclosure of a portion of these documents to Ms. Cherry that the public interest favoring access outweighs the interests favoring restriction of access, and that the contested documents should be released to Ms. Cherry.
ORDERED
It was therefore Ordered that Utah State University make available to the Petitioner Ms. Cherry all records concerning Ms. Cherry and records involving the decision regarding her retention.
RIGHT TO APPEAL
Pursuant to Utah Code Ann. 63-2-404, any party to this proceeding may petition for judicial review of this Order by filing a Petition in the District Court no later than thirty (30) days of date of this Order.
Entered this 30th day of June, 1993.
STATE RECORDS COMMITTEE:
MAX J. EVANS, Chairman.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UNITED TELEVISION, INC., a Delaware Corporation, d.b.a. KTVX CHANNEL 4, Appellant, v.
UTAH BOARD OF PARDONS AND PAROLE, Appellee
DECISION AND ORDER, Case No. 94-13
By this appeal, United Television, Inc. seeks an order compelling the Utah Board of Pardons to release to it a copy of a video tape regarding an incident at Brigham Young University regarding an assault on Howard W. Hunter, an official of the Church of Jesus Christ of Latter-day Saints. The initial hearing on this matter was held on July 27, 1994 in which the parties appeared and presented argument before the Records Committee. Based on the issues that were raised in that hearing, the Records Committee requested the parties to research and submit memorandum to the Records Committee on the topics discussed. The Records Committee continued the hearing until the memorandum were submitted. The parties did submit the requested memorandum and the hearing was reconvened on October 5, 1994. The State Records Committee, having reviewed the materials submitted by the parties, having heard testimony from witnesses, having heard oral argument and having solicited public comment at the time of the hearing, and being fully advised in the premises, now issues the following Decision and Order.
BACKGROUND
1. The video tape sought by United Television, Inc., was supplied to the Utah Board of Pardons by the Utah County Attorney's Office in response to a request of the Board of Pardons to supply information on Cody Judy, an inmate at the Utah State Prison who had pled guilty and was incarcerated for an assault on Howard W. Hunter at a Church Educational System young adult fireside for the Church of Jesus Christ of Latter-day Saints.
2. The portion of the video sought by United Television, Inc. had been blacked out of the live broadcast and had never been published by the Church Educational System. The Church Educational system claimed copyright privilege of the material and had chosen not to broadcast or publish the portion of the fireside blacked out, but contained on a master tape made of the proceedings.
3. The Utah County Attorney's office obtained a copy of portions of the master tape showing the assault for purposes of prosecution. Without permission from the LDS church or other copyright owner of the video tape, it gave a copy of the video tape to the Board of Pardons. The Video was not shown publicly at the Board of Pardons.
4. United Television, Inc., sought release of the video from the Board of Pardons. The Board denied the release of the video on the basis that it was not a record under Utah Code Ann. 63--2- 103(18)(b)(iii).
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 Ann. 63-2-201(2).
2. Materials kept or maintained by a governmental entity or employee that is not a record under GRAMA is not subject to release and disclosure under the Act and the Records Committee has no jurisdiction over such records. Utah Code Ann. 63-2-103(18)(b).
3. Copyrighted material maintained by the State or any of its agencies is not automatically excluded as being a record under GRAMA. The provision excluding copyrighted material includes provisions that it is not a record if access to the material held by the public entity is limited by copyright.
4. The Church Educational System of the Church of Jesus Christ of Latter-day Saints intended the material contained on the videotape to be copyrighted from its inception and gave no permission for the material contained in the blacked out portion of the video tape but contained on the master to be released to the Board of Pardons. The Church Educational System also never published the material which is subject to the request of United Television, Inc.
5. If the video does not fall under the exclusion of Utah Code Ann. 63-2-103 (18)(b)(iii), it is a record and subject to the jurisdiction of the Records Committee to order released if the Records Committee finds it is not protected by other factors.
6. Testimony and evidence raised the issue of the video being subject to a secrecy order entered by a Judge of the Fourth District Judicial Court in Utah County. The Records Committee need not reach this issue because it resolves the issue on other grounds.
7. The video segment sought is not a record under Utah Code Ann. 63-2-103(18)(b)(iii) because the owner of the video intended the video to be copyrighted and never published it.
ORDER
THEREFORE, IT IS HEREBY ORDERED THAT the decision of the Board of Pardons denying release of the video tape sought by the Appellant is affirmed and the appeal is denied.
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 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). 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.
Entered this 11th day of October, 1994.
BY THE RECORDS COMMITTEE,
MAX J. EVANS,
Chairman, State Records Committee.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
Robert O. Strange, Petitioner vs.
Utah Department of Corrections, Respondent
DECISION AND ORDER, Case No. 96-2
Appellant, Robert O. Strange, seeks an order requiring Respondent to supply specific information related to a background investigation of Petitioner that bears on why Petitioner's application for Correctional Officer with Respondent was denied.
Petitioner submitted written materials, but did not appear personally at the hearing or through counsel, as he advised the committee he would not do. Respondent was represented by Edward Kingsford. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is denied. The denial of Respondent was based on Respondent's assertion that the requested information was background investigation material that included "a personal recommendation concerning an individual [and that] disclosure is not in the public interest" and therefore is "protected" under Utah Code Ann. 63-2-304 (24). The Committee determines that the information requested is in the nature of "personal recommendation," and that its release to Petitioner is not in the public interest, since future background investigations could be compromised and persons who provided information could, under a general policy of release of such information, be endangered. This conclusion is reached on balance despite reasonable arguments that it is not correct that "disclosure is not in the public interest" since disclosure of the source and substance of the information could provide a check on the accuracy of the information.
ORDER
WHEREFORE, it is ordered that Appellant's appeal is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 (Supp. 1995) and 63-2-502 (7) (Supp. 1995). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advice from an attorney.
Entered this 28th day of May, 1996.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KENNETH L. GRAY, vs.
DEPT. OF HUMAN RESOURCE MANAGEMENT
DECISION AND ORDER, CASE NO. 93-05
By this appeal Kenneth L. Gray seeks an order compelling the Department of Human Resource Management (hereinafter referred to as "the Department") to give him certain records and information regarding a meeting that took place in 1991, apparently between the Executive Director of the State Tax Commission, the Executive Director of the Department of Human Services, the State Risk Manager and their legal counsel from the Attorney Generals' Office. The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the oral argument and testimony of the parties August 19, 1993, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
1. The former director of the Department testified that he attended the above-mentioned meeting in an advisory capacity only, that the Department did not create any records regarding the meeting, and that the Department does not have any records of that meeting that have not already been released to Mr. Gray.
2. Mr. Gray contends that the Government Records Access and Management Act (GRAMA) requires the Department to create records that contain the information he seeks. He relies on Utah Code Ann. 63-2-201(8)(b) which provides:
Upon request, a governmental entity shall provide a record in a particular format if: (i) the governmental entity is able to do so without unreasonably interfering with the governmental entity's duties and responsibilities; and (ii) the requester agrees to pay the governmental entity for its additional costs actually incurred in' providing the record in the requested format.
3. That section of GRAMA does not require a governmental entity to create a record that does not exist but rather requires only that the entity provide an existing record in the requested format if the statutory conditions are met.
4. Moreover, the section of GRAMA that immediately precedes the section relied on by Mr. Gray specifies that a "governmental entity is not required to create a record in response to a request". Utah Code Ann. 63-2-201(8)(a) (1992).
5. After considering all of the evidence, we do not believe that the Department has any records regarding the above-mentioned meeting that have not already been released to Mr. Gray.
6. Since the Department is not required to create a record in response to a request, Mr. Grays' appeal must fail.
ORDER
THEREFORE IT IS ORDERED THAT the decision of the Department of Human Resource Management is sustained and the appeal is denied. This decision should not be understood to in any way relieve any governmental entity of its duty to keep adequate records.
RIGHT TO APPEAL
Pursuant to Utah Code Ann. 63-2-404 this Decision and Order may be appealed to the District Court by either party. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 (1992). 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.
Entered this 24th day of August, 1993.
BY THE STATE RECORDS COMMITTEE,
Jeffery O. Johnson, Committee Member and Exec. Sec.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL R. WEIBEL, Appellant, vs
LOGAN CITY, Appellee
DECISION AND ORDER, CASE NO. 94-06
By this appeal, Appellant, Michael R. Weibel, an employee of the Herald Tribune of Logan, Utah, seeks an order compelling Logan City to release to him records appellant described in his written appeal as follows:
The police report completed recently during the investigation of wrongdoings in Logan's Park Department (involving Steve Kyriopoulos and Ed Stephens) and submitted to Mayor Clark. Also, any written agreement that may have been drafted between the city, acting City Attorney Scott Barrett and Steve Kyriopoulos involving the city's willingness not to prosecute.
Appellant appeared personally at the hearing held May 4, 1994. Appellee appeared at the hearing through counsel, Mark Sorenson, Esq.
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal regarding the "police report" is granted in part and denied in part. The appeal regarding a purported written agreement between Scott Barrett and Steve Kyriopoulos is denied on the basis of the non-existence of such a written agreement. The "police report," consisting of a memorandum and a summary of prior notes, is within the category of "record" as defined in Utah Code Ann. 63-2-103(18)(a) and is not excluded from that category by any provision of 63-2-103(18)(b). That portion of the report that pertains only to persons against whom Logan City contemplates no further civil, criminal or administrative action is properly classifiable as a public record under Utah Code Ann. 63-2-201(2) and is not "protected" under Utah Code Ann. 63-2-304(8). However, that portion of the report that pertains to persons against whom criminal action is contemplated or pending is protected under Utah Code Ann. 63-2- 304(8)(a)(b) and (c). The interest in disclosure of the portion of the record described in the immediately preceding sentence does not outweigh the interest favoring restriction of access under Utah Code Ann. 63-2-403(11)(b).
ORDER
WHEREFORE, IT IS ORDERED that appellant's appeal is granted in part and denied in part, the portions of the record identified in the preceding section of this Decision as public to be disclosed to Appellant and the portions identified as protected not to be disclosed.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 & 502(7). 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.
Entered this 9th day of May, 1994.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
THOMAS R. GARCIA, Appellant, v.
UTAH DEPARTMENT OF CORRECTIONS, Appellee.
DECISION AND ORDER, Case No. 94-14
Appellant Thomas R. Garcia, through counsel, seeks an order reversing Appellee's denial of a fee waiver for copying and providing to Appellee, through counsel, certain medical records regarding Appellant that are held by Appellee.
The indicated medical records were requested by counsel in behalf of Appellant under the Utah Government Records Access and Management Act, Utah Code Ann. 63-2-101 et seq. (GRAMA). A waiver of fees for copy costs was incorporated in the request for the records. Appellee perceived the governing statute to be Utah Code Ann. 78-25-25 and supplied records to Appellant's counsel under that section, which requires requesting attorneys to pay the cost of copying all medical records copied and supplied under the section. A bill in the amount of $194.90 for copying the records was sent to Appellant's counsel along with the records. Appellee did not inform Appellant's counsel prior to copying and sending the records that it was processing the request under 78-25-25 rather than GRAMA, that it was denying the request for a fee waiver, or what the copy costs would be.
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is granted. Section 78-25-25 is inapplicable because the records are not held by persons covered by that section, and release of the records under that section was improper. The request for records was made under GRAMA, along with a request for a waiver of copy costs under Utah Code Ann. 63-2- 203(4). For Appellee to process the request under another statute that required the requesting attorney to pay copy costs, and impliedly deny the request for a fee waiver by making and sending the copies without first informing Appellant's counsel 1) that the copies would not be provided under statutory provisions cited in the request, 2) that the fee waiver was denied, and 3) what the cost of the copies would be, is contrary to the interest of justice. Therefore, Appellant is estopped to deny the fee waiver requested by Appellant.
ORDER
WHEREFORE, it is ordered that Appellant's appeal is granted and the denial of the fee waiver reversed. Since the records improperly supplied under 78-25-25 include records not properly releasable under GRAMA, Appellant is ordered to return to Appellee all records, or copies thereof, that Appellee supplied under 78-25-25, not making or retaining any copies thereof. Appellee is ordered promptly to sift the records returned and delete any not properly releasable under GRAMA and then promptly supply to Appellant, or his counsel if he is represented by counsel, all of the copies of records properly releasable pursuant to Appellant's request based on GRAMA.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to District Court. The petition for review must be filed no later than 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 by Utah Code Ann 63-2-402 and 63-2-502(7). 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.
Entered this 20th day of October, 1994.
MAX J. EVANS,
Chair, State Records Committee.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JULIAN DEAN HATCH vs.
UTAH STATE DIVISION OF PARKS AND RECREATION
DECISION AND ORDER, CASE NO. 94-02
By this appeal, Appellant, Julian Dean Hatch seeks an order compelling the Utah State Division of Parks and Recreation to release to him "all records, requests, reports, and accountings for archeological digs and research done at Coombs site, Anasazi State Park since 1970 to 1994."
Appellant submitted written statements, and appeared personally at the hearing of the Committee held February 11, 1994.
Appellee appeared through counsel, David S. Tibbs, Esq. at the February 11, 1994 hearing and submitted written comment, oral testimony through a witness, and oral argument. The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
1. Appellee raised questions whether Appellant had brought himself within the jurisdiction of the Committee. By statute, a records request is deemed denied if not answered within five business days of appeal to the Chief Administrative Officer of the Agency. Appellant submitted a letter dated November 26, 1994 that Appellant considers an appeal, and which, though not entirely clear, may be taken as an appeal to the Chief Administrative Officer from denials of records requests to the Division. Appellant stated he interpreted a letter dated December 10, 1993 from an attorney representing the Division of Parks and Recreation (David S. Tibbs) to be a denial of his "appeal," though the letter does not so state.
Under Utah Code Ann. 63-2-403 (Supp. 1993) Appellant has 30 days to appeal to the Records Committee from a decision of the agency's chief administrative officer, which would expire on January 10, 1994 if the time for appeal ran from the December 10, 1993 date of the letter from Mr. Tibbs. There is a document in the file of the Records Committee from Julian Dean Hatch dated January 11, 1994 and received by the Committee on January 14, 1994, which constitutes Appellant's appeal to the Records Committee. Appellant stated he did not have ready access to the Utah Code to guide his appeal and asserted other extenuating circumstances. Despite the questions regarding jurisdiction, the Committee extends every equitable deference to Appellant and takes jurisdiction of his appeal.
2. The appeal is denied on the merits because the records requested, insofar as the request can be identified, are protected under Utah Code Ann. 63-2-304(25)(26)(Supp. 1993). Also, the request does not provide "a description of the records requested that identifies the record with reasonable specificity." Utah Code Ann. 63-2-204 (Supp. 1993).
ORDER
WHEREFORE, IT IS ORDERED THAT the appeal is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 & 502(7) (1992). 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.
Entered this 17th day of February, 1994.
JEAN BICKMORE WHITE,
Acting Chairman, State Records Committee.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WILLIAM REMINE, Appellant, v.
UTAH DEPARTMENT OF CORRECTIONS, Appellee
DECISION AND ORDER, Case No. 94-10
Appellant, William Remine, seeks an order compelling Appellee, the Utah Department of Corrections, to release to Appellant all records of Appellee regarding Appellant that are classified as "protected." The State Records Committee, having reviewed the written materials submitted by the parties, and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is denied and the agency's decision is affirmed on the basis of Utah Code Ann. 63-2-304(11). It is further determined that Appellee has properly segregated its records under Utah Code Ann. 63-2-307, allowing Appellant access to those records to which he is entitled to access, and denying him access to those records to which he is not entitled to access.
ORDER
WHEREFORE, it is Ordered that Appellant's appeal is denied and the Department's decision is affirmed.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-402 & 502(7). 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.
Entered this 4th day of August, 1994.
MAX J. EVANS,
Chair, State Records Committee.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CLIFTON W. PANOS, Appellant, v.
UTAH STATE TAX COMMISSION, Appellee
DECISION AND ORDER, Case No. 95-01
Appellant Clifton W. Panos seeks an order reversing Appellee's denial of Appellant's request for access to certain records that are held by Appellee. The records in question are filings in the case before Appellant Commission, identified as Appeal # 94-1317, World-Wide Men's Missionary Fellowship, petitioner -- Salt Lake County Board of Equalization, respondent. Appellant acknowledged in his written appeal that in actuality he had access to all filings in the case already through the Salt Lake County Board of Equalization, but in oral argument he stated he needed the records from the Commission in order to have them certified. Appellant also stated in his written appeal that he "would ask the Records Committee to rule on who is the proper classifying agency," arguing that it should be the Commission since most of the records in the case originate with the parties to the case. He further argued that the "Commission cannot refuse to disclose ... its tax law decisions."
STATEMENT OF REASONS FOR DECISION
The Appeal is heard under Utah Code Ann. 63-2-502(c) and is granted with regard to obtaining access to the filings in the identified Case #94-1317, within lawful limitations. Though Appellee has properly classified the records series as "protected," Appellant is entitled to such portion of those records as are found, upon segregation under Utah Code Ann. 63-2-307, not to be "protected" or otherwise legally insulated from access. Appellee should search, segregate and provide access to such records in the case as are not "protected" or otherwise legally insulated from access, but should also withhold access to any of such records that are "protected" or otherwise inaccessible under Utah law. In determining whether an individual record is "protected," or otherwise inaccessible, Appellee should consider the following provisions of law, as well as any others that may require denial of access: Utah Code Ann. 59-1-403, 63-2-302(2)(b), 63-2-304(8)(b), 63-2-304(13), 63-2-304(33), and Utah Admin. R. 861-1A-12(D) (1984).
By implication, this ruling determines that the Commission has the duty to classify records it uses and creates. See Utah Code Ann. 63-2-306. Also, it appears that Appellee already and in the absence of this Order makes public its tax law decisions.
ORDER
WHEREFORE, it is ordered that Appellant's appeal from the denial of his request for access to the indicated records is granted with the limitations indicated.
RIGHT OF APPEAL
Either party may appeal this Decision and Order to District Court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-402 and 63-2-502(7). 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.
Entered this 26th day of January, 1995.
MAX J. EVANS,
Chair State Records Committee.
",Granted,1995-01-26T00:00:00Z "
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
The Salt Lake Tribune, Petitioner vs.
Utah Division of Risk Management, Respondent
DECISION AND ORDER, Case No. 95-09
Appellant, the Salt Lake Tribune, seeks an order requiring Respondent to supply "all documents pertaining to the claims reflected on [an] attached list ... including but not limited to, claim forms or any other paperwork filed pertaining to the claims, and any and all settlement documents."
Appellant was represented by Sharon E. Sonnenreich, General Counsel, and Respondent was represented by Bruce R. Garner, Assistant Attorney General for the State of Utah. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is denied except as noted below with respect to any remaining documents constituting initial claims or final settlement agreements not already supplied, that Respondent may find in its files upon further, diligent search.
It appears that neither party has fully complied with procedural requirements governing requests for documents and responds thereto, but based on requests at the hearing of both parties and the judgment of the committee, all allegations of procedural defects are deemed waived, and the case is hereby decided on the merits. Any records of Respondent that constitute initial claims or final settlement agreements are not "protected" under Utah Code Ann. 63-2-304(23)(Supp. 1995), but are "public" unless otherwise restricted under the Government Records Access and Managemental Act (GRAMA). See Utah Code Ann. 63-2-201(1) and (2) (Supp. 1995); Utah Code Ann. 63-2-304(32)(Supp. 1995). Respondent asserts it has already supplied all of those records of initial claims and final settlement agreements it has found in its files and Petitioner acknowledges it has received certain copies of initial claims or final settlement agreements, or both, but argues there are more. Respondent shall supply to Petitioner at a cost indicated by statute copies of any additional public records of initial claims and final settlement agreements it may find upon further, diligent search of its records.
Under Utah Code Ann. 63-2-304(23)(Supp. 1995), all records Respondent has of investigations of loss occurrences and analyses of loss occurrences that may be covered by the Risk Management Fund are "protected," including records of investigations that are closed, and shall not be released to Petitioner.
ORDER
WHEREFORE, it is ordered that Appellant's appeal is denied, except as indicated above with regard to any remaining records of initial claims or final settlement agreements not already supplied by Respondent that Respondent may find upon further, diligent search of its records.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404(Supp. 1995) and 63-2-502(7)(Supp. 1995). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advice from an attorney.
Entered this 18th day of October, 1995.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WALTER E. BRANTZEG, Appellant, v.
UTAH DEPARTMENT OF CORRECTIONS, Appellee
DECISION AND ORDER CASE NO. 95-03
Appellant, Walter E. Brantzeg, seeks an order reversing Appellee's denial of Appellant's request for certain records that are held by Appellee. The records in question are stated in Appellant's records request to be "Psychological Results from Personality Inventories, and I.Q. tests given me by the Prison or Medical/Psychology department" and "reports from Dr. Austin and Dr. Waisesha [sic] stating my needs for medication I've been on, Diagnosis of problems while in Prison and notes." Appellee initially denied Mr. Brantzeg access to all the records requested on grounds they were "controlled" under Utah Code Ann. 63-2-303 or in the possession of the Board of Pardons and Parole.
Prior to the hearing (on May 5, 1995), Appellee supplied to Appellant a substantial portion of the records requested on the basis they were, upon further search and closer scrutiny, "private" records held by Appellee and releasable to Appellant as the subject of the records. However, Appellee continued to withhold certain records as "controlled," those records being the psychological results from personality inventories and I.Q. tests. Still other requested records not supplied are held by the Board of Pardons and Parole rather than Appellee. Appellant was present at the hearing before the Records Committee held May 9, 1995, and represented himself, and Appellee was represented at the hearing by Larry Tracy. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The Appeal is denied. The records remaining in Appellee's possession -- excluding those already supplied and those in the possession of the Board of Pardons and Parole -- are correctly classified as "controlled" under Utah Code Ann. 63-2-303. Further, it is determined that upon application of the "weighing" provision of Utah Code Ann. 62-2-403(11)(b), Appellee correctly withheld the remaining records it correctly classified as "protected."
ORDER
WHEREFORE, it is ordered that Appellant's appeal is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advice from an attorney.
Entered this 11th day of May, 1995.
MAX J. EVANS,
Chair, State Records Committee.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
HARSHAD P. DESAI, Petitioner, v.
GARFIELD COUNTY, Respondent.
DECISION AND ORDER
Case No. 15-01
By this appeal, Petitioner, Harshad P. Desai, seeks access to records potentially held by Respondent, Garfield County.
FACTS
In 2013, appraisals were completed on three separate properties owned by the Petitioner. Said appraisals were completed by an independent contractor hired by Garfield County. Pursuant to the Government Records Access and Management Act (“GRAMA”), Petitioner requested records from Respondent relating to the appraisals, the individual appraisers and their credentials to appraise the properties. Respondent notified Petitioner that they do not maintain the records that the Petitioner was seeking including information related to the appraisers and their individual credentials. Given Petitioner’s numerous and redundant GRAMA requests, Respondent did attempt to satisfy Petitioner’s requests and obtained license information related to the appraisers, which was provided to Petitioner. In an email dated December 2, 2014, Petitioner stated that the Respondent was unresponsive to his request and filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on January 8, 2014, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Utah Code § 63G-2-201(8)(a)(i) states:
In response to a request, a governmental entity is not required to:
(i) create a record;
(ii) compile, format, manipulate, package, summarize, or tailor information;
(iii) provide a record in particular format, medium, or program not currently maintained by the governmental entity;
(iv) fulfill a person’s records request if the request unreasonable duplicates prior records requests from that person…”
2. In the present case, counsel for Garfield County stated that the Respondent does not have or maintain the records requested by the Petitioner through GRAMA, and should not be required to “create a record” pursuant to Utah Code § 63G-2-201(8)(a)(i).
3. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that the Respondent is not obligated to “create a record” in response to the Petitioner’s GRAMA request pursuant to Utah Code § 63G-2-201(8)(a)(i). Therefore, Garfield County cannot provide Mr. Desai access to records which the Respondent does not maintain.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Harshad P. Desai, is DENIED.
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 § 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 § 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 20th day of January 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
THOMAS DUDLEY BECK, Petitioner, v.
BLUFF WATER WORKS SPECIAL SERVICE DISTRICT, Respondent.
DECISION AND ORDER
Case No. 15-11
By this appeal, Petitioner, Thomas Dudley Beck, seeks access to records allegedly held by Respondent, Bluff Water Works Special Service District (“BWWSSD”).
FACTS
On or about November 19, 2014, Mr. Beck made a records request to Bluff Water Works Special Service District ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Beck requested water usage data from 2007 through 2014 provided by Respondent. Mr. Beck stated in his letter that he had “attached 8 blanks for each calendar year since 2007-2014” and requested that Respondent “[c]omplete and return the 8 water use data forms” to him.
Mr. Beck’s request was denied in a letter from Walter J. Bird, Deputy San Juan County Attorney, representing BWWSSD, that was dated December 2, 2014. Mr. Bird stated in the letter that the records requested “are not maintained by the BWWSSD” and therefore, Respondent was not required to create a record responsive to his request. In another letter dated December 19, 2014, Mr. Bird again restated the denial of Mr. Beck’s GRAMA request and notified Mr. Beck of his right to file an appeal.
On or about December 22, 2014, Mr. Beck filed a Notice of Appeal to San Juan County’s Records Officer, Norman Johnson. In a letter dated December 29, 2014, Mr. Johnson denied Mr. Beck’s appeal stating that he did “not see a reason to overturn the denial so stated by Mr. Bird in his letter dated December 19, 2014, and believe his statements as to the rule of law in this matter are correct.”
On or about January 13, 2015, Mr. Beck filed a Notice of Appeal to the San Juan County Commission. In a letter dated February 2, 2015, Kelly Pehrson, San Juan County Administrator, notified Mr. Beck that his records request “does not involve a request or denial of records controlled by San Juan County” and was not, therefore, subject to the San Juan County GRAMA Ordinance 1992-2 which provides an appeal right for a GRAMA request denied by the county.
On or about March 4, 2015, Mr. Beck filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on April 9, 2015, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i). The governmental entity is also not required to provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(a)(iii). However, every 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).
2. In the present case, Mr. Beck stated that he was not concerned about the specific format of the data. Mr. Beck stated that he simply wanted the water usage data by Respondent during the requested period of time.
3. Counsel for Respondent stated that the water system in Bluff, Utah, is controlled and managed by Respondent which was created as a special service district in 2005 by the voters/property owners in Bluff to manage the system. Counsel argued that the Respondent did not maintain the records in the requested format Mr. Beck had requested, and as such, Respondent was not required to create records under Utah Code § 63G-2-201(8)(a)(iii). Counsel for Respondent further clarified that the records were available, but they would be in a broader format than what was being requested by Mr. Beck.
4. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that although Respondent does not have a document that is responsive to Mr. Beck’s request, it does have a database that contains the public water usage data that is responsive to Mr. Beck’s request which is in a broader format than what was originally requested by Mr. Beck. GRAMA does not restrict the public from being able to access public information that is in database.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Thomas Dudley Beck, is GRANTED.
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 § 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 § 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 20th day of April, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson Pro-Tem,
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
REGINALD WILLIAMS, Petitioner, vs.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 13-07
By this appeal, Petitioner, Reginald Williams, seeks access to documents from Respondent, the Utah Department of Corrections (“Corrections”). This appeal is a consolidation of several records requests made by Mr. Williams, and denials of those requests by Corrections.
FACTS
On or about January 18, 2013, Mr. Williams requested Peace Officer Standards and Training (“POST”) records for seven former and current Corrections employees. Corrections denied the request finding that “[t]hese are not prison records.” Mr. Williams filed an appeal of the decision and in a letter dated March 12, 2013; the Acting Executive Director of Corrections wrote that further investigation found that the requested records were maintained by Corrections. Corrections later determined that these records were considered protected records pursuant to Utah Code § 63G-2-305(11) & (13).
In a document dated April 15, 2013, Mr. Williams filed a records request with Corrections for the “incident report (IR-1)” written regarding an incident occurring at the prison on April 13, 2013. The Division of Institutional Operations denied the request stating that the information was private or protected pursuant to Utah Code § 63G-2-302 & -305. Mr. Williams filed an appeal of the decision and in a letter dated May 13, 2013, the Deputy Director of Corrections denied the request finding the information contained in the IR-1 “is private and protected” pursuant to Utah Code § 63G-2-302(2) and -305(9).
In a letter dated July 7, 2013, Mr. Williams requested a consolidation of his appeals. The Utah State Records Committee (“Committee”) having reviewed the arguments submitted by the parties regarding the consolidated appeals, and having heard oral argument and testimony on August 8, 2013, now 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. Utah Code § 63G-2-305 states that the following governmental records are considered protected records if they are properly classified by a governmental entity: (1) Records the disclosure of which would jeopardize the life or safety of an individual; and (2) Records that if disclosed, would jeopardize the security or safety of a correctional facility, or records relating to incarceration, treatment, probation, or parole, that would interfere with the control and supervision of an offender’s incarceration, treatment, probation, or parole. See, Utah Code § 63G-2-305(11) & (13).
3. Corrections presented testimony at the hearing that release of POST training records for prison personnel could result in harm to persons and/or jeopardize the security or safety of the prison. Corrections argued that the disputed records were properly classified by Corrections to be protected records pursuant to Utah Code § 63G-2-305(11) & (13).
4. In Whiteman v. Utah Dept. of Corr., State Records Committee Decision No. 96-03 (June 20, 1996), the Committee previously held that Corrections’ classification of the information contained within the IR-1 form as protected “is justified and is consistent with GRAMA.” See also, Penman v. Utah Dept. of Corr., State Records Committee Decision No. 94-17 (Nov. 17, 1994).
5. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, and reviewing in camera the disputed POST records, the Committee finds that Corrections properly classified the records as protected records pursuant to Utah Code § 63G-2-305(11) & (13).
ORDER
THEREFORE, IT IS ORDERED THAT the appeals of Petitioner, Reginald Williams are DENIED.
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 § 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 § 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 19th day of August 2013,
BY THE STATE RECORDS COMMITTEE
____________________________________
LEX HEMPHILL, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL G. AMANN, Petitioner, v.
DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.
DECISION AND ORDER
Case No. 15-03
By this appeal, Petitioner, Paul G. Amann, seeks access to records held by Respondent, Utah Department of Human Resource Management.
FACTS
On October 21, 2014, Mr. Amann made a records request to the Utah Department of Human Resource Management (“DHRM”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Amann requested a copy of a complaint filed against him by an employee of the Utah Department of Commerce alleging “workplace harassment.” Mr. Amann also requested all records used to support the complaint, and all communications: (1) To and from the Utah Division of Securities (“Securities”) employees regarding the complaint; (2) Between Securities and the Utah Attorney General’s Office regarding the complaint; and (3) Between the complainant and DHRM.
On November 3, 2014, the records officer for DHRM denied Mr. Amann’s records request, finding that the records were protected pursuant to Utah Code §§ 63G-2-305(10)(a), -305(18), and -305(25), noting that the records were part of an ongoing investigation by DHRM. Mr. Amann filed an appeal of the denial with Debbie Cragun, Executive Director of DHRM. In a letter dated November 21, 2014, Ms. Cragun upheld the initial denial of Mr. Amann’s records request, noting that GRAMA “is designed to prevent the subject of an investigation from being able to obtain a copy of the complaint during a pending investigation into the subject’s conduct.”
On December 16, 2014, Mr. Amann filed an appeal with the State Records Committee (“Committee”). Prior to the appeal being heard by the Committee, DHRM’s investigation in response to the complaint filed against Mr. Amann was completed, and documents responsive to Mr. Amann’s records request were provided to Mr. Amann. The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on January 8, 2015, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Records created or maintained for administrative enforcement or discipline are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to interfere with investigations undertaken for enforcement or discipline purposes. Utah Code § 63G-2-305(10)(a).
2. In the present case, DHRM stated that the investigation was completed on or about December 3, 2014, and the investigation found no merit to the filed complaint. Accordingly, DHRM claimed that all documents responsive to Mr. Amann’s records request were provided to him. However, DHRM could not certify that copies of all communications related to the records request have been provided, but would be willing to conduct an additional search to find any other documents that were responsive to Mr. Amann’s request.
3. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that based upon DHRM completing investigation, Mr. Amann is entitled to receive records responsive to his request. 1
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul G. Amann, is GRANTED.
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 § 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 § 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 20th day of January 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
1 It should be noted that Mr. Amann wrote a letter to Ms. Cragun dated December 3, 2014 regarding her November 21, 2014 decision denying his appeal. In the letter Mr. Amann stated that the investigation had been completed on November 18, 2014, and that he was “writing to renew my request that you provide the information I have requested” and that he wanted “[i]n addition,…any documentation generated by Ms. Adkins during her now complete investigation.” DHRM treated Mr. Amann’s letter as a new records request, and as such, responded with a decision from its records officer dated December 17, 2014. Accordingly, this decision by the Committee only addresses records requested by Mr. Amann in his October 21, 2014 request, and does not include any additional records requested by Mr. Amann in his November 18, 2014 letter.
",Granted,2015-01-20T00:00:00Z "",Dismissed,2015-05-26T00:00:00Z "
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KEVIN OPSAHL, THE HERALD JOURNAL, Petitioner, v.
UTAH STATE UNIVERSITY. Respondent.
DECISION AND ORDER
Case No. 15-20
By this appeal, Petitioner, Kevin Opsahl, a staff writer with The Herald Journal, a newspaper located in Logan, Utah, seeks access to records held by Respondent, the Utah State University.
FACTS
In an e-mail dated April 14, 2015, Mr. Opsahl made a records request to the Utah State University ("USU"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Opsahl requested “[a]ll contracts between Maverik and Utah State University related to the corporate sponsorship and renaming of Romney Stadium.” In a letter dated April 17, 2015, counsel for USU denied Mr. Opsahl’s records request, claiming that the records were protected records pursuant to a request by Maverik Inc. (“Maverik”) for business confidentiality for the terms of the contract pursuant to Utah Code §§ 63G-2-305, -309 and 53B-16-304.
Mr. Opsahl filed an appeal with USU that was received on April 21, 2015. In a letter dated April 24, 2015, David Cowley, Vice President of Business and Finance with USU denied Mr. Opsahl’s appeal based upon Maverik’s request for business confidentiality. On April 28, 2015, Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, on June 11, 2015, 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. Contracts entered into by a governmental entity are normally public to the extent that the record is not expressly exempt from disclosure pursuant to Utah Code §§ 63G-2-201(3)(b), -302, -304, or -305. Utah Code § 63G-2-301(3).
3. Commercial information or non-individual financial information obtained from a person is protected information if properly classified by a governmental entity and “disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future.” Utah Code § 63G-2-305(2).
4. Counsel for USU argued at the hearing that the entire contract between USU and Maverik was properly classified as “protected” pursuant to the requirements in Utah Code § 63G-2-305(2). Counsel claimed that USU would be impaired in their ability to enter into similar contracts in the future, and that disclosure of the terms of the contract could reasonably be expected to result in competitive injury to Maverik in the future. Counsel contended that since USU was actually receiving money from Maverik for the naming rights of the football stadium, it was not necessary for the public to know the exact terms of the contract.
5. A representative of Maverik also testified at the hearing concerning the economic harm that could result to Maverik if the terms of the contract were disclosed to the public. Counsel for Maverik submitted a letter to the Committee dated June 4, 2015, stating that Maverik entered into the contract with the understanding that the contract would remain confidential, stating that “confidentiality is important to protect our current and future negotiations for other naming rights agreements, sports and other sponsorship negotiations, as well as all other forms of media and advertising buying.”
6. Mr. Charles McCollum, Managing Editor at The Herald Journal, testified at the hearing concerning the importance of the public knowing the terms of contract regarding the naming of USU’s football stadium including the amount paid by Maverik, and the length of the contract. Joel Campbell, a member of the Board of Directors with the Utah Headliners Chapter, Society of Professional Journalists (“Board”), also testified in favor of disclosure of the terms of the contract. The Board additionally submitted a letter dated June 1, 2015, to the Committee, stating that the Board supports releasing the contracts relating to the corporate sponsorship and renaming Romney Stadium because “naming rights…should be among the most transparent items in the state budget.”
7. After reviewing the arguments submitted by the parties and interested parties, hearing oral arguments and testimony during the hearing, and reviewing the disputed records in camera, the Committee found that the records were improperly classified as protected records, and should be considered public records pursuant to Utah Code § 63G-2-301(3)(d). One of the constitutional rights recognized by the Utah Legislature with the enactment of GRAMA is the “public’s right of access to information concerning the conduct of the public’s business.” See, Utah Code § 63G-2-102(1)(a). Although the Legislature also recognizes a public policy interest in allowing government to restrict access to certain records for the public good, (Utah Code § 63G-2-102(2)), the committee did not find a prevailing interest in restricting access in this case. It is also the intent of the Legislature to “favor public access when, in the application of this act, countervailing interests are of equal weight.” Utah Code § 63G-2-102(3)(e). Contracts entered into by a governmental entity are normally public, and in order to make them non-public under Utah Code § 63G-2-305(2), the person submitting the information must have a greater interest in prohibiting access than the public’s interest in obtaining access. When considering the public’s interest in the knowing the terms and circumstances of the subject contract, the Committee finds that the public’s interest outweighs Maverik’s interest prohibiting public access. Accordingly, Utah Code § 63G-2-305(2) cannot be relied upon by USU to prohibit access to the requested records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is GRANTED.
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 its 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 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 22nd day of June, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
DEPARTMENT OF PUBLIC SAFETY, DIVISION OF PEACE OFFICERS STANDARDS AND TRAINING (POST), Respondent.
DECISION AND ORDER
Case No. 15-05
By this appeal, Petitioner, Scott Gollaher, seeks access to records potentially held by Respondent, Department of Public Safety, Division of Peace Officers Standards and Training.
FACTS
In a letter dated October 17, 2014, Mr. Gollaher made a records request to the Department Of Public Safety, Division of Peace Officers Standards and Training (“POST”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested information pertaining to the possible disciplinary action(s) taken against former Detective William Z. Wetland, Badge No.: 20911, with relation to a conference held in Mesquite, Nevada during the week of September 24, 2012. In a letter dated on or about December 17, 2014, Mr. Gollaher was notified that his request was denied because POST does not have any records responsive to the October 17, 2014 GRAMA request. Said conference was not sponsored by POST, thus POST is not required to maintain any documents related to the conference, including any potential information that POST may or may not have been notified of. The conference is believed to have been sponsored by the Utah Attorney General’s Office.
On or about December 8, 2014, Mr. Gollaher filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on January 8, 2014, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In the present case, counsel for POST clearly identified that POST does not have any records responsive to Mr. Gollaher’s October 17, 2014 GRAMA request. Notice was provided to Mr. Gollaher in a letter dated December 17, 2014 that no responsive records were available; however, the State Records Committee was not notified of said response until January 7, 2014. As such, this hearing could not be vacated in a timely manner.
2. As there are no existing records to provide to Mr. Gollaher, and POST responded appropriately, the State Records Committee is unable to order that any information be released.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher, is DENIED.
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 § 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 § 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 20th day of January 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DANIEL RIVERA JR., Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 15-14
By this appeal, Petitioner, Daniel Rivera, Jr., seeks access to records held by Respondent, Utah Attorney General’s Office.
FACTS
In a letter dated November 12, 2014, Mr. Rivera made a records request to the Utah Attorney General’s Office (“Respondent”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Rivera requested copies of “Search warrant, Police Reports, Probable Cause Affidavit, CI Statements, Witness Reports from neighbors etc., Statements of Children if any, any and all DCFS statements, petitions, [and] motions filed” related to a police raid at his residence and related to DCFS case #030116813 “and so on.”
In a letter dated January 29, 2015, the Respondent partially granted and partially denied Mr. Rivera’s request. Some records were provided including redacted portions of the records, and a portion of the records provided were denied and redacted. Mr. Rivera appealed the partial denial, and in a letter dated February 26, 2015, the denial was upheld by Parker Douglas, General Counsel and Chief of Staff for Respondent.
On or about March 31, 2015, Mr. Rivera filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on May 14, 2015, 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. Additionally, a record to which access is restricted pursuant to a court rule, another state statute, federal statute, or federal regulation, is also not a public record. Utah Code § 63G-2-201(3)(b).
2. Counsel for Respondent argued that all records withheld from Mr. Rivera were properly classified as non-public records. Some of the records were classified as protected records pursuant to Utah Code § 63G-2-305(18) because they were created for or by an attorney in anticipation of litigation. Respondent also argued that a portion of the requested records are private records pursuant to Utah Code §§63G-2-302(1)(a) and -302(2)(d), because they involve details of an individual’s eligibility for social services and release of the records would be an “unwarranted invasion of personal privacy.” Additionally, a portion of the records involve juvenile court records, which pursuant to Utah Code § 78A-6-115, are considered non-public records. See, also Judicial Council Rules of Judicial Admin. R. 4-202.02 “Records Classification” and R.4-202.03 “Records Access.”
3. Respondent further argued that it could not provide some of the requested records because they are records of a client governmental entity of the Attorney General’s Office, and therefore pursuant to Utah Code § 67-5-15(1), these records are not considered records of Respondent. Concerning Mr. Rivera’s request for records “and so on,” Respondent claimed that such a request was not reasonably specific for a records request pursuant to Utah Code §§ 63G-2-204(1)(b) and 63G-2-201(7)(b).
4. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that the Respondent properly classified all the records and has already provided all records Mr. Rivera was entitled to receive, from Respondent, pursuant to his records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Daniel Rivera, Jr., is DENIED.
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) (2015). 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) (2015). 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) (2015). 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) (2015). In order to protect its rights on appeal, a party may wish to seek advice from an attorney.
PENALTY NOTICE
Pursuant to Utah Code § 63G-2-403(15)(c) (2015), 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) (2015). 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) (2015).
Entered this 26th day of May, 2015
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
GRAY SMITH, Petitioner, v.
COTTONWOOD HEIGHTS CITY, UTAH. Respondent.
DECISION AND ORDER
Case No. 15-22
By this appeal, Petitioner, Gray Smith, seeks access to records allegedly held by Respondent, Cottonwood Heights City, Utah.
FACTS
On April 10, 2015, Mr. Smith made a records request to Cottonwood Heights City, Utah ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Smith requested “[a]udio of April 9 Board of Adjustment meeting” and “[c]opies and records of detailed inquiries and investigations of the City’s determination of alleged improper communications of Giverny appeal. (March 20, 2015, BOA City’s response memorandum page (7).).” On April 24, 2015, Respondent, via the City Recorder, provided the Petitioner with a response, a copy of the requested audio recording and the investigation records as they pertained to the factual basis for the City’s statement in its responsive brief in the pending Giverny appeal. In the response provided by the Respondent, the Petitioner was notified that the remaining records were withheld due to attorney client privilege, as it relates to litigation strategy, and as protected under Utah Code § 63G-2-101 et seq.
Pursuant to the GRAMA request the Respondent provided certain attorney client privileged records under Utah Code § 63G-2-401(6). Respondent further noted that “[b]y providing these arguable protected records, however, the City does not waive, relinquish or in any way diminish its claim of attorney client privilege as to any other matters or records whatsoever.” On May 5, 2015, Petitioner appealed the response, and on May 11, 2015, the decision was affirmed by the City Manager.
On June 9, 2015, Mr. Smith filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, on July 9, 2015, 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 subject to the attorney client privilege are protected if properly classified by a governmental entity. Utah Code § 63G-2-305(17).
3. Counsel for Respondent argued at the hearing that the records were properly classified as protected attorney client privileged communications pursuant to Utah Code § 63G-2-305(17), and that these records specifically related to litigation strategy. Counsel further noted that by previously providing attorney client records due to balancing interests, the City “did not waive, relinquish, or in any way diminish its claim of attorney client privilege as to any other matters or records.
4. The Committee reviewed the disputed records in camera and found the records were properly classified by Respondent as protected records pursuant to Utah Code § 63G-2-305(17).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Gray Smith, is DENIED.
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 its 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 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 20th day of July, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NESTOR GALLO, Petitioner, v.
PROVO CITY HOUSING AUTHORITY. Respondent.
DECISION AND ORDER
Case No. 15-30
By this appeal, Petitioner, Nestor Gallo seeks access to records allegedly held by Respondent, the Provo City Housing Authority.
FACTS
On or about July 13, 2015, Mr. Gallo made three records requests to the Provo City Housing Authority ("Respondent"), pursuant to the Government Records Access and Management Act ("GRAMA"). First, Mr. Gallo requested a "[s]taff report or documentation related to the [i]ncrease of the Executive Director Compensation reviewed and approved by the Provo City Housing Authority Board [i]n the PCHA public meeting dated Wednesday December 17 2014 … plus the audio files." Second, Mr. Gallo requested for the "Saint Francis Apartment project: Copies of the bid schedule including unit prices, quantity take offs and general contractor's contact information…[as well as] [c]opies of all the change orders including unit prices…." He also requested for the "Ekin Project: a) Copy of the project bid schedule with unit quantity take offs from all the contractors b) Contractors' name and contact information. Finally, Mr. Gallo requested a copy of the section of the PCHA code stating that the location of a net play pen is a violation to some form of code, and copy of the audio files from February 25, 2015 PCHA Board public meeting."
Respondent provided copies of some of the requested records. Among the records not provided were the Saint Francis Apartment Project records, and on or about August 20, 2015, Mr. Gallo filed an appeal of denial with Jeremy Runia, Respondent's Executive Director. On September 8, 2015, Mr. Runia stated that "[t]he recommendation from legal counsel in the financial information requested is a Protected Record per the Government Records [Access] And Management Act 63G-2-305(4)." Mr. Runia further stated that PCHA does not have records that specifically document the executive director’s pay increase. Neither does PCHA have records on a policy that mentions a net playpen or a specific document containing a financial analysis, which was used as a basis for reducing benefits.
On September 9, 2015, Mr. Gallo filed an appeal with the State Records Committee ("Committee"). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 12, 2015, now 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 private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. GRAMA defines a "record" as a "book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics: (i) that is prepared, owned, received, or retained by a governmental entity or political subdivision…" Utah Code § 63G-2-103(22)(a).
3. A governmental entity may classify commercial information or non-individual financial information obtained from a person as a protected record if the person submitting the information provides the governmental entity with the information specified in Utah Code § 63G-2-309. Utah Code § 63G-2-305(2)(c). A person who provides to a governmental entity a record that the person believes should be protected pursuant to Utah Code § 63G-2-305(2) "shall provide with the record" a written claim of business confidentiality and a concise statement of reasons supporting the claim of business confidentiality. Utah Code § 63G-2-309(1)(a)(i), emphasis added. See also, Fife v. City of Orem, Utah 4th Dist. Ct. Case No. 140400007, (Oct. 22, 2014).
4. Respondent argues that the disputed records were properly classified as "protected" records pursuant to Utah Code Utah Code § 63G-2-305(2). However, Respondent noted that the record, at the time of the receipt, no confidentiality claim was filed with Respondent. Respondent's understanding was that the records were originally prepared by and submitted to the Saint Francis Apartment Project, for which Respondent only had a 1% ownership. The remaining 99% of the ownership is held by the Saint Francis Apartment Project, which believes that the records should be protected and not released, and that the Respondent does not have the authority to release the record. Respondent contends that because the records are created for the Saint Francis Project, LLC, they are not subject to public disclosure.
5. In the present case, Mr. Gallo stated the Respondent satisfactorily answered his questions about all other requests during the hearing with the exception of the Saint Francis Apartment Project. He only seeks the information for records that pertain to the Saint Francis Apartment Project.
6. The Committee, after reviewing the arguments submitted by the parties, hearing oral argument and the testimony, and based upon the evidence that was presented, finds that pursuant to Utah Code § 63G-2-103(22)(a)(i), the disputed records are considered governmental "records" under GRAMA because Respondent received and retained them.. Since a claim of confidentiality was not provided "with the record" at the time they were received by Respondent, the records cannot be considered protected records under Utah Code § 63G-2-305(2). Accordingly, the records are considered public governmental records and Mr. Gallo is entitled to receive a copy of said records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nestor Gallo, is GRANTED.
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 its 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 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 November, 2015.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KARL LOSEE, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 15-18
By this appeal, Petitioner, Karl Losee, seeks access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On a form dated January 9, 2015, Mr. Losee made a records request to the Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Losee requested copies of all e-mail messages between March 6, 2014, and January 9, 2015, generated by specified Corrections’ employees regarding him. On January 16, 2015, Corrections’ records officer rejected the request on the basis that it lacked specificity and required a money transfer to pay for the records request. On or about February 13, 2015, Corrections received Mr. Losee’s resubmitted request for e-mail messages of Corrections’ employees. Corrections’ records officer partially approved the request, and Mr. Losee was provided with 50 pages of redacted e-mails, claiming that the redacted portions of the records contained private information.
On or about March 25, 2015, Mr. Losee appealed the response to Deputy Director, Mike Haddon, arguing that he was entitled to the redacted portions of the e-mails. Mr. Haddon denied Mr. Losee’s appeal finding that the redacted portions were properly classified as private information. Mr. Losee filed an appeal with the State Records Committee (“Committee”), which was received on April 2, 2015. Additionally, on or about January 30, 2015, Mr. Losee made a second records request to Corrections regarding e-mail messages from December 2009 to March 31, 2010. This appeal was similarly denied by Corrections and in addition one e-mail was denied in its entirety as protected. An appeal was filed with the Committee.
During the appeals proceeding, June 11, 2015, Mr. Losee accepted all redacted e-mails and requested only access to one e-mail (on or about December 2009 to March 31, 2010) that was denied and classified protected. The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, on June 11, 2015, for both appeals, the Committee 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 § 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. Records are properly classified as protected if release of the records “… would jeopardize the security or safety of a correctional facility, or records relating to incarceration, treatment, probation, or parole, that would interfere with the control and supervision of an offender's incarceration, treatment, probation, or parole.” Utah Code § 63G-2-305(13).
3. Counsel for Corrections argued that release of the requested information would greatly impact and jeopardize the safety, security, and management of the correctional facility, and that this record should not be released pursuant to Utah Code § 63G-2-305(13).
4. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, and reviewing the record in camera, the Committee finds that Corrections’ denial of Mr. Losee’s record request, was appropriate, and that the record has been properly classified as “protected” pursuant to Utah Code § 63G-2-305(13).
5. The Committee also finds that Corrections could have additionally classified the record as “protected record” pursuant to Utah Code § 63G-2-305(10)(e), which allows protection for records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records reasonably could be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts.
ORDER
THEREFORE, IT IS ORDERED THAT the appeals of Petitioner, Karl Losee, are DENIED.
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 its 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 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 22nd day of June, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RICHARD PARKS, Petitioner, v.
UTAH DIVISION OF CONSUMER PROTECTION. Respondent.
DECISION AND ORDER
Case No. 15-26
By this appeal, Petitioner, Richard Parks, seeks access to records held by Respondent, the Utah Division of Consumer Protection.
FACTS
On June 16, 2015, Mr. Parks requested from Respondent, the Utah Division of Consumer Protection ("Consumer Protection"), a copy of "the investigative report on Case #83905, and all notes and recorded phone calls" concerning a complaint he had filed with Consumer Protection on November 10, 2014. In response, Consumer Protection partially granted Mr. Parks’ request, providing him with records that had been classified as protected and private records "since you are the subject of the records and the person who submitted the records." However, Consumer Protection denied the request to the extent that it sought other documents in the investigative file.
In a letter dated June 30, 2015, Mr. Parks filed an appeal with Francine A. Giani, Executive Director of the Utah Department of Commerce. The appeal was assigned to Masuda Medcalf, an administrative law judge, who after reviewing Mr. Parks’ arguments and Consumer Protection’s file, found that the partial denial of Mr. Parks' request was appropriate. Judge Medcalf held that the investigation file contained private records such as witness names and contact information “the release of which would be a clearly unwarranted invasion of personal privacy” pursuant to Utah Code § 63G-2-302(2)(d). He also found that Utah Code § 63G-2-305(10) protects witness names, contact information, and information provided by witnesses.
On July 31, 2015, Mr. Parks filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review on October 8, 2015, now 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 Ann. § 63G-2-201(2). Records that are properly classified as "private," "protected," or "controlled" are not public records. See, Utah Code §§ 63G-2-201(3)(a), -302, -303, -304 and -305. A record to which access is restricted pursuant to another state statute is also not a public record. Utah Code § 63G-2-201(3)(b).
2. If properly classified by a governmental entity, records that are created or maintained for civil, criminal, or administrative enforcement purposes are "protected records" if the records could reasonably be expected to disclose the identity of a source who is not generally known outside of government, and in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(d).
3. Additionally, records that are maintained for civil, criminal, or administrative enforcement purposes, and have been properly classified as a protected record, are not subject to disclosure if release of the records could reasonably be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts. Utah Code § 63G-2-305(10)(e).
4. Further, pursuant to the Utah Consumer Sales Practice Act ("Act"), the Utah Division of Consumer Protection in carrying out its duties "may not publicly disclose the identity of a person investigated unless the identity has become a matter of public record in an enforcement proceeding or has consented to public disclosure." Utah Code § 13-11-7(2).
5. Counsel for Consumer Protection, argued that GRAMA and the Act do not allow Consumer Protection to release the subject records. Counsel wrote that "the Final Investigative Report is replete with information solicited" by the investigator conducting his investigation of the complaint filed by Mr. Parks. Counsel argued that:
If an individual cooperates with a governmental entity by furnishing requested information, that person should not have to fear reprisal or retaliation for assisting in a government investigation. If such information was not protected, individuals might fear retaliation by the subject of the investigation (or even the complainant), and they would be much more reticent to furnish the government with helpful information. This, in turn, would have a significant chilling effect on a governmental entity’s ability to effectively conduct its investigations.
6. After reviewing the arguments submitted by the parties and interested parties, hearing oral arguments and testimony during the hearing, and reviewing the disputed records in camera, the Committee found that the subject records were properly classified as non-public records. The correspondence records within the investigation file should not be released because they are protected records pursuant to Utah Code § 63G-2-305(10)(d) & (e). However, the committee determined, based on an in camera review of the final report, the final report can be released with redactions made by Consumer Protection as follows: (1) any information identifying sources pursuant to Utah Code § 63G-2-305(10)(d), (2) the name of the company investigated pursuant to Utah Code § 13-11-7(2).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is 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 its 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 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 20th day of October 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROBERT GEHRKE, REPORTER FOR THE SALT LAKE TRIBUNE, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 15-34
By this appeal, Petitioner, Robert Gehrke, Reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office. The subject of the alleged records, Phil Lyman, was also allowed to participate as an Intervenor.
FACTS
On July 21, 2015, Mr. Gehrke made a records request to the Utah Attorney General’s Office ("AG's Office"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gehrke requested “…copies of the file of any closed investigation conducted into San Juan County Commissioner Phil Lyman within the last five years.” On October 23, 2015, Blaine Ferguson, an Assistant Attorney General with the AG's Office, denied Mr. Gehrke’s records request stating “[w]ithout saying whether it has any records responsive to your request, the Office respectfully denies your request. The Office can provide you with no further information in response to your request.”
On October 26, 2015, Mr. Gehrke filed an appeal, via e-mail, with the AG's Office. In a letter dated October 30, 2015, Parker Douglas, Chief of Staff and Federal Solicitor for the AG's Office, denied Mr. Gehrke’s appeal, claiming that he could neither confirm nor deny that any records exist that were responsive to Mr. Gehrke's records request. Mr. Douglas added that if any records did exist, “release of those records would constitute a clearly unwarranted invasion of privacy" under Utah Code Ann. § 63G-2-302(2)(d).
On November 3, 2015, Mr. Gehrke filed an appeal on behalf of the Salt Lake Tribune with the State Records Committee (“Committee”). Pursuant to Utah Code § 63G-2-403(6), Mr. Lyman was allowed to intervene, after the Committee received his request to intervene on November 13, 2015.
On November 24, 2015, the AG's Office filed with the Committee, a "Motion for Order Implementing Certain Procedures to Preserve Confidentiality" ("Motion"). In the Motion, the AG's Office requested that the Committee allow presentation of "all of its submissions to the Committee under seal" and not allow the presentation to be disclosed "to anyone else, including the Petitioner Robert Gehrke, [Mr. Lyman], other State Records Committee staff, or the public." The AG's Office also offered to have counsel for the AG's Office "available to answer questions to the Committee on an ex parte basis in a closed hearing." Petitioner opposed the Motion and provided arguments against the Motion in an email submitted to the Committee dated November 25, 2015. Counsel for Mr. Lyman submitted a Memorandum supporting the Motion, requesting that any information and/or data gathered by the AG's Office about him [Mr. Lyman] "only be referenced and not produced" and that Mr. Gehrke "should have limited, to no involvement, regarding the relief presently sought by the AG's Office."
On December 10, 2015, the Committee held a public hearing to consider the merits of the Motion and Petitioner's Appeal. After having reviewed the arguments submitted by Petitioner, the AG's Office, and Mr. Lyman's legal counsel, hearing oral argument and testimony from all of the parties, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. If the decision of the Chief Administrative Officer of a governmental entity is to affirm the denial of a record request, the requester may appeal the decision to the Committee as provided in Utah Code § 63G-2-403. Utah Code § 63G-2-402(1)(a). The notice of appeal shall include a copy of the decision being appealed and state the relief sought. Utah Code § 63G-2-403(2)(b) & (c). The records committee appellant may file a short statement of facts, reasons, and legal authority in support of the appeal. Utah Code § 63G-2-403(3)(b).
2. After receiving a copy of the notice of appeal, the governmental entity shall submit to the Committee a written statement of facts, reasons, and legal authority in support of the governmental entity's position. Utah Code § 63G-2-403(5)(a). The governmental entity shall send a copy of the written statement "to the requester or interested party involved in the appeal." Utah Code § 63G-2-403(5)(b). Similarly, a person whose legal interests may be substantially affected by the proceedings before the Committee, may file a request for intervention before the Committee, and "written statement of facts, reasons, and legal authority in support of the intervener's position shall be filed with the request for intervention." Utah Code § 63G-2-403(6)(b), emphasis added. Additionally, copies of these materials shall be provided "to all parties to the proceedings before the records committee." Utah Code § 63G-2-403(6)(c).
3. The Committee "shall hold a hearing" and at the hearing, "shall allow the parties to testify, present evidence, and comment on the issues" and "may allow other interested persons to comment on the issues." Utah Code § 63G-2-403(9)(b), emphasis added. The Committee may review the disputed records in camera, and members of the Committee "may not disclose any information or record reviewed by the committee in camera unless the disclosure is otherwise authorized" by GRAMA. Utah Code § 63G-2-403(9).
4. In addition to the hearing procedures outlined in GRAMA, the Committee is considered a "Public Body" subject to the Utah Open and Public Meetings Act ("OPMA") pursuant to Utah Code § 52-4-103(9), and is required to "take their actions openly" and "conduct their deliberations openly" See, Utah Code § 52-4-102(2).
5. The AG's Office argued that GRAMA allows a governmental entity to not disclose a description of a record or citations to GRAMA or other authority, when denying access to a record, if that descriptive information or citation discloses private, controlled, or protected information or information exempt from disclosure under Utah Code § 63G-2-201(3)(b). See, Utah Code § 63G-2-205(2)(b) & (c). The AG's Office further argued that similar provisions exist for the Committee because an order from the Committee shall include citations and a description of the record unless the information discloses "private, controlled, or protected information..." See, Utah Code § 63G-2-403(12)(a) & (b). The AG's Office claims that a combination of these two provisions shows that the Legislature intended to allow a governmental entity to make arguments before the Committee, ex parte.
6. Petitioner argued that allowing a governmental entity to argue before the Committee, ex parte, would deny a records committee appellant "a fair and impartial hearing on the matter at hand."
It would create a scenario where one party, the Attorney General's office, would have unfettered access to the filings and arguments being made by the Tribune, while the other parties in the matter would have to simply guess at what contentions are being raised by the state, essentially fighting in the dark with one arm behind their [back]. As the motion notes, it would leave the ability of the Tribune to have "substantive involvement being very limited."
7. After carefully considering the parties' arguments, the Committee unanimously finds that the "Motion for Order Implementing Certain Procedures to Preserve Confidentiality" should be denied. The Committee's procedures are outlined in statute by the Legislature in both GRAMA and OPMA, and a review of the plain language of these statutes shows that they do not provide a mechanism where one party may argue before the Committee, ex parte, while excluding the opposing party and the public in general. While Courts may have the authority to close hearings, allow ex parte arguments, or even allow the disclosure of non-public records to legal counsel for a party, the Committee does not believe that it has such authority. Allowing only the governmental entity to make arguments before the Committee would not allow "the parties to testify, present evidence, and comment on the issues." See, Utah Code § 63G-2-403(8).
8. Further, one of the primary purposes of hearings before the Committee is to allow Requestors an opportunity to have their GRAMA requests heard by a neutral third party without requiring legal counsel or court filing fees. If the Committee were to allow a governmental entity to make ex parte arguments in a closed hearing, it would set a dangerous precedent where other governmental entities would seek similar hearings, effectively eliminating a records committee appellant's right to argue and have a fair hearing before the Committee without legal counsel. Further, the Committee’s refusal to hold a closed hearing for a governmental entity would not be prejudicial to the governmental entity because an appeal to district court is de novo, and a Court may through its inherent authority, limit access to individuals concerning records and arguments presented to the Court. See, Utah Code § 63G-2-404(4) & (5). Accordingly, based upon the Committee's interpretation of applicable law, the Motion is denied.
9. After the Committee denied the AG's Office's Motion, the AG's Office did not present any argument or citations to statute concerning why the records, if they exist, should not be made public. The AG's Office claimed that any citations, or even an acknowledgement that records exist, would itself be a disclosure of private, controlled, or protected information.
10. 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.
11. Without any reference to any citation that designates the records as private, protected, or controlled, and having been denied the opportunity to review records in camera, the Committee cannot find that Petitioner should be denied access to the records because all records are public unless expressly provided by statute. The Committee does not have any evidence that a record does not exist that is responsive to Petitioner's request, or a citation to a statute that allows the AG's Office to not disclose whether a responsive record exists. Accordingly, the Committee finds that the AG's Office possesses a record that is responsive to Petitioner's request, and the record should be classified as a "public" record subject to disclosure.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is GRANTED.
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 its 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 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 21st day of December, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
HELEN REDD, FOR AND ON BEHALF OF MARC JENSEN, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 16-08
By this appeal, Petitioner, Helen Redd, for and on behalf of Marc Jensen, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On October 9, 2015, Ms. Redd made a records request to the Utah Attorney General’s Office ("AG's Office"), pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Redd requested “[a]ny and all documents that would support representations of the Office of the Attorney General at the August 23rd 2011 hearing, Jan 30, 2012 letter to the Board of Pardons and Parole and on any other occasion where the AG office made statements that Marc Jensen paid no restitution in Case no. 051905391, (filed 3d Dist Utah).”
On October 26, 2015, Blaine Ferguson, an Assistant Attorney General with the AG's Office, denied Ms. Redd records request on the grounds that the request was not sufficiently specific. On November 25, 2015, Ms. Redd appealed the denial, and on December 3, 2015, Parker Douglas, Chief of Staff and Federal Solicitor for the AG’s Office, issued a decision affirming the denial.
Ms. Redd filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, on February 11, 2015, 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 § 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. If the records are not designated as either “private,” “protected,” or “controlled,” and the “person identified the record with reasonable specificity,…” a governmental entity shall provide a person with a certified copy of the requested record. See Utah Code § 63G-2-201(7).
3. The AG’s Office argued that the requested record was not “sufficiently specific,” and therefore, denied the request.
4. "Reasonable specificity" should be defined as whether a reasonable person can understand what records are being requested by the requestor. A review of the records request made by Ms. Redd shows that it was reasonably specific, especially after Ms. Redd provided clarification at the hearing concerning what was being requested. Accordingly, the AG's Office should fulfill Ms. Redd's records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is GRANTED.
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 its 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 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 February, 2016
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JOHN RICE, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 15-32
By this appeal, Petitioner, John Rice, seeks access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On or about December 17, 2014, Mr. Rice made a records request to Utah Department of Corrections ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Rice requested “records obtained during my [LEB] background investigation…all records relating to discussions regarding [Petitioner’s] previous employment, including what statements were made, and by whom.” On or about January 15, 2015, Respondent notified Mr. Rice that the request was denied and that the records were classified as “private” pursuant to Utah Code § 63G-2-302(2)(d). On or about March 6, 2015, Mr. Rice appealed the denial to Deputy Director Mark Haddon, who upheld the decision that the record was appropriately classified as “private.”
On or about July 29, 2015, Mr. Rice submitted an identical GRAMA request, and the request was denied on August 7, 2015, on the grounds that the record was classified as “private” and because the request was a duplicative request pursuant to Utah Code § 63G-2-201(8). Mr. Rice appealed the second denial to Deputy Director Mark Haddon, and on or about September 1, 2015, Mr. Haddon notified Mr. Rice, via letter, that the decision to deny was being upheld on the grounds that the responsive record was appropriately classified as “private.”
Mr. Rice filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 12, 2015, now 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 private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy, are private records pursuant to Utah Code § 63G-2-302(2)(d).
3. Utah Code § 63G-2-305 states that the following governmental records are considered protected records if they are properly classified by a governmental entity: (1) Records the disclosure of which would jeopardize the life or safety of an individual; and (2) Records that, if disclosed, would jeopardize the security or safety of a correction facility, or records relating to incarceration, treatment, probation, or parole, that would interfere with the control and supervision of an offender’s incarceration, treatment, probation , or parole, See, Utah Code § 63G-2-305(11) & (13).
4. Respondent presented testimony that in order to properly consider applicants for employment with Respondent, a background report is prepared which requires reception of confidential information from individuals. Additionally, applicants voluntarily sign a form notifying individuals that the information they provide will be confidential and that the applicant has voluntarily agreed to the confidentiality. The applicant's willingness to allow this information to remain confidential, and the individual's reliance on this statement of confidentiality are critical to the effectiveness of background investigations. Respondent argued that it would be a clearly unwarranted invasion of personal privacy to the individuals providing this information to release the information.
5. Respondent also argues that if released, records could jeopardize the life and safety of an individual or security of a correctional institution. “And those who provide information may be subject to retaliation by the applicant for doing so.” In addition, it could compromise the safety of “inmates, officers and other members of the public, and will threaten the security of UDC’s correction facilities.”
6. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds the record not protected in this instance pursuant to Utah Code §§ 63G-2-305(11) & (13). The Committee does find that Respondent properly classified portions of the record. As it relates to the statement of Mr. Rice’s former employer, the committee was not persuaded that an employer, or institution of employment, has an individual right of privacy as stated in the statute. Therefore, the statement of the employer’s representative were ordered released with the personal identifying information redacted pursuant to Utah Code §§ 63G-2-302(2)(d).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, John Rice, is 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 its 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 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 November, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee11232015
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL CLÁRA, Petitioner, v.
SALT LAKE CITY SCHOOL DISTRICT. Respondent.
DECISION AND ORDER
Case No. 16-06
By this appeal, Petitioner, Michael Clára, seeks access to records allegedly held by Respondent, Salt Lake City School District.
FACTS
Mr. Clára is the District Two elected member of the Salt Lake City School Board for the Salt Lake City School District (“Respondent”). On August 27 & 28, 2015, Mr. Clára submitted five records requests to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Clára’s requested:
1. Records regarding repairs made to busses that were the subject of a recall between August 1, 2014, and the date of the request, and a request to reclassify documents provided in response to a prior request as public.
2. Copies of all records documents relating to the District’s relationship with Columbus Community Center, between January 1, 2014, and the date of this request.
3. Copies of all records pertaining to the District’s communications with the U.S. Department of Education’s Office for Civil Rights between January 1, 2013, and the date of this request.
4. Copies of all records relating to certain statements made by the District Superintendent in a video interview with the Salt Lake Tribune on August 25, 2015.
5. Copies of all records relating to the District’s RFP JB1541-LS for Professional Legal Services.
After going through an appeals process with Respondent, Mr. Clára filed an appeal with the State Records Committee (“Committee”). Mr. Clára appealed: (1) The denial of his fee waiver request for Requests #’s 2, 3, and 5; and (2) The classification of records responsive to Request #’s 1 and 4 as non-public. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony at a hearing held on February 11, 2016, and reviewing records responsive to Request #1 in camera, the Committee 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. Every 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 subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1).
2. If a person who makes a records request pursuant to Utah Code § 63G-2-203 is denied access to a record, the requester may appeal the access denial to the chief administrative officer of the governmental entity by filing a notice of appeal within 30 days after the governmental entity sends notice of the denial. Utah Code § 63G-2-401(1)(a). If the chief administrative officer of the governmental entity affirms the denial of a record request, the requester may either appeal to the Committee, or petition for judicial review in district court. Utah Code § 63G-2-402(1)(a). An appeal with the Committee must be filed with the executive secretary of the Committee “no later than 30 days after the date of issuance of the decision being appealed.” Utah Code § 63G-2-403(1)(a).
3. In the present case, Janet Roberts, Respondent’s Business Administrator, serves as Respondent’s chief administrative officer for GRAMA appeals. Ms. Roberts denied Mr. Clára’s Requests #’s 3 and 4 by letter dated October 20, 2015. Mr. Clára filed an appeal of these denials with the Committee on December 15, 2015. Since Mr. Clára failed to file an appeal with the Committee within 30 days after the date of issuance of the decision being appealed, the Committee does not have jurisdiction to review Requests #’s 3 and 4. Accordingly, Requests #’s 3 and 4 are dismissed.
4. Even though every 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, a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record into an organization or media to meet the person’s request. Utah Code § 63G-2-203(2)(a)(i). A person may request a waiver of the fees associated with the actual costs incurred by the governmental entity, and the governmental entity is generally encouraged to waive these fees when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record; or (3) The requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4).
5. Under GRAMA, the discretion for granting a fee waiver is left to the governmental entity providing the record. A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b).
6. In the present case, Mr. Clára asked for a fee waiver for Request #’s 2 and 5. Counsel for Respondent stated that the actual costs associated with the two records requests were $212.80 and $900.00 respectively. When weighing the actual costs incurred by Respondent for providing the records with the public interest in the records, the Committee finds that Respondent’s denial of Mr. Clára’s fee waiver request was not an unreasonable denial, and therefore, upholds Respondent’s decision regarding fee waivers for Request #’s 2 and 5.
7. Records that are subject to the attorney client privilege are protected if properly classified by a governmental entity. Utah Code § 63G-2-305(17). Additionally, records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected if properly classified by a governmental entity. Utah Code § 63G-2-305(18).
8. Request #1 was for records regarding repairs made to busses subjected to a safety recall between August 2014 and August 2015. Respondent classified some records responsive to Mr. Clára’s request as protected records pursuant to Utah Code § 63G-2-305(17) and (18).
9. In his appeal to Ms. Roberts dated October 13, 2015, Mr. Clára wrote that he was “appealing this denial on the basis that I am a duly elected member of the governing body of the government agency in which I am requesting the information.” He also stated that because of his position as a school board member, he was “entitled by law to inspect the record.” In a letter dated October 29, 2015, Mr. Clára asserted that he was requesting a “reclassification of the documents” as public records in order to “provide it to the public so that legislation can be crafted that would protect students riding a school bus.” In a letter dated November 16, 2015, Ms. Roberts denied Mr. Clára’s appeal holding that “two records were properly withheld because they were classified as protected records under GRAMA.”
10. The single issue before the Committee regarding Mr. Clara’s Request #1 was whether Respondent properly classified the two records as protected records pursuant to Utah Code § 63G-2-305(17) & -305(18). After reviewing the records in camera, the Committee finds that based upon the information contained within the documents, they were properly classified by Respondent as protected, and accordingly, Mr. Clára’s appeal for Request #1 is denied.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Clára, is DENIED.
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 its 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 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 February 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRYAN THATCHER, Petitioner, v.
UTAH DEPARTMENT OF PUBLIC SAFETY. Respondent.
DECISION AND ORDER
Case No. 16-13
By this appeal, Petitioner, Bryan Thatcher, seeks access to records allegedly held by Respondent, the Utah Department of Public Safety.
FACTS
On or about December 7, 2015, Mr. Thatcher made a records request to the Utah Department of Public Safety ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”) requesting:
All written reports, notes, recordings and/or videos of interviews and/or statements, and any other records held by DHRM regarding [Petitioner]. This includes records, documents, notes, and statements from all parties with regard to any and all investigations conducted by internal affairs or professional standards of, or related to [Petitioner].
The request also sought “[a]ll written reports, notes, or any other records held by, or in possession of DHRM and the Department of Public Safety related to [Petitioner].”
On or about January 5, 2016, Respondent provided some records that were responsive to Mr. Thatcher’s request, but denied access to the remaining records. Mr. Thatcher appealed the decision to Commissioner Keith D. Squires. After reviewing Mr. Thatcher’s records request, Mr. Squires upheld the denial to the records.
Mr. Thatcher filed an appeal with the State Records Committee (“Committee”). On April 14, 2016, the Committee held a hearing and heard oral arguments from the parties. During the deliberation phase of the hearing, a motion was made by a Committee member to review the disputed records in camera. When it was determined that the records were too numerous to review in its entirety during the hearing on this matter, the Committee voted unanimously to continue the hearing to a later date in order to allow sufficient time for Committee members to review the disputed records. Neither party objected to the continuance. Accordingly, IT IS ORDERED THAT:
ORDER
The hearing is CONTINUED to a later date. The records provided by Respondent to the Executive Secretary for the Committee, shall be secured at the State Archives Building in order to allow an in camera review by the Committee.
Entered this 25th day of April, 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 15-28
By this appeal, Petitioner, Paul Amann, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On April 22, 2015, Mr. Amann filed a records request pursuant to the Government Records Access and Management Act (“GRAMA”) with the Utah Attorney General’s Office (“AG’s Office”). Mr. Amann made eighteen requests which were numbered 1 through 18. Based upon denials from the AG’s Office, Mr. Amann filed an appeal with the State Records Committee (“Committee”). The parties submitted documents and arguments to the Committee regarding this matter, and a hearing was held by the Committee on October 8, 2015, where oral argument was presented by the parties. The only requests being considered by the Committee are Mr. Amann’s requests numbered #1, #10, #11, #12, and #18. Based upon all evidence presented to the Committee, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A requester or interested party may appeal an access denial to the chief administrative officer of the governmental entity by filing a notice of appeal with the chief administrative officer within 30 days after the governmental entity sends a notice of denial or the record request is considered denied pursuant to Utah Code § 63G-2-204(8). Utah Code § 63G-2-401(1)(a).
2. Regarding Record Request #1, counsel for the AG’s Office stated that the final response to Record Request #1 was provided by the AG’s Office to Mr. Amann on May 22, 2015. Included in the final response was language concerning Mr. Amann’s right to appeal the decision to the chief administrative officer of the AG’s Office “within 30 days of the date of this response.” The AG’s Office stated that Mr. Amann did not file an appeal for Record Request #1 until July 4, 2015, which was received by the AG’s Office on July 6, 2015. The AG’s Office argued that since Mr. Amann did not file a timely appeal within 30 days as required by Utah Code § 63G-2-401(1), his appeal before the Committee was procedurally defective and should not be considered by the Committee. The Committee finds the AG’s Office’s arguments persuasive and holds that Record Request #1 is not properly before the Committee because of Mr. Amann’s failure to comply with the requirements of Utah Code § 63G-2-401(1).
3. Regarding Record Request #10, the AG’s Office argued that when Mr. Amann filed his appeal in July 2015, he did not file an appeal for Record Request #10. A review of the July 2015 appeal shows that Mr. Amann stated that his appeal was for “in particular, my Requests Nos. 1 through 9 and 11 through 18.” Accordingly, the Committee finds that for Record Request #10, Mr. Amann failed to exhaust his administrative remedies as provided for in GRAMA, and failed to file a timely appeal pursuant to Utah Code § 63G-2-401(1).
4. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are properly classified as “private,” “protected,” or “controlled” are not public records. See, Utah Code §§ 63G-2-201(3)(a), -302, -303, -304 and -305.
5. Utah Code § 63G-2-302(2)(a) states that if properly classified by a governmental entity, records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, but not including records that are public under -301(2)(b) or -301(3)(o), or private records under -301(1)(b), are considered “private” records.
6. Mr. Amann’s Record Request #11 was for any and all communications regarding the hiring of the attorney who replaced Mr. Amann at the AG’s Office as assigned legal counsel to the Utah Division of Securities. Record Request #12 was for any and all documentation of the AG’s Office “following policy 2.2 regarding the hiring of” the replacement attorney.
7. After having reviewed the records responsive to Record Requests #11 and #12 in camera, the Committee finds that the records are private records pursuant to Utah Code § 63G-2-302(2)(a) because they involve current or former employees of the AG’s Office, and are not considered public records under -301(2)(b) or -301(3)(o).
8. Mr. Amann’s Record Request #18 was for any documentation regarding decisions made by the AG’s Office concerning two employees who according to Mr. Amann, maintained “their supervisor pay, though they are no longer supervisors.” After having reviewed the records responsive to this request in camera, the Committee finds that the records are private records pursuant to Utah Code § 63G-2-302(2)(a) because they involve current or former employees of the AG’s Office, and are not considered public records under -301(2)(b) or -301(3)(o).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is DENIED.
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 its 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 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 20th day of October 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 16-10
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, Utah Attorney General’s Office.
FACTS
In June and July 2015, Mr. Sullivan made requests for records to the Utah Attorney General’s Office ("AG’s Office"), pursuant to the Government Records Access and Management Act (“GRAMA”). Due to the AG’s Office receiving a large number of requests, several extensions to the response deadlines were given for Mr. Sullivan’s requests. One of the requests was for “[a]ny, and all, emailed sent and received” by a specific individual that mentioned Mr. Sullivan’s name, or specific case numbers within the subject and/or body of the messages between “Jan. 1, 2012 to present.”
Mr. Sullivan filed an appeal with the State Records Committee (“Committee”), claiming that the delays by the AG’s Office were “unreasonable.” After holding a hearing on January 14, 2016, the Committee found that Mr. Sullivan had failed to file an appeal with the chief administrative officer for the AG’s Office as required by Utah Code § 63G-2-401(1). Sullivan v. Utah Attorney Gen. Office, State Records Committee Case No. 16-01 (Jan. 26, 2016).
After filing an appeal with the AG’s Office, Mr. Sullivan filed a second appeal with the Committee, arguing that the AG’s Office still had not provided all records responsive to his GRAMA request. On or about March 7, 2016, the AG’s Office mailed Mr. Sullivan additional records. However, the mailing envelope was returned undelivered to the AG’s Office on March 16, 2016, one day prior to the hearing before the Committee.
At the Committee hearing held on March 17, 2016, counsel for the AG’s Office brought the additional records that had been mailed to Mr. Sullivan, and argued that Mr. Sullivan’s appeal was moot because all records had now been provided to Mr. Sullivan. However, since Mr. Sullivan was attending the hearing telephonically, Mr. Sullivan could not review the additional records at that time and determine whether the AG’s Office had in fact complied with his records request.
ORDER
THEREFORE, IT IS ORDERED THAT the hearing on this matter is CONTINUED until the next available hearing of the State Records Committee, in order to allow Petitioner, Patrick Sullivan, sufficient time to review the additional documents provided by Respondent, the Utah Attorney General’s Office, and determine whether the AG’s Office complied with his initial records request.
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 its 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 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 28th day of March, 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TERRY MITCHELL, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 17-08
By this appeal, Petitioner, Terry Mitchell, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On September 30, 2016, Ms. Mitchell made a request for records from the Utah Attorney General’s Office (“AG’s Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Mitchell requested any and all communications related to her report of a “child sexual abuse…regarding Chief Justice Judge Richard Roberts.” Ms. Mitchell also requested “all documentation, communication, emails, minutes, phone calls, meetings, correspondence of any kind, on and off record” regarding herself and Judge Roberts. Judge Roberts at the time of the complaint being filed was the Chief Judge of the United States District Court for the District of Columbia. Subsequent to the filing of the complaint, Judge Roberts voluntarily retired as a U.S. District Court Judge.
In a letter dated December 9, 2016, Lonny Pehrson, Assistant Attorney General and Government Records Counsel for the AG’s Office, denied Ms. Mitchell’s records request. Mr. Pehrson stated that “there is still an ongoing judicial misconduct proceeding in the United States Court of Appeals for the Tenth Circuit regarding your allegations against Judge Roberts” and therefore, the records had been classified as protected records pursuant to Utah Code § 63G-2-305(10). Mr. Pehrson added that “once the proceedings against Judge Roberts have concluded it may be possible to reclassify the records for release.”
In a letter dated January 6, 2017, Ms. Mitchell filed an appeal with Sean D. Reyes, Utah Attorney General. Parker Douglas, General Counsel for the AG’s Office responded to Ms. Mitchell’s appeal in a letter dated January 13, 2017. Mr. Douglas stated that records that had been previously classified as public records and had been publicly disseminated are not protected records, and agreed to grant Ms. Mitchell’s appeal for release of those records. However regarding the release of the other records, Mr. Douglas affirmed Mr. Pehrson’s decision denying access to the records.
Ms. Mitchell filed an appeal with the State Records Committee (“Committee”), and on February 9, 2017, the Committee held a hearing regarding the appeal. The Committee, having reviewed the arguments submitted by the parties, and having heard 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 §63G-2-201(2). Records to which access is restricted pursuant to court rule, federal statute, or federal regulation, are not public records. Utah Code § 63G-2-201(3)(b). The disclosure of a record to which access is governed or limited pursuant to court rule, federal statute, or federal regulation, is governed by the specific provisions of that statute, rule, or regulation. Utah Code § 63G-2-201(6)(a). GRAMA applies to records described in -201(6)(a) insofar as GRAMA is not inconsistent with the statute, rule, or regulation. Utah Code § 63G-2-201(6)(b).
2. The Federal Judicial Conduct and Disability Act states that “all papers, documents, and records of proceedings related to investigations conducted under [Chapter 16-Complaints Against Judges and Judicial Discipline] shall be confidential and shall not be disclosed by any person.” 28 U.S.C. § 360(a).
3. Mr. Pehrson, legal counsel for the AG’s Office, stated that the AG’s Office filed a judicial misconduct complaint against Judge Roberts in United States District Court for the District of Utah. On March 18, 2016, the United States Court of Appeals for the District of Columbia Circuit dismissed the judicial misconduct complaint based upon Judge Roberts’ retirement. The AG’s Office filed an appeal for a rehearing of the decision dismissing the judicial misconduct complaint with the Chief Justice John Roberts Jr. of the United States Supreme Court. In May 2016, Justice Roberts remanded the judicial misconduct complaint to a committee of judges of the United States Court of Appeals for the 10th Circuit for further proceedings. At the time of this GRAMA appeal, the judicial misconduct complaint is still currently being investigated by the 10th Circuit Court of Appeals.
4. After having reviewed all arguments and evidence, the Committee finds that the records are not public records pursuant to Utah Code §§ 63G-2-201(3)(b) and -201(6). The records are related to an investigation of former Judge Richard Roberts and with the investigation proceedings continuing before the 10th Circuit Court of Appeals, 28 U.S.C. § 360(a) applies to the records. Accordingly, “all papers, documents, and records of proceedings related to investigations…shall be confidential and shall not be disclosed by any person.” Although the Committee is very sympathetic to Ms. Mitchell’s request for the records, the Committee is refrained by the Federal Judicial Conduct and Disability Act that prohibits disclosure of these records by the Utah AG’s Office. While GRAMA provides a provision that allows the Committee to release properly classified records that it determines that the “public interest favoring access is greater than or equal to the interest favoring restriction of access” (See, Utah Code § 63G-2-403(11)(b), Federal Law provides no such provision allowing release of the subject records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Terry Mitchell, is hereby DENIED.
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 its 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 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 21st day of February 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROGER BRYNER, Petitioner, v.
CLEARFIELD CITY. Respondent.
DECISION AND ORDER
Case No. 16-39
By this appeal, Petitioner, Roger Bryner, seeks access to records allegedly held by Respondent, Clearfield City.
FACTS
This matter was scheduled for a hearing on October 13, 2016. The State Records Committee was provided with redacted and un-redacted copies of records, which both parties requested be reviewed by the State Records Committee in camera. Due to the volume of records and the time needed for such review the parties agreed to have this matter continued to November 10, 2016. Accordingly, IT IS ORDERED THAT:
ORDER
The hearing is CONTINUED to November 10, 2016.
Entered this 24th day of October 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD,
Chairperson, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UTAH RIVERS COUNCIL, Petitioner, v.
WASHINGTON COUNTY WATER CONSERVANCY DISTRICT. Respondent.
DECISION AND ORDER
Case No. 16-12
By this appeal, Petitioner, the Utah Rivers Council, seeks access to records allegedly held by Respondent, Washington County Water Conservancy District.
FACTS
On or about December 18, 2015, Zachary Frankel, Executive Director of Utah Rivers Council, made a records request to the Washington County Water Conservancy District (“Respondent”), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Frankel requested records regarding the repayment plan presented by Applied Analysis on November 21, 2013, for the Lake Powell Pipeline Project. Respondent denied Mr. Frankel’s request, indicating that it did not maintain the records. Mr. Frankel appealed the decision to Ron Thompson, General Manager for Respondent. After reviewing Mr. Frankel’s records request, Mr. Thompson, upheld the denial of the request.
Mr. Frankel filed an appeal with the State Records Committee (“Committee”), claiming that the Respondent does have a repayment plan. On April 14, 2016, the Committee held a hearing and heard oral arguments from the parties. During the hearing, it was determined that Applied Analysis, an entity with which the Respondent has contractual relationship, has a record that is responsive to the Petition’s records request. During the hearing, the Committee determined it would need to review the contractual agreement between Respondent and Applied Analysis, in order to determine whether the Respondent maintains the requested record. The Committee voted unanimously to continue the hearing to a later date in order to allow Respondent to provide to the Executive Secretary a copy of the contract for the Committee to review. Neither party objected to the continuance. Accordingly, IT IS ORDERED THAT:
ORDER
The hearing is CONTINUED to a later date to allow the Committee to review the disputed records. Pursuant to Utah Code § 63G-2-403(9) and Utah Admin. Code R. 35-1-2(6), Respondent is ordered to provide the records to the Executive Secretary for the Committee, who will secure the records at the State Archives Building to allow an in camera review of the records by the Committee members.
Entered this 25th day of April 2016.
BY THE STATE RECORDS COMMITTEE
____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DANIEL ORTIZ, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 16-25
By this appeal, Petitioner, Daniel Ortiz, seeks access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On or about February 12, 2016, Mr. Ortiz made a records request to Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Ortiz requested “[a]ny and all Incident Reports, including contacts, Narratives and Supplemental on my Record File, and on O-Track." In addition to the records request, Mr. Ortiz requested a fee waiver solely on the grounds that he is subject of the requested records.
On or about February 16, 2016, Jeralyn Zimmerman responded to Mr. Ortiz on behalf of Corrections, denying the fee waiver on the grounds that Mr. Ortiz was not indigent. Mr. Ortiz appealed the denial of the fee waiver, and on March 14, 2016, Deputy Director Mike Haddon responded to Mr. Ortiz's appeal, upholding the denial of the fee waiver request.
Mr. Ortiz filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on July 14, 2016, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA states that every 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 “subject to Sections 63G-2-203 and 63G-2-204.” Utah Code § 63G-2-201(1).
2. Utah Code § 63G-2-203(1) states that a governmental entity may charge a “reasonable fee to cover the governmental entity’s cost of providing a record.” Actual costs may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing or tailoring the record into an organization to meet the person’s request, and the cost of staff time for search, retrieval, and other direct administrative costs for complying with the request. See, Utah Code § 63G-2-203(2)(a)(i) & (ii).
3. A governmental entity “may fulfill a record request” without charge and is encouraged to do so when it determines that: (1) The individual requesting the record is the subject of the record; or (2) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(b) & (c).
4. Corrections presented evidence from Gina Proctor, a records officer for Corrections. Ms. Proctor explained that an inmate is not considered indigent unless the inmate’s account balance falls below $9.00 for 45 consecutive days. Ms. Proctor went on to explain the appraisal process for applying fee waivers when the inmate is the subject of the record. For example, she explained that the fees are typically waived for medical records, because inmates have a constitutional right to adequate medical care. Conversely, she explained that fees are not typically waived for incident reports, such as those sought by Mr. Ortiz because they do not rise to the same level or criticality as medical and financial records.
5. The standard of review for the Committee is to determine whether Corrections’ decision denying Mr. Ortiz’s request for a fee waiver was an “unreasonable denial of a fee waiver.” See, Utah Code § 63G-2-203(6)(a). After reviewing the arguments of the parties and the subject matter of the requested documents, and considering the reasoning used by Corrections to deny the fee waiver request, the Committee finds that Corrections’ decision to deny Mr. Ortiz’s fee waiver request was not an unreasonable denial.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Daniel Ortiz, is DENIED.
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 its 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 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 26th day of July 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ALEX STUCKEY on behalf of SALT LAKE TRIBUNE, Petitioner, v.
CEDAR CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 16-41
By this appeal, Petitioner, Alex Stuckey, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Cedar City Police Department (“Department”).
FACTS
On June 10, 2016, Ms. Stuckey filed a request for records from the Department pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Stuckey requested, “any police reports or investigation records” that mentioned a specified individual “from 2010 to present.” In a letter dated June 14, 2016, the records clerk for the Department stated that the only records that existed had been classified as private records pursuant to Utah Code § 63G-2-302(2)(d).
Ms. Stuckey filed an appeal with the Department’s chief administrative officer on June 23, 2016. When no response was given, Petitioner considered the non-response to be the equivalent of a determination denying access to the record as outlined in Utah Code § 63G-2-403(1)(b), and filed an appeal with the Committee. On October 13, 2016, a hearing was before the State Records Committee (“Committee”), where the parties were allowed to present their legal arguments. After considering all arguments by the parties, the Committee now 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Initial contact reports are normally public to the extent that GRAMA expressly exempts them from disclosure under Utah Code §§ 63G-2-201(3)(b), -302, -304, or -305. Utah Code § 63G-2-301(3)(g). Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
3. Darin M. Adams, the Chief of Police for the Department, stated in a letter dated September 27, 2016, written to the Committee, that Ms. Stuckey already had a copy of a police report involving the specified individual, but the name of the individual was redacted from the report. Chief Adams stated that the redactions were made “for the sole purpose of protecting a citizen’s privacy.” Ms. Stuckey argued that the Department had already released the name of the specified individual in another record.
4. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the police record responsive to Petitioner’s request is a public record pursuant to Utah Code § 63G-2-301(3)(g). The Department had essentially already disclosed the identity of the specified individual by providing a redacted police report to Petitioner that was responsive to the records request that was for a police report that named the specified individual and no others. Further, the Department disclosed the identity of the specified individual in its written statement to the Committee, which is required to also be delivered to the Petitioner. A governmental entity cannot thereafter claim that release of an individual’s name as part of a record is a “clearly unwarranted invasion of personal privacy” when the governmental entity has already released that person’s name in another record.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Alex Stuckey, is GRANTED.
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 its 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 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 24th day of May 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARK SHENEFELT on behalf of STANDARD-EXAMINER, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 17-07
By this appeal, Petitioner, Mark Shenefelt, reporter for the Standard-Examiner, seeks access to copies of audio and video records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On November 23, 2016, Mr. Shenefelt made a request from the Utah Attorney General’s Office (“AG’s Office”) for copies of audio and video surveillance records for alleged offenses occurring in October and November 2016 involving three named individuals. Mr. Shenefelt stated that release of the records would benefit the public because it involved “[n]ews coverage of felony crimes in Weber County.”
In a letter dated December 8, 2016, Lonny Pehrson, Assistant Attorney General and Government Records Counsel for the AG’s Office, denied the request pursuant to Utah Code § 63G-2-305(10). Mr. Shenefelt filed an appeal of the decision and in a letter dated December 19, 2016, Parker Douglas, General Counsel for the AG’s Office, denied the appeal.
On December 23, 2016, Mr. Shenefelt filed an appeal on behalf of the Standard-Examiner with the State Records Committee (“Committee”). On February 9, 2017, the Committee held a hearing regarding the appeal. The Committee, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Utah 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Records created or maintained for criminal enforcement purposes are protected records if properly classified and if release of the records “reasonably could be expected to disclose the identity of a source who is not generally known outside of government.” Utah Code § 63G-2-305(10)(d).
3. Nathan Mutter, a criminal investigator with the AG’s Office, testified that any release of the information from the records “could help lead to the identification of our source.” He also testified that release of the records could put the safety of the confidential source at risk because of the violent history of some of the individuals involved in the criminal case.
4. After having reviewed all arguments and evidence, the Committee finds that the records are protected records pursuant to Utah Code §§ 63G-2-305(10)(d). The Committee is persuaded by the testimony and arguments made that release of the audio and video records reasonably could disclose the identity of a source who is not generally known outside of government.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Shenefelt, on behalf of the Standard-Examiner, is hereby DENIED.
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 its 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 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 21st day of February 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UNIVERSITY OF UTAH, MEDICAL CENTER. Respondent.
DECISION AND ORDER
Case No. 16-28
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, the University of Utah, Medical Center.
FACTS
On January 11, 2016, Mr. Sullivan made a records request to the University of Utah, Medical Center ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested emails sent and received by various health providers where Mr. Sullivan was the subject; and various medical records (consultation reports, x-ray reports, office visit reports, and EMG/nerve conduction study reports).
Mr. Sullivan made an additional request on January 18, 2016, for emails sent and received by various health providers where Mr. Sullivan is the subject; medical records (consultations and x-ray reports; and "names of all orthopedic surgeons/residents who worked the Prison Telemed Clinic on September 22, 2014." Mr. Sullivan made a third request on or about April 16, 2016, pursuant to GRAMA for emails sent and received by Kelley Marsden and/or Ashley Holje where Mr. Sullivan's name is contained in the body or the subject of the email.
Respondent denied a portion of the requests above indicating that certain records do not exist. Respondent also sent Mr. Sullivan a letter on or about May 3, 2016, indicating that he needed to make an advanced payment of estimated costs in the amount of $107.90 for the remaining records. Mr. Sullivan appealed the denials stating that the records should exist pursuant to Respondent's retention schedules, and also appealed the fee indicating that the Respondent unreasonably denied the fee waiver request. On or about May 20, 2016, Gregory C. Thompson, Appeals Officer, responded to Mr. Sullivan that the fee was reasonable, and denied the fee waiver. Mr. Sullivan filed an appeal with the State Records Committee (“Committee”).
On June 9, 2016, the State Records Committee (“Committee”) held a hearing regarding Mr. Sullivan’s appeal. Mr. Sullivan was unable to attend the hearing due to circumstances out of his control. The Committee unanimously voted that the matter should be continued to a later date. See, Sullivan v. University of Utah, Medical Center, State Records Committee Order No. 16-22 (June 9, 2016). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on August 11, 2016, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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 subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). Utah Code § 63G-2-203(1) provides that a governmental entity “may charge a reasonable fee to cover the governmental entity’s cost of providing a record.”
2. A governmental entity “may fulfill a record request” without charge and is encouraged to do so when it determines that: (1) The individual requesting the record is the subject of the record; or (2) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(b) & (c).
3. The standard of review for the Committee is to determine whether Respondent’s decision denying Mr. Sullivan’s request for a fee waiver was an “unreasonable denial of a fee waiver.” See, Utah Code § 63G-2-203(6)(a). The cost associated with providing the records was $107.90, and there was insufficient evidence supporting a finding that Mr. Sullivan was qualified for a fee waiver based upon impecuniosity. After reviewing the arguments of the parties and the subject matter of the requested documents, and considering the reasoning used by Respondent to deny the fee waiver request, the Committee finds that the decision to deny Mr. Sullivan’s fee waiver request was not an unreasonable denial.
4. Regarding Mr. Sullivan’s request for emails, the Committee is persuaded by the testimony presented by Respondent that no records were found that were responsive to Mr. Sullivan’s request during Respondent’s search. Although evidence was presented that some records may have existed based upon Respondent’s retention schedule, the Committee cannot order a governmental entity to produce records without a finding that the records actually exist. Accordingly, the Committee recommends that Respondent review its retention schedule with employees to ensure that all documents are kept during the time they should be retained.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is hereby DENIED as detailed above.
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 its 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 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 22nd day of August 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROGER BRYNER, Petitioner, v.
CLEARFIELD CITY. Respondent.
DECISION AND ORDER
Case No. 16-38
By this appeal, Petitioner, Roger Bryner, seeks access to records allegedly held by Respondent, Clearfield City.
FACTS
This matter was scheduled for a hearing on September 8, 2016. However, due to: (1) The high number of hearings that were also scheduled to be heard that day; (2) The potential unavailability of Mr. Bryner to attend the hearing by telephone; and (3) A potential conflict of interest for assigned counsel for the State Records Committee to provide legal counsel concerning some of the requested records, the Committee voted unanimously to continue the hearing to the next scheduled Committee hearing on October 13, 2016.
Accordingly, IT IS ORDERED THAT:
ORDER
The hearing is CONTINUED to October 13, 2016.
Entered this 19th day of September 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD,
Chairperson, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
AMERICAN CIVIL LIBERTIES UNION, Petitioner, v.
SALT LAKE COUNTY DISTRICT ATTORNEY and SALT LAKE CITY POLICE DEPARTMENT. Respondents.
DECISION AND ORDER
Case No. 17-02
By this appeal, Petitioner, the American Civil Liberties Union, seeks access to records held by Respondents, Salt Lake County District Attorney and the Salt Lake City Police Department.
FACTS
On February 27, 2016, a shooting incident occurred involving Abdi Mohamed and police officers with the Salt Lake City Police Department (“Department”). In a letter dated May 12, 2016, the American Civil Liberties Union (“ACLU”), filed a records request pursuant to the Government Records Access and Management Act (“GRAMA”) with the Department. The records request included a request for copies of “[b]ody camera footage” and “[o]ther video footage of the Incident and area, including but not limited to dash-cam and/or surveillance video.” The ACLU made the same records request to the Salt Lake County District Attorney (“D.A.”) in a second letter also dated May 12, 2016.
In a letter dated June 11, 2016, Darcy M. Goddard, a Deputy District Attorney and Chief Policy Advisor for the D.A., provided a joint response for the Department and the D.A. Ms. Goddard wrote that releasing the body camera footage “could be expected to interfere with our investigation and might deprive an individual (whether the juvenile, an officer, or someone else) of the right to a fair trial.”
The ACLU filed an appeal with the Chief Administrative Officer for GRAMA Appeals for Salt Lake County (“County”) with a letter dated July 7, 2016, arguing that the County’s refusal to release the withheld records should be reversed. The ACLU also filed an appeal with the Salt Lake City Recorder with a nearly identical letter dated July 7, 2016. The parties agreed to stay the Salt Lake City (“City”) appeal proceedings pending County’s more extensive appeal procedure.
In a letter dated July 15, 2016, Sarah Brenna, Chief Administrative Officer for Appeals for the County, denied the ACLU’s appeal stating that the ACLU had a right to appeal the decision to the Salt Lake County Appeals Board (“County Appeals Board”). In a letter dated August 18, 2016, Ms. Goddard issued a supplemental response to her June 11, 2016, letter, writing that the “body camera footage, surveillance camera footage…are not subject to release at this time” based upon Utah Code § 63G-2-305(10). Ms. Goddard stated that release of “material evidence in a criminal case, particularly when the evidence relates to a matter pending in juvenile court” would “undermine” the criminal case and create a danger of depriving a person of a right to a fair trial.
In a letter dated August 31, 2016, the ACLU filed an appeal with the County Appeals Board. On September 14, 2016, the City petitioned to intervene with the appeal and the petition was granted. After a hearing was held on October 18, 2016, the County Appeals Board issued a Decision and Order dated October 25, 2016. The County Appeals Board affirmed the denial of ACLU’s appeal to the Salt Lake County Chief Administrative Officer of Appeals, stating:
Releasing the photographs and/or body camera footage and/or surveillance videos could interfere with the pending criminal proceeding and could endanger the Juvenile’s right to a fair trial. The Board feels strongly that protecting material evidence in this pending criminal proceeding, which could interfere with the proceeding if it were released; and, protecting the Juvenile’s rights and not burdening his ability to a fair trial outweighs the public’s right to the information.
In a letter dated October 28, 2016, the Chief Administrative Officer for the City wrote that the City “joins in the decision by the County Appeals Board and denies the ACLU’s appeal.”
The ACLU filed an appeal of the October 25, 2016, County Appeals Board decision, and the City’s October 28, 2016, decision through a letter dated November 22, 2016. On January 12, 2017, a hearing was before the Utah State Record Committee (“Committee”) where the ACLU, the D.A.’s Office, and the Department were allowed to present their legal arguments. After considering all written materials and the arguments by the parties, and reviewing the records in camera, the Committee 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 § 63G-2-201(2). Records that are private, controlled, or protected under Utah Code §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Records created or maintained for criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the record: (1) Reasonably could be expected to interfere with enforcement proceedings; or (2) Would create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(b) & (c).
3. Respondents argued that the disputed records depict an alleged suspect engaging in criminal conduct, which if made public, would deprive him of a right to a fair trial or an impartial hearing because the records “substantially impeach[] his credibility should he testify as a witness.”
4. The ACLU argued that there is a great public interest in “police-involved shootings of young black men” leading to a “crisis of confidence in law enforcement.” The ACLU contended that allowing the public “to see for themselves whether law enforcement use of lethal force is truly justified [would] prevent destructive protests and violence in its aftermath.” The ACLU provided numerous court case citations in their written materials submitted to the Committee concerning the allowance of information concerning a criminal trial being released prior to the trial without negatively affecting the rights of an accused to have a fair trial.
5. The Committee reviewed two body camera videos, two surveillance videos, and crime scene photographs in camera, and determined that records should be classified as public records. The Committee held that the release of the records would not reasonably interfere with enforcement proceedings or create a danger of depriving a person of a right to a fair trial or an impartial hearing. The Committee further cited the governmental entity’s public release of the written detailed report of the body camera footage from the Citizen Review Board as additional support for this finding. See, Utah Code § 63G-2-305(10)(b) & (c). Additionally, even if the records had been properly classified by Respondents as protected records, the public interest favoring access to the records is greater than the interest favoring restriction to access. See, Utah Code § 63G-2-403(11)(b); Utah Dept. of Pub. Safety v. Vanocur, Utah Third Judicial Dist. Case No. 100904439 (June 17, 2010).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, the American Civil Liberties Union is GRANTED.
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 its 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 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 24th day of January 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
UTAH DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.
DECISION AND ORDER
Case No. 17-21
By this appeal, Petitioner, Paul Amann, seeks access to records allegedly held by Respondent, the Utah Department of Human Resource Management (“DHRM”).
FACTS
On or about February 25, 2017, Mr. Amann filed four requests for records from DHRM pursuant to the Government Records Access and Management Act (“GRAMA”). In a letter dated March 21, 2017, Debbie Cragun, Executive Director for DHRM, disclosed some documents to Mr. Amann, but denied Mr. Amann’s request for some documents finding that they were non-public or were not considered “records” as defined by Utah Code § 63G-2-103(22). Mr. Amann filed an appeal of the decision and in, a letter dated April 26, 2017, Ms. Cragun upheld DHRM’s partial denial of his records request.
Mr. Amann filed an appeal with the Committee, and on June 8, 2017, a hearing was before the State Records Committee (“Committee”), where the parties were allowed to present their legal arguments. A motion was made by a Committee member to review the disputed records in camera. After a determination that the volume of records would make it difficult for the Committee to review the records during the hearing, the Committee voted unanimously to continue the hearing to a later date. Neither party objected to the continuance. Accordingly, IT IS ORDERED THAT:
ORDER
The hearing is CONTINUED to a later date to allow the Committee to properly review the disputed records. Pursuant to Utah Code § 63G-2-403(9) and Utah Admin. Code R. 35-1-2(6), Respondent is ordered to provide the records to the Executive Secretary for the Committee, who will secure the records at the State Archives Building to allow an in camera review of the records by the Committee members.
Entered this 19th day of June 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SAM STECKLOW, Petitioner, v.
CITY OF COTTONWOOD HEIGHTS, Respondent.
DECISION AND ORDER
Case No. 21-27
By this appeal, Petitioner, Sam Stecklow, seeks access to records held by Respondent, the City of Cottonwood Heights.
FACTS
On December 29, 2020, Petitioner, Sam Stecklow, a journalist with the Salt Lake Tribune, filed a GRAMA request with Respondent, “seeking its internal investigatory records regarding three shootings involving officers of its police department.” On January 6, 2021, Respondent notified Mr. Stecklow that his GRAMA request was denied in full. On January 7, 2021, Mr. Stecklow filed an appeal with the Respondent’s Chief Administrative Officer (“CAO”). The CAO granted the appeal but did not release the officers’ “Garrity” statements.
On February 17, 2021, Mr. Stecklow filed an appeal with the Utah State Records Committee (“Committee”), seeking access to the withheld Garrity statements. On April 8, 2021, legal counsel for Officer Chris McHugh filed a request for intervention pursuant to Utah Code § 63G-2-403(6)(a) which was granted by the Committee. The Committee held an electronic hearing on April 29, 2021 where the three parties were allowed to present their arguments. After carefully considering the arguments from all parties, the Committee 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 § 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 “Garrity” warning assures officers that their statements given in a disciplinary interview will not be used against them in a subsequent criminal prosecution. Macfarlane v. Career Serv. Review Office, 2019 UT App 133, ¶14, 450 P.3d 87, 92, following Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616 (1967). An officer who refuses to respond or fails to respond truthfully to questions after receiving a Garrity warning is subject to suspension or revocation of his or her POST certification. Macfarlane, ¶14, 450 P.3d at 92, following Utah Code § 53-6-211(1)(e) (2015). Under POST guidelines, if an officer is untruthful in an interview after receiving a Garrity warning, the officer’s certification may be revoked. Id.
3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
4. Records concerning a current or former employee of a governmental entity including performance evaluations and personal status information, are generally private if properly classified by a governmental entity but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o). Utah Code § 63G-2-302(2)(a). Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental employee are normally public if: (1) The disciplinary action has been completed and all time periods for administrative appeal have expired; and (2) The charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o).
5. In Lawrence v. Utah Dept. of Pub. Safety, Utah 3rd Dist. Case No. 120907748 (Aug. 21, 2013), the district court found that:
[T]he public’s right to know the response of public officials charged with the responsibility of investigating alleged constitutional violations substantially exceeds any individual interests of those public officials or the interest of a Trooper charged with the responsibility protecting the safety and rights of the State’s citizens. [Lawrence, at pg. 3.]
The court further stated that “the records reveal whether public officials properly discharged their public responsibility to investigate and address allegations that law enforcement personnel violated a citizen’s constitutional rights.” Id.
6. In the present case, counsel for Respondent argued that even if Lawrence is a correct statement of applicable law, it does not “necessarily address all the legal issues that are involved in this matter.” Counsel further argued that “providing free public access to Garrity statements would be a chilling effect on obtaining statements of involved officers and even witness officers in internal affairs investigations.” Counsel argued that the statements are non-public pursuant to Utah Code §§ 63G-2-302(2)(a) & -302(2)(d).
7. After having reviewed the records in camera and considering the evidence and arguments presented by the parties, the Committee finds that requested records should be classified as public records. The Garrity statements by the officers were made through the conduct of official business, and therefore should not be considered private personnel records pursuant to Utah Code § 63G-2-302(2)(a). Although an investigation could by its nature be expected to invade privacy, “GRAMA’s private and protected classification of records that ‘constitute[] a clearly unwarranted invasion of personal privacy’ does not sanction denying access to a record merely because it invades personal privacy.” Deseret News Pub. Co. v. Salt Lake Cty.¸182 P.3d 372, 380 (2008 Utah) ¶30. To qualify for nonpublic classification, a record must not only invade personal privacy, it must do so in a “clearly unwarranted” manner. Id. Simply because officers are required to participate in Garrity interviews, their privacy interests do not rise to the level of a “clearly unwarranted invasion” of personal privacy because they are public officials with public responsibilities subject to public oversight. Even if weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, based upon the district court decision in Lawrence, the records would be made public because the public’s right to know “substantially exceeds” individual interests of public officials or police officers. Accordingly, the Committee finds that Respondent’s classification of the officers’ Garrity statements as non-public to be incorrect and find that they should be classified as public records pursuant to Deseret News, Lawrence, and Utah Code § 63G-2-201(2).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sam Stecklow, is hereby GRANTED.
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.
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).
Entered this 10th day of May 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TYLER WINTERTON, Petitioner, v.
UTAH STATE TAX COMMISSION, Respondent,
DECISION AND ORDER
Case No. 24-42
By this appeal, Tyler Winterton (“Petitioner”), requests records allegedly held by the Utah State Tax Commission (“Respondent”).
FACTS
On November 1, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested “[a] list of all names and mailing addresses of business (non-individual) taxpayers that the Utah State Tax Commission has initiated sales or use tax audit proceedings against in the years 2022 or 2023.” The Respondent denied the request on the grounds that all tax returns and return information collected are classified as private or protected under GRAMA, and they are also held confidential under Utah Code § 59-1-403 and § 59-12-109.
Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”) on November 18, 2023, who affirmed the denial. Petitioner then appealed the CAO’s decision to the State Records Committee (“Committee”).
On May 16, 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 the 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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 to which access is restricted pursuant to another state statute is not a public record. Utah Code § 63G-2-201(3)(b). If a record is governed by another statute, then GRAMA instructs us to defer to the disclosure provisions of that statute when it conflicts with GRAMA. Utah Code § 63G-2-10&(1)(a).
Here, Petitioner requests only the business name and mailing address of companies that have been audited for sales or use tax in 2022 through 2023. To determine if a business name and its mailing address may be disclosed, we look at Section 59-1-403. There, the Code states that neither the tax commissioner, nor any agent, clerk, officer, or employee of the tax commission, may “divulge or make known in any manner any information gained by that person from any return filed with the commission.” Utah Code § 59-1-403(2)(a) (emphasis added). The words “any information” are obviously quire broad, and from the plain language of the statute applies to information “gained” from a return filed. Thus, the statute doesn’t refer to information filed, such as financial information, but any information that can be obtained from a filing. Since a business name and address can be obtained from a tax return filed with the commission, we conclude that such information is contemplated by the statute and cannot be divulged.
To be sure, we examine Subsection 59-1-403(4), which carves out 30 exceptions to the general restriction on divulging information gained from filed tax returns. There, we see that the “name” and “address” on resident returns may be divulged to a “state court administrator” upon request. Utah Code § 59-1-403(4)(m)(i). Additionally, an “unclaimed property administrator,” as that term is defined in Section 67—4a-102, may also receive the “name” and “address” on certain returns upon its request. Utah Code § 59-1-403(bb)(ii). And, finally, the “name” on a return may be divulged to a “program manager of the Utah Fits All Scholarship Program” under certain conditions. Utah Code § 59-1-403(cc)(ii). Importantly, the Code also allows the Governor’s Office of Economic Opportunity (“GOEO”) to obtain income tax information, but the “name” and “address” must be redacted. Utah Code § 59-1-403(4)(n)(ii)-(iii).
These carveouts illustrate that the Code contemplates certain and limited situations in which the names and addresses on returns may be disclosed. The Code also expressly states that even when other tax information is shared with GOEO, names and addresses must be withheld. Together, these provisions strongly support the notion that names and addresses are generally confidential, and the only time they may be revealed is under the specific situations listed under Subsection 403(4). Because a private individual’s public record request is not among the enumerated exceptions, we can definitively conclude that the names and addresses obtained from tax returns may not be divulged.
In reviewing the rest of Section 403, we see no provisions that invoke or address GRAMA’s applicability to the records Petitioner seeks. Thus, we are left to conclude that GRAMA does not apply here. Therefore, because Subsection 63G-2-107(1) provides that GRAMA gives way to another governing statute when the other statute governs access and conflicts with GRAMA, we find that we cannot revert to GRAMA’s protective classifications and apply them to the records, nor can we balance the interests and weigh disclosure pursuant to Utah Code § 63G-2-403(11)(b). Section 59-1-403 alone controls the records at issue, and, according to its provisions, they may not be disclosed.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 24 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Williams, K., Cornwall, M., Biehler, E., Buchanan, M., 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LIONEL TREPANIER, on behalf of the Green Party of Utah, Petitioner, v.
LIEUTENANT GOVERNOR, Respondent,
DECISION AND ORDER
Case No. 24-59
By this appeal, Lionel Trepanier, on behalf of the Green Party of Utah (“Petitioner”), requests a fee waiver and records allegedly held by Lieutenant Governor (“Respondent”).
FACTS
Petitioner sits as a member of the coordinating committee for the Green Party of Utah. As the general election draws near, the Green Party desired voter registration records showing who, among registered voters, are affiliated with its party. On June 24, 2024, Petitioner, on behalf of the party, submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner’s request stated: “We request a copy of your current list of Utah voters who are registered as Green Party of Utah voters.”
On June 24, 2024, Collin Tanner, records officer for Respondent, responded to Petitioner’s request for the list and informed him that the Lieutenant Governor’s Office (“LGO”) offers a copy of the Voter Registration Database for a fee of $1,050.00, as allowed by Utah Code 63G-2-203(10) and 20A-2-104(3)(d), along with instructions on how to request the database.
Petitioner submitted an appeal on June 24, 2024, challenging the denial of the fee waiver request. However, the appeal was submitted to the Respondent's Chief of Staff and not the chief administrative officer (“CAO”), so the request went unanswered. Petitioner appealed to the State Records Committee (“Committee”) on July 22, 2024. The Committee’s secretary instructed him that the appropriate method of appeal was not followed and to first appeal the denial to the Respondent’s CAO. Petitioner then proceeded to email an expedited appeal to the Respondent’s CAO on July 31, 2024, requesting that the fee waiver be granted. The CAO responded to the appeal on the same day and upheld the fee.
Petitioner appealed the CAO’s decision to the Committee. On August 15, 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 denial of the fee waiver was appropriate.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, the right to a copy is not without its checks. Most governmental entities may charge “a reasonable fee to cover the governmental entity’s actual cost of providing a record.” Utah Code § 63G-2-203(1)(a).
However, as the Respondent points out, the applicability of Section 203 is questionable. Section 704 of GRAMA expressly states that certain sections of GRAMA are inapplicable to the Respondent, among them, Section 203. In pertinent part, Section 704 reads: “The governor, the office of the governor, the lieutenant governor, and the office of the lieutenant governor are not subject to: (i) Section 63G-2-203; . . .” Utah Code § 63G-2-704(2)(a). Thus, according to the statute, if Section 704 applies, then Section 203 does not. And since Section 203 grants governmental entities the statutory authority to charge fees for record requests, then, logically, the Respondent wouldn’t have the authority to charge fees at all.
But oddly, Section 203 itself also provides governance over the lieutenant governor’s authority to assess fees:
(b) The lieutenant governor shall:
(i) after consultation with county clerks, establish uniform fees for voter registration and voter history records that meet the requirements of this section; and
(ii) obtain legislative approval of those fees by following the procedures and requirements of Section 63J-1-504.
Utah Code § 63G-2-203(10)(b)(i)-(ii) (emphasis added). Thus, while Section 704 says that Section 203 doesn’t apply to the Respondent, Section 203 states the opposite and that its fees must comport with the requirements of that section. We are left with a muddy proposition: Either Section 203 applies to the lieutenant governor or it doesn’t.
But the Respondent points us to the Election Code for further guidance on whether it can assess fees for voter registration records. There the law provides: “The lieutenant governor and the county clerks may charge the fees established under the authority of Subsection 63G-2-203(10) to individuals who wish to obtain a copy of the list of registered voters.”[1] Utah Code § 20A-2-104(3)(d). There again the Code references Section 203 as the authority over the lieutenant governor’s fee schedule for records.
By saying that the lieutenant governor “may charge” the fees established under Section 203, the Election Code clearly grants discretion to do so. That discretion raises questions: What is the check on the propriety of that discretion? What if the fee is unreasonably excessive, arbitrary, or discriminatory? This vacuum of unqualified discretion the Election Code grants leads us to conclude that, because Subsection 104(3)(d) expressly invokes GRAMA’s Subsection 203(10), and Subsection 203(10) expressly states that those fees must “meet the requirements of this section,” then the standard of reasonableness embedded in Section 203 applies to the Respondent’s discretion to charge a fee for voter registration records. See Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52 (in reviewing a governmental entity’s fee waiver denial, “the ultimate question is not whether the entity abused its discretion, but whether its decision was reasonable.”). As the Respondent desires to assess a fee, we find that even if GRAMA’s Section 704 didn’t govern here and the Respondent did have the authority under Section 203 to charge a fee, for the following reasons, the decision to charge a fee to Petitioner was still unreasonable.
Here, the Green Party of Utah is comprised of a small number of members, likely only a few thousand. As a small party, Petitioner testified that its budget is quite limited and that it cannot afford to pay the fee that the Respondent charged. Petitioner seeks the registration records so that it can contact its members and further its party’s interests, especially as the general election creeps closer.
On the other hand, the Respondent argues that its voter registration database cannot filter out registration records by party, and that it produces only one large file of all voter registrants. However, when the Committee questioned the Respondent about the database, the file type it delivers for such requests, and other possible methods of extracting subsets from the data requested, the Respondent couldn’t offer any answers. We find it troubling that a governmental entity appears before us after charging a requester over a thousand dollars for records and is ill-prepared or not equipped to answer questions about how those records are derived, delivered, and what would be required to filter them into a responsive format. Because we couldn’t obtain answers to such questions, we’re left to question the veracity of the generalized argument that voter registration records cannot be filtered by party in an effort to bring down the cost of producing voter registration records.
But even if the records truly could not be filtered, we still see the facts for exactly what they are: a small political party that has nowhere near the funding of the State’s mainstream Republican and Democrat parties desiring only the records of its members so that it can contact them and actively participate in the State’s political process this election season. We find those interests to be very strong and believe it to be unreasonable that the Respondent would deny the party that privilege on account of a significantly high fee that the small party simply cannot afford. This is contrary to GRAMA.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED. The fee is unreasonable and if the data cannot be filtered into a subset of only Green Party registrants, then the Respondent must deliver the full dataset and waive the fee.
It is so ordered.
Entered this 26 day of August 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., chair pro tem, Buchanan, M., Dubovik, N., and Peterson, L. voted in favor of and joined in this Decision and Order.
Committee members Williams, K. and Biehler, E. voted in opposition.
enclosed: 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).
1. We note that the statute specifically pertains to “individuals,” not “persons.” Petitioner is not requesting the records for himself but for the Green Party of Utah, which is not an “individual.” While the Election Code doesn’t define “individual,” GRAMA defines it as “a human being.” Utah Code § 63G-2-103(13). This raises the question of whether the lieutenant governor could assess a fee against a political organization or party.
",Granted,2024-08-26T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
COTTONWOOD HEIGHTS, Respondent,
DECISION AND ORDER
Case No. 24-81
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Cottonwood Heights (“Respondent”).
BACKGROUND
It’s helpful to outline the events that led to this appeal to better understand the parties' arguments and our analysis. We begin with a summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), which essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor's signature if two-thirds of each house of the legislature approved it, which they did. At roughly 8:00 pm that evening, the Governor signed SB 240 into law.[1] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 2:04 am, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2019, through March 1, 2025.” The request then named three individuals.
In a response dated March 6, 2024, Respondent denied access to the records, citing that daily calendars do not constitute a record, pursuant to § 63G-2-103(25)(b)(ix). Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”), who affirmed the decision.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 2024, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the parties' written materials, oral testimony, and oral arguments. 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Time Computation Under Utah Code
The Respondent's first argument is that the 2024 version of GRAMA is controlling because, under Section 68-3-7, GRAMA became operative the day after Petitioner submitted his request.
Section 68-3-7 provides that when an act is performed, time is computed by excluding the first day. Utah Code § 68-3-7(1)(a). Under GRAMA, when a record request is received, the governmental entity customarily has 10 business days to respond to the request. Utah Code § 63G-2-204(4)(b). Thus, according to the Respondent, because of Section 68-3-7, the 10-day clock to respond to a GRAMA request begins one day after the request is submitted. Consequently, the version of GRAMA that is in effect on day one of the 10-day response period is the one that governs the request. Regarding the request at issue, the argument is that although Petitioner submitted his request on the same day but prior to the Governor signing SB 240, the response time began running on the day after the request was submitted and when SB 240 went into law.
The time computation statute governs when a statutorily prescribed act is to be performed. This is made clear by the Subsection (1): “A person shall compute the period of time provided by law to perform an act . . .” Utah Code § 68-3-7(1) (emphasis added). Then, GRAMA states that the entity has 10 business days “after receiving a written request” to issue a formal response to the requester. Utah Code § 63G-2-204(4)(b). Read together, we agree that these statutes mean that the day the request is submitted is excluded from any statutory time periods and the clock begins on the following day. However, day 1 of the response period is not the point in time where we look to see which version of GRAMA is operative.
In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribute v. State Records Committee, 2019 UT 68, ¶1 n.1 where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in determining which version of GRAMA should be analyzed.
The Respondent goes on to argue that Section 63G-2-307 supports the idea that the 2024 version of GRAMA should apply because SB 240 was in effect when it classified the record. We disagree.
Section 307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added). Additionally, “[a] governmental entity may redesignate . . . or reclassify a record . . . at any time.” Utah Code § 63G-2-307(3). The Respondent argues that because Subsection 307(2) allows it to classify the record “at any time,” GRAMA becomes operational when that classification is made. Thus, because it classified the calendars after SB 240 went into effect, the 2024 version of GRAMA controls, and the calendars aren’t records.
We note that Section 307 deals with the classification of “records”—a defined term under GRAMA. Whether the requested calendars are “records” subject to GRAMA is the core issue of this appeal. However, even assuming that Section 307 could apply to the requested calendars, the problem with this argument is that Subsection 307(2) actually supports Petitioner’s position.
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement for the governmental entity is to classify the record when it is requested. That would require classification under the 2023 version of GRAMA when Petitioner made his request. Subsection 307(3) then permits a reclassification at any time after the record has been classified. Consequently, even if Section 307 is applied here, it is unhelpful to the Respondent since the record cannot be reclassified without first being initially classified when the request is made.
Finally, the Respondent argues that the 2024 version of GRAMA controls because it was under this version when Petitioner’s “cause of action” arose. The Respondent argues that Petitioner has no “cause of action” until his record request is denied and that under Gressman v. State of Utah¸ 2013 UT 63, it’s the cause of action that triggers GRAMA into effect, which, in this case, was after SB 240 was signed.
In Gressman, the Court analyzed the difference in retroactivity between procedural and substantive statutory amendments. The Court determined that the statutory amendments at issue were substantive and, therefore, could not be retroactive. This meant that the version of the law in place when the plaintiff’s claim arose was the controlling law. We view this as an oversimplification of Gressman.
It is true that the statute in Gressman was examined in the context of “when Mr. Gressman’s claim arose.” Gressman, ¶20. However, basing statutory effect solely on a “cause of action” is an imprecise formulation:
Instead, our cases stand for the simpler proposition that we apply the law as it exists at the time of the event regulated by the law in question. Thus, if a law regulates a breach of contract or tort, we apply the law as it exists when the alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action . . . Similarly,, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed.
State v. Clark, 2011 UT 23, ¶13 (emphasis added). From this instruction, it’s not a cause of action per se, but the event is being regulated. Since GRAMA is a unique statute that “does not contemplate adversarial combat over record requests,” we don’t believe that a cause of action must arise before the requester can gain certainty about which law will govern their request. Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25.
As discussed in greater detail below, SB 240 amended a statutory definition. The amendment substantively affected which records could be requested under GRAMA. As a result, the event that SB 240 regulates is not that which gives rise to a cause of action (the denial of the request) but the request itself. Therefore, we find the “cause of action” argument is unpersuasive.
Ultimately, we find that the case law cited above and the plain language of Section 307 shows that the requester has the right to rely on the version of GRAMA in effect when the record request was submitted, which, in this case, was the 2023 version of GRAMA.
2. The Retroactive Effect of SB 240
The Respondent argues that even if GRAMA was triggered into effect when Petitioner’s request was made, the request was still correctly denied because SB 240 applied to his request retroactively.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[2] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Waddoups, supra.
The Respondent brings Wasatch County v. Okelberry 2015 UT App 192 to our attention. That decision was rendered two years after Gressman and the Court held that a seemingly purely clarifying amendment retroactively applied. The Respondent argues that, as a more recent case than Gressman, Okelberry supports—and even controls—the proposition that a simple clarifying amendment has a retroactive effect. We are in no position to guess why the Okelberry court ignored the repudiation given in Gressman and reinforced in Waddoups, but regardless, we find that Okelberry is distinguishable in its facts.
In that case, the Supreme Court interpreted the “continuous use” requirement found in Section 72-5-104(1) (2009). The legislature disagreed with the Court’s definition and amended the statute in direct response to the Court’s decision. The amendment clarified the legislative intent behind “continuous use” by essentially defining the term and establishing elements that must be satisfied to trigger the statute’s application. Appeals then ensued over whether the legislative amendment applied retroactively.
Notably different from our case is that in Okelberry, is that the legislature’s amendment clarified the meaning of the term “continuously used.” Lawmakers established a definition to guide judicial interpretation. In our case, the legislature didn’t clarify the meaning of “daily calendars.” Instead, it made “daily calendars” its own line item in the list of items that don’t constitute a record. Thus, even though the legislature attempted to “clarify” its original intent behind daily calendars and GRAMA, it created an all-new definitional term after Judge Corum determined the statute's plain language was clear. The contrast between Okelberry and our case is clear: the former created a definition; the latter eliminated a right. The cases are not analogous, and Gressman still controls our decisions.
3. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that they constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
4. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
5. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., chair pro tem, Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
2. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MIKI MULLOR, Petitioner, v.
TOWN OF HIDEOUT, Respondent,
DECISION AND ORDER
Case No. 24-35
By this appeal, Miki Mullor (“Petitioner”), requests records allegedly held by Town of Hideout (“Respondent”).
FACTS
The Respondent issued a Request for Information (“RFI”) in September 2023, to gather information from its citizens in relation to developing land in Hideout located at the intersection of Shoreline Drive and Belaview Way. On November 20, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”) for all responses that were received from the RFI.
On December 7, 2023, the Respondent denied Petitioner’s records request on the basis that responses to an RFI are protected records under UCA 63G-2-305. Petitioner appealed the denial to the Respondent’s chief administrative officer (“CAO”), that same day, and the CAO upheld the denial on the same basis. Petitioner then appealed the CAO’s decision to the State Records Committee (“Committee”).
On May 9, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under Utah law, “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). A record that is protected under Section 63G-2-305 is not a public record. Utah Code § 63G-2-201(3)(a). “Only a record specified in . . . Section 63G-2-305 may be classified . . . protected.” Utah Code § 63G-2-305(4). With respect to Section 305, the Code protects the following:
(7) information submitted to or by a governmental entity in response to a request for information, except, subject to Subsections (1) and (2), that this Subsection (7) does not restrict the right of a person to have access to the information, after:
(a) a contract directly relating to the subject of the request for information has been awarded and signed by all parties; or
(b) (i) a final determination is made not to enter into a contract that relates to the subject of the request for information; and
(ii) at least two years have passed after the day on which the request for information is issued.
Utah Code § 63G-2-305(7)(a)-(b). Additionally, the Procurement Code states: “A record containing information submitted to or by a governmental entity in response to a request for information is a protected record under Section 63G-2-305.” Utah Code § 63G-6a-409(5); see also Utah Code § 63G-2-107(1) (when records are governed by another statute, access to those records are governed by the other statute).
Here, the RFI was issued in contemplation of potential development projects. Respondent has not entered into a final contract with any contractor related to the RFI or a connected solicitation. Nor has Respondent made any final determination on whether it will enter into such a contract. And finally, two years have not passed since the RFI was issued. As a result, the information obtained from the RFI is protected under Subsection 305(7).
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 20 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Cornwall, M., Williams, K., Buchanan, M., and Dubovik, N. voted in favor of and joined in this Decision and Order.
enclosed: Right of 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 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).
",Denied,2024-05-20T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SYDNEE GONZALEZ (Utah Investigative Journalism Project), Petitioner, v.
UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent,
DECISION AND ORDER
Case No. 24-58
By this appeal, Sydnee Gonzalez (“Petitioner”), requests records allegedly held by Utah Department of Public Safety (“Respondent”).
FACTS
On March 5, 2024, Petitioner submitted a public record request to the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the “911 calls for incidents at Whitehorse High School in Montezuma Creek between Aug. 1, 2022, and March 5, 2024.”
On March 8, 2024, the Respondent ultimately denied the request on the basis that it didn’t maintain the records Petitioner sought. Petitioner then appealed the denial to the Respondent’s chief administrative officer (“CAO”).
In a letter dated March 18, 2024, the designee for the CAO wrote to Petitioner and denied the appeal. The designee explained:
The records you have requested are not public under Utah Code Ann. § 63G-2-201(3)(b) as they are records to which access is restricted pursuant to another state statute. The interests protected are those of the submitting agency, the Navajo Nation, and these records are the property of the handling agency.
In other words, the 911 dispatch recordings belonged to the Navajo Nation and are subject to their laws. Petitioner appealed to the State Records Committee (“Committee”).
On July 18, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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 to which access is restricted pursuant to another statute, is not a public record. Utah Code § 63G-2-201(3)(b). When a record is governed by another statute, access to that record is governed by that statute. Utah Code § 63G-2-107(1)(a).
In analyzing the issue before us, we begin with a review of whether the 911 dispatch calls are records at all. GRAMA defines a “record” as, among other types of documentary material, a “record . . . (i) that is prepared, owned, received, or retained by a governmental entity or political subdivision; and (ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.” Utah Code § 63G-2-103(25)(a)(i)-(ii). Here, the Respondent argues that federal law requires that all 911 calls be directed to an established geographical Public Safety Answering Point (“PSAP”). Because the Navajo Nation does not have a PSAP within its geographical Utah jurisdiction, those emergency calls are routed to the Respondent’s Price Communication Center. From there, upon answering the call, Price Communication Center relays the information to the Navajo Nation law enforcement entity. Upon relaying the information, any recording of the call is retained as a transitory note and destroyed after 30 days according to the general retention schedule. Thus, according to the Respondent, it no longer maintains any record of the 911 calls at issue; it’s only the Navajo Nation that can release the records they were relayed and currently have.
In our minds, it’s clear that the 911 calls were initially received by Price Communication Center, which is under the Respondent’s organizational structure. Therefore, the Respondent did receive the calls and their recordings. It’s also arguable that because the calls were initially received by Price Communication Center, the call recordings are owned by the Respondent. We note that GRAMA’s definition of a record requires that only one element—prepared, owned, received, or retained—be met for a record to be created. Accordingly, the fact that the Respondent received the calls is enough for the calls to constitute a record under GRAMA.
Upon establishing that the 911 calls are records, we now turn to whether the records are public. In any other circumstance, the fact that the Respondent received the calls and held the recordings would generally be enough to compel disclosure of emergency calls. However, in this case, we are dealing with the governance of the Navajo Nation—a sovereign nation. Once the information is relayed to that Nation, it’s likely that they now have an ownership claim in the record, in which case, the Navajo Nation privacy and public record laws would apply. Even if the Respondent retained a copy of the recorded calls, Navajo law would equally apply due to their interest in the records. Therefore, pursuant to Subsection 63G-2-107(1)(a), we find that because the recordings are under the governance of the Navajo Nation, their disclosure is subject to Navajo law. Accordingly, we have no jurisdiction over the records.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 30 day of July 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M. Chair pro tem, Williams, K., Biehler, E., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
UTAH STATE BOARD OF EDUCATION, Respondent,
DECISION AND ORDER
Case No. 24-80
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by the Utah State Board of Education (“USBE”) (“Respondent”).
BACKGROUND
It’s helpful to outline the events that led to this appeal to better understand the parties' arguments and our analysis. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to the district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), which essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor's signature if two-thirds of each house of the legislature approved it, which they did. At roughly 8:00 pm that evening, the Governor signed SB 240 into law.[1] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 1:20 am, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and appointments for the following from January 1, 2019, through March 1, 2025.” The request then named ten individuals.
On March 1, 2024, the Respondent denied access to the records, saying: “The calendars you’ve requested are not records as explicitly stated in Utah Code Ann. § 63G-2-103(25)(ix) (as amended by SB 240, which has been signed and is effective now.” Petitioner appealed the denial to the Respondent’s chief administrative officer (“CAO”).
On March 12, 2024, Assistant Attorney General Ashley Biehl, acting on behalf of CAO Superintendent Sydnee Dickson, denied Petitioner’s appeal, stating:
“In that matter, Judge Corum held that only the specific calendar in that case was a “record” based on specific facts of how it was utilized and shared among others. Those specific facts and circumstances would be different in this matter.
Regardless of the above noted case, Judge Corum’s decision is superseded by the signing of SB 240 by Governor Cox on February 28, 2024, and while your request came in before that date, the law was signed into effect before USBE’s response was due. Because the statute was in effect at the time Mr. Rasmussen classified the documents, the statute is controlling. The timing of when the record was created is irrelevant. GRAMA specifically allows a governmental entity to classify or reclassify a record at any time under 63G-2-307(2)-(3). Mr. Rasmussen classified these documents after SB 240 was signed into effect on February 28, 2024, and therefore, the law applied.”
Petitioner appealed the denial to the State Records Committee (“Committee”). On September 19, 2024, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the parties' written materials, oral testimony, and oral arguments. 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Daily Calendars Are Not Records Under GRAMA
In the Respondent’s Statement of Facts, it argues that Utah Code § 63G-2-103(25)(b)(ix) clearly excludes “daily calendars” from the definition of “record,” and therefore, it properly denied the record request. But this argument assumes that the 2024 version of GRAMA applies to the request. It does not.
Petitioner submitted his request on February 28th but before SB 240 was signed into law. In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribune v. State Records Committee, 2019 UT 68, ¶1 n.1, where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in our determination of which version of GRAMA should be analyzed. Consequently, the 2023 version of GRAMA governs the request, and under that version, only personal calendars are excluded from the definition of “record.” Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
2. Legislative Intent
The Respondent next argues that the legislative intent behind GRAMA and SB 240 is abundantly clear that all forms of daily calendars fall outside GRAMA. However, with the 2023 version of GRAMA applying to the request at issue, the legislative intent has already been addressed by both this Committee and Knox. In both cases, but more elaborately analyzed by Judge Corum in Knox, the legislative intent was immaterial to the analysis because the statute's plain language was clear. See Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶9 (“. . . where statutory language is plain and unambiguous, [a court] will not look beyond the same to divine legislative intent.”). Therefore, we see no need to focus on the legislative intent of the 2023 version of GRAMA.
3. SB 240’s Retroactivity
To be sure that the 2024 version of GRAMA is inapplicable, we analyze its retroactive effect, if any.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. Additionally, the Respondent points out that the General Retention Schedule also treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions in general are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we disagree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[2] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Gressman and Waddoups, supra.
4. Responsive Records
The Respondent argues that 9 out of the 10 employees for whom Petitioner requested calendars use them for personal use and don’t share their calendars with anyone else. Additionally, the Respondent argues that many of the individuals held non-elected positions during the time period Petitioner requested, and, therefore, the public interest in their calendars is minimal.
Upon review of the arguments, we agree. GRAMA defines a “record” as any “documentary material regardless of physical form or characteristics: (i) that is prepared, owned, received, or retained by a governmental entity. . . .” Utah Code § 63G-2-103(25)(a)(i).
At the hearing, the Respondent testified that, of the 10 individuals subject to the request, only Superintendent Sydnee Dickson used an official work-related calendar during the time period Petitioner requested. All other individuals were part-time officials who didn’t use an official calendar but a personal one. Additionally, the record shows that Superintendent Dickson shared her calendar with staff members.
From this, we find that only Superintendent Sydnee Dickson’s calendar is responsive to the request because it is the only calendar of the ten requested that was used for official business and because it was shared with her staff for official use. Additionally, due to Superintendent Dickson’s high-ranking position as State Superintendent of Public Instruction, the public interest in the calendars is compelling enough to warrant the release.
5. Future Entries on Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that future calendar events constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
6. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
7. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
1. The Respondent shall deliver to Petitioner Superintendent Sydnee Dickson’s calendar;
2. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
3. The Respondent may redact personal information from the calendar;
4. The Respondent may assess fees for the record production in accordance with Section 63G-2-203;
5. The Respondent has no duty to deliver the other requested calendars.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., Cornwall, M., Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
2. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DESERET NEWS PUBLISHING COMPANY vs
UTAH DEPT. OF PUBLIC SAFETY, DRIVERS LICENSE DIVISION
DECISION AND ORDER, CASE NO. 92-02
By this appeal the Deseret News seeks an order compelling the Drivers License Division to allow it to inspect, without charge, the driving records of 50 candidates for political office. The Drivers License Division is willing to allow the inspection but is not willing to waive the fee the Division believes it is entitled to pursuant to Utah Code Ann. 41-2-119(1) & 103(29). The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the oral argument and testimony of the parties and comments from other interested persons on November 6, 1992, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (GRAMA) specifies that "every person has the right to inspect a public record free of charge..." Utah Code Ann. 63-2-201(1) (1992). See also Utah Code Ann. 63-2-203(4) (1992).
2. However, GRAMA also specifies that "the disclosure of records to which access is governed or limited pursuant to...another state statute, ...is governed by the specific provisions of that statute..." Utah Code Ann. 63-2-201(6) (1992).
3. We find that the Utah Operators' License Act is just such a statute and that it governs disclosure of driving records. Utah Code Ann. 41-2-102 et. seq. (1992).
4. The specific provisions of the Operators' License Act that govern disclosure of such records allow the Division to charge a fee of $3.00 to "search the license files and furnish a report on the driving record of any person licensed to drive in the state...". Utah Code Ann 41-2-103(2) & 119(1) (1992).
5. Of course, before a person can inspect a driving record the Division must first search the files and furnish it to him/her. Since the Operators' License Act governs, and since it allows the Division to charge a fee for that service, we find that the Division may charge the fee.
6. Moreover, GRAMA specifies that the GRAMA provisions regarding fees do "not alter, repeal, or reduce fees established by other statutes or legislative acts." Utah Code Ann. 63-2-203(7) (1992).
7. We hasten to add that this decision should not be construed as approving the charging of a fee for inspection of a record. Rather, it should be narrowly construed and applies only to situations like the present where another statute specifically authorizes a fee.
8. We also stress that, although the Operators' License Act authorizes the Division to charge the $3.00 fee, it does not require them to do so. The Division could have waived the fee and we strongly believe that they should have done so in this case since the request was not burdensome and since disclosure primarily benefits the public. If the Deseret News is still interested in the records, we encourage the Division to waive the fee, though we do not believe we have authority to mandate a fee waiver in this case.
ORDER
THEREFORE IT IS ORDERED THAT the decision of the Department of Public Safety is sustained and the appeal is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2- 404 & 502(7) (1992). 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.
Entered this 12th day of November, 1992.
BY THE STATE RECORDS COMMITTEE,
MAX J. EVANS, Chairman
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LINDA A. WATSON vs.
DEPARTMENT OF HUMAN SERVICES, OFFICE OF LIABILITY MANAGEMENT
DECISION AND ORDER, CASE NO. 94-05
By this appeal, Appellant seeks an order compelling the Utah Department of Human Services, Office of Liability Management to release to her records appellant described in her appeal letter of March 27, 1994 as "a full copy of Resolution Assistance Committee report on my minor children and me dated March 23 from Kerry Steadman."
Appellant appeared personally at the hearing held May 4, 1994. Appellee appeared at the hearing through Jack L. Green, Director, Office of Liability Management.
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is granted in part and denied in part, Appellee to segregate matter in the records in issue under Utah Code Ann. 63-2-307.
There is some matter in the records that is properly classified as "protected" under Utah Code Ann. 63-2-304(8)(a)(b) and (d). This protected matter is identifying names and information that is described in the indicated subsections of the Utah Code. The larger portion of the record is not properly classifiable as "protected," but is releasable to Appellant as the person to whom the records pertain. Appellee is not entitled to withhold this larger portion as subject to the attorney-client privilege. The record at issue in this hearing is the report on Appellant only, and this Decision does not automatically justify release of other records of Appellee that consist of reports of the DHS Resolution Assistance Committee regarding DFS actions.
ORDER
WHEREFORE, IT IS ORDERED that appellant's appeal is granted in part and denied in part, Appellee to segregate matter in the records in issue under Utah Code Ann. 63-2-307, withholding only identifying names and information that is described in Utah Code Ann. 63-2-304(8)(a)(b) or (d).
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 & 502(7). 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.
Entered this 9th day of May, 1994.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEPHEN E. HUGHES, Appellant, v.
DIVISION OF INVESTIGATIONS, Appellee
DECISION AND ORDER, Case No. 95-04
Appellant, Stephen E. Hughes, seeks an order reversing Appellee's denial of Appellant's request for all records relating to Appellant that are or may be held by Appellee.
Appellee declines to state whether it has any records relating to Appellant and states that under Utah Code Ann. 63-2-304(8) any such records, including information as to whether or not there are any such records, are "protected," and hence not subject to release. Appellant was present at the hearing before the Records Committee held June 20, 1995, and represented himself, and Appellee was represented at the hearing by Richard D. Wyss, Esquire, of the Utah Attorney General's Office. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The Appeal is denied. The records requested or type of records requested of Appellant are records of a State investigative agency duly authorized under the laws of Utah. As such they are protected under Utah Code Ann. 63-2-304(8)(a)(b)(d) and (e).
ORDER
WHEREFORE. it is ordered that Appellant's appeal is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advice from an attorney.
Entered this 22nd day of June, 1995.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WILLIAM T. JACOB, Appellant vs.
AMERICAN FORK CITY, Appellee.
DECISION AND ORDER
Appellant, William T. Jacob, seeks an order requiring Appellee to supply records concerning an investigation of the American Fork Police Department referred to in a January 7, 1998 Citizen newspaper article.
Appellant appeared in his own behalf, and presented documentation, witnesses and argument. Appellee was represented by Kevin R. Bennett, Esq., Attorney for American Fork City, and presented documentation, witnesses and argument. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is denied, subject to the condition indicated below. Based on the evidence presented, the Committee concludes that Kevin Watkins, Esq., hired by the City to pursue the investigation, supplied only one document to Jess Green, former Mayor of American Fork, regarding Mr. Watkins' "independent investigation." That document, dated July 31, 1997 on the first page and October 30, 1997 on the second page, has already been supplied by Appellee to Appellant. That document is identical to a letter dated December 8, 1997, except for the difference in dates. The variation in dates arises from the way Mr. Watkins and his former office of Strong & Hanni prepared and generated the document on the office computers.
There was no evidence presented that suggests the existence of other documents with the following exception. The testimony indicated the possibility of the existence of an additional letter from Mr. Watkins to American Fork City or Mr. Green, or both, in which Mr. Watkins agreed to render the legal or investigative services reflected in the document identified above. American Fork City stipulated that it would search for any such additional letter, and if it discovered such a document, would supply the same to Appellant. This order incorporates that stipulation as a condition to denial of the appeal.
ORDER
WHEREFORE, it is ordered that Petitioner's request for access to the requested records is denied, subject to the condition stated.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 30 days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process and governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 (1997) and 63-2-502(7)(1997). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advice from an attorney.
Entered this 20th day of March, 1998.
BETSY L. ROSS,
Acting Chair, State Records Committee
",Denied,1998-03-20T00:00:00Z "
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EQUIFAX SERVICES, INC. vs.
UTAH DEPARTMENT OF PUBLIC SAFETY, DRIVER'S LICENSE DIVISION
DECISION AND ORDER, Case No. 93-06
By this appeal Equifax Services, Inc. (Equifax) seeks an order compelling the Utah Department of Public Safety, Driver's License Division to deliver to Equifax certain elements of the Division's database of persons in the State of Utah who hold Utah driver's licenses. In particular, Equifax requests disclosure to it of the name, date of birth, and address of every person in the State holding a currently valid Utah driver's license. The Utah State Records Committee, having reviewed the written materials submitted by the parties, and having heard testimony and oral argument of the parties on September 30, 1993, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (GRAMA) provides that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2) (1993 Supp.).
2. GRAMA also provides that records that are "private" are not public. Utah Code Ann. 63-2-201(3) (1993 Supp.).
3. The Division has classified its file of Utah driver's license holders as "private" and based its denial classification.
4. The Division bases its classification on Utah Code Ann. 63-2-302(2)(d) (1993 Supp.), which provides that "records containing data on individuals the disclosure of which constitutes clearly unwarranted invasion of personal privacy" are "private."
5. The Division also relies on Utah Code Ann. 63-2- 201(6)(a) (1993 Supp.), providing that "[t]he disclosure of records to which access is governed or limited pursuant to ... another state statute...is governed by the specific provisions of that statute...," and Utah Code Ann. 53-3-104(1) (1993 Supp.), providing that "[t]he Division shall...(i) search the license files, compile, and furnish a report on the driving record of any person licensed in the state when requested by any person." The Division asserts that the latter provision accommodates furnishing the record of an individual, but does not contemplate furnishing a list of all persons in the state who hold driver's licenses together with other data.
6. Equifax disputes the Division's classification as private, of the name, date of birth and address of persons holding currently valid Utah driver's licenses, insofar as Equifax uses that information only for the purposes stated in its written appeal.
7. The Committee concludes that though the Division has properly classified its driver's license file as "private," the stated elements of information Equifax seeks should be disclosed to Equifax for the purposes it stated in its appeal on the grounds that the interest in that limited disclosure outweighs the interest favoring restriction under Utah Code Ann. 63-2-403(11)(b) (1993 Supp.).
ORDER
THEREFORE IT IS ORDERED THAT the decision of Division to classify the file of driver's license information "private" is affirmed, but the decision of the Division not to furnish to Equifax the elements of name, date of birth and address of each person holding a currently valid Utah driver's license, to be used for the purposes Equifax stated in its written appeal, is reversed. The Division is to furnish to Equifax the indicated elements of name, date of birth and address, for its use for the purposes Equifax stated in its written appeal. If Equifax were to use the disclosed information for any purpose not stated in Equifax's written appeal, this matter may be reopened before the Committee. In any future cases involving the driver's license file, the Driver's License Division shall make its decisions in light of its obligation to weigh "the various interests and public policies" (Utah Code Ann. 63-2-403(11)(b) (1993) and in light of the statement of legislative intent recognizing two basic rights: "the public right to access to information concerning the conduct of the public's business" and "the right of privacy in relation to personal data gathered by governmental entities." Utah Code Ann. 63-2-102(1) (1993 Supp.).
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 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 by Utah Code Ann. 63-2-404 & 502(7) (1993 Supp.). 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.
Entered this 6th day of October, 1993.
BY THE STATE RECORDS COMMITTEE,
MAX J. EVANS, Chairman.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LINDA A. WATSON vs.
UTAH DEPT. OF HUMAN SERVICES, DIVISION OF FAMILY SERVICES
DECISION AND ORDER, CASE NO 94-07
By this appeal Linda A. Watson, who has been temporarily deprived of the custody and guardianship of her children by the Juvenile Court, seeks an order compelling the Division of Family Services to give her all records the Division has relating to her children.
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the oral argument and testimony of the parties and from other witnesses on June 1, 1994, now 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 Ann. 63-2-201(2) (1992).
2. GRAMA also provides that records that are properly classified as "controlled" or "protected" or to which access is governed by another statute, are not public. Utah Code Ann. 63-2- 201(3) (1992).
3. The Division has given Ms. Watson copies of many of its records. The Division has denied access to certain other records which it has classified as "protected", certain records that it has classified as "controlled" and certain records that the Division claims are exempt from GRAMA by virtue of The Child Abuse Reporting Act. Utah Code Ann. 62A-4-513. Therefore, the primary question before us is whether the Division's classifications are proper.
4. The Division voluntarily agreed to give Ms. Watson a list of the dates of 3rd party correspondence requested in section "h(e)" of her request and to provide a general description of the correspondence (i.e. whether it was a letter or some other form). The list will not contain any identifying information.
5. The Division also voluntarily agreed to provide the name of the investigating police agency.
6. After considering all of the evidence we find that the information that the Division has classified as "protected" and "controlled" is properly classified.
7. We also agree that the records that were withheld pursuant to The Child Abuse Reporting Act were properly withheld.
ORDER
THEREFORE IT IS ORDERED THAT the Division's denial is affirmed and the appeal fails.
RIGHT TO APPEAL
Pursuant to Utah Code Ann. 63-2-404 this Decision and Order may be appealed to the District Court by either party. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 (1992). 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.
Entered this 6th day of June, 1994.
BY THE STATE RECORDS COMMITTEE,
MAX J. EVANS, Chairman
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LINDA A. WATSON, Appellant, vs.
UTAH DEPARTMENT OF HUMAN SERVICES, DIVISION OF FAMILY SERVICES
DECISION AND ORDER, CASE NO. 94-15
Appellant Linda A. Watson, through counsel, seeks an order reversing Appellee's denial of Appellant's request for certain records that are held by Appellee. The records in question are two letters from Dr. Kevin Gully (a supervising therapist for minor children of Ms. Watson) and a complete unredacted letter of a third party. The Division has supplied a redacted copy of the third party letter.
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard testimony and now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The Appeal is denied. It arose in the hearing that Appellant already has obtained the two letters from Dr. Gully from another source independent of the Government Records Access and Management Act (GRAMA). Thus, the appeal is denied as to those two letters on the grounds the request and appeal are moot.
The Committee determines that Utah Code Ann. 62A-4a-412 and 78-3a-314(5) do not supersede GRAMA as to the third-party letter inasmuch as that letter is not covered by those sections because it was not obtained as a result of a report. Rather, the redacted portion of the letter is "protected" under Utah Code Ann 63-2-304(8)(d) and 63-2-304(9). As a "protected" document the unredacted third-party letter is not subject to release to Appellant.
ORDER
WHEREFORE, it is ordered the Appellant's appeal is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to District Court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-402 and 63-2-502(7). 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. This notice is required by Utah Code Ann. 63-2- 403(12)(d).
Entered this 28th day of October, 1994.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RANDY T. NIELSEN vs.
UTAH DEPT. OF NATURAL RESOURCES, DIVISION OF WILDLIFE RESOURCES
DECISION AND ORDER, CASE NO. 93-01
By this appeal Randy T. Nielsen seeks an order compelling the Division of Wildlife Resources to give him a list of the names and addresses of all persons who bought hunting or fishing licenses since 1982 whose addresses are in zip codes 84104 and 84119. The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the oral argument and testimony of the parties and comments from other interested persons on March 12, 1993, now 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 Ann. 63-2-201(2) (1992).
2. GRAMA also provides that records that are properly classified as "private" are not public. Utah Code Ann. 63-2-201(3) (1992).
3. The Division has classified home addresses of license holders as "private" and bases its denial on that classification. Therefore, the primary question before us is whether that classification is proper.
4. The Division bases its classification on Utah Code Ann. 63-2-302(2)(d) which provides that "records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy" may be classified as "private".
5. The Division attempts to justify its classification primarily by claiming that "surrounding states have incurred problems such as harassment of hunters by individuals who do not share the same views on hunting", by reliance on a Dan Jones poll that concludes that seventy-five percent of license holders oppose release of names, addresses, and telephone numbers, by arguing that some license holders "would be irritated rather than enlightened by unwanted solicitations, and by reliance on federal case law."
6. Though we do not specifically rule on the validity of those reasons, we are not persuaded that they are adequate in this case. We are particularly concerned that the Division has used the lists to do joint mailings with certain private entities without allowing use of the lists by other private entities who may have differing points of view.
7. After considering all of the evidence we do not believe that release of the requested information would constitute a clearly unwarranted invasion of personal privacy.
8. We therefore find that classification of the requested records as "private" is inconsistent with GRAMA.
9. Pursuant to authority granted us by Utah Code Ann. 63-2- 502(2)(b) we find that the classification should be changed to "public".
ORDER
THEREFORE IT IS ORDERED THAT the Division classify the names and addresses of purchasers of hunting and fishing licenses as "public" and that the Division allow Mr. Nielsen to have access to those public records in accordance with the requirements of GRAMA. This decision should not be understood to mean that all lists of names and addresses held by governmental entities are public.
RIGHT TO APPEAL
Pursuant to Utah Code Ann. 63-2-404 and 502(7) this reclassification Decision and Order may be appealed to the District Court by either party, by any affected governmental entity, or by any other interested person. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 & 502(7) (1992). 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.
Entered this 17th day of March, 1993.
BY THE STATE RECORDS COMMITTEE,
MAX J. EVANS, Chairman.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SALT LAKE CITY CORPORATION vs.
UTAH DEPARTMENT OF EMPLOYMENT SECURITY
DECISION AND ORDER CASE NO. 94-03
By this appeal, Appellant, Salt Lake City Corporation, seeks an order compelling the Utah Department of Employment Security to release to it records showing the number of employees for each business of which it has record within Salt Lake City.
Appellant appeared through counsel, Assistant City Attorney, Larry V. Spendlove, Esq., at the hearing of the Committee held March 2, 1994.
Appellee appeared at the hearing through counsel, Lorin Blauer, Esq.
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
Appellant, Salt Lake City, urges that the records it requests must be released to it on the grounds that all "records are public unless otherwise expressly provided by Statute" (Utah Code Ann. 63-2-201 Supp. 1993)), and that there is no statute that otherwise expressly provides. Appellant also cites Utah Code Ann. 63-2-102(3)(e) (Supp. 1993) "favoring public access when, in the application of this act, countervailing interests are of equal weight."
Appellee cites Utah Code Ann. 63-2-201 (3)(b) (Supp. 1993), providing that "records to which access is restricted pursuant to ... another state statute" are "not public" and hence are exempt from the Government Records Access and Management Act. Appellee also cites Utah Code Ann. 35-4-11 (7)(c) (Supp. 1993), part of the Utah Employment Security Act, as "another state statute" that restricts access to the requested records. The latter statute provides as follows:
(c) Information thus obtained [from an employing unit] or obtained from any individuals may not be published or open to public inspection, other than to public employees in the performance of their public duties, in any manner revealing the employing unit's or individual's identity, but any party to a hearing before an administrative law judge or the commission shall be supplied with information from these records to the extent necessary for the proper presentation of his case. The commission shall, upon request in writing from any employer, furnish in writing any information requested concerning claims for benefits with respect to his former employees.
Section 35-4-ll (7)(c) does restrict access to department records, but with an exception the Committee takes as controlling here -- the information may not be released "other than to public employees in the performance of their public duties." It appears that by negative implication under this section of the Utah Employment Security Act, certain information may be released to public employees in the performance of their public duties. Appellant has satisfied the Committee that the use to which appellant will put the product of its narrow and specific request is within the "public duties" the performance of which warrants "publish[ing]" the requested records to appellant, under the section.
ORDER
WHEREFORE, IT IS ORDERED that appellant's appeal is granted and appellee is to furnish to appellant the number of employees of each business in Salt Lake City, insofar as that information is in Appellees records, for use as indicated by appellant in its presentation to the Committee, and to be maintained confidential for such purposes.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 & 502(7) (1992). 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.
Entered this 7th day of March, 1994.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WILLIAM REMINE, Appellant v.
UTAH BOARD OF PARDONS AND PAROLE, Appellee
DECISION AND ORDER, Case No. 94-11
By this appeal, William Remine seeks an order compelling Appellee, represented by Assistant Attorney General James H. Beadles, to release to Appellant all records that the Board of Pardons and Parole has regarding him that are classified as "protected." Mr. Remine does not dispute that the requested records meet the definition of "protected" provided in the Government Records Access and Management Act (GRAMA), but urges they should nonetheless be released to him under the weighing provision of Utah Code Ann. 63-2-403(11)(b).
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is denied. Some of the material requested consists of notes or internal memoranda prepared as part of the deliberative process of the Board of Pardons and as such is not within the definition of record and hence is not releasable under Utah Code Ann. 63-2-201(1). See Utah Code Ann. 63-2-103(18)(b)(ix).
The remainder of the material requested by Appellant is "protected" under Utah Code Ann. 13-2-304(12), as conceded by Appellant. The Board further determines that the public interest favoring access does not outweigh the interest favoring restriction of access and therefore affirms Appellee's denial of the request of Appellant. See Utah Code Ann. 63-2-403(11)(b).
ORDER
WHEREFORE, it is Ordered that Appellant's appeal is denied and the Board's decision is affirmed.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-402 & 502(7). 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.
Entered this 4th day of August, 1994.
MAX J. EVANS,
Chair State Records Committee.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
L. CHRIS CARTER, Appellant, v.
UNIVERSITY OF UTAH, Appellee
DECISION AND ORDER, CASE NO. 95-02
Appellant, L. Chris Carter, seeks an order reversing Appellee's denial of Appellant's request for certain records that are held by Appellee. The records in question are patient schedules, patient care plans and hemo dialysis flow sheets prepared by Appellant at the University of Utah Dialysis Unit located in Provo, Utah. Appellee supplied certain other documents to Appellant, but has denied access to the specified documents on grounds they are properly classified "private." Appellant was present at the hearing before the Records Committee on April 19, 1995 and was also represented at the hearing by Arthur F. Sandack, Esq. and Appellee was represented at the hearing by Laura S. Scott, Assistant General Counsel.
The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The Appeal is granted with limitations. It is stipulated by the parties and found by the Committee that the records in question are properly classified "private" under Utah Code Ann. 63-2-302. However, Appellant contends the records should be released to her anyway under the "weighing" provision of Utah Code 62-2- 403(11)(b). That provision is as follows:
(b) The records committee may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or non- disclosure, order the disclosure of information properly classified as private, controlled, or protected if the public interest favoring access outweighs the interest favoring restriction of access.
Appellant has been terminated from her position with Appellee and seeks the records for the purpose of determining whether they may be relevant to Appellant's position that the termination was wrongful, and if so, for the subsequent purpose of using the records in support of Appellant's challenge to the termination. Certain personnel of Appellee have had access to these records for consideration on the termination question though Appellee has stated it has not based and will not base its termination decision on information in those records. Appellee also states that in reviewing the termination, the reviewing official, Mr. Fred Peterson, did not consider the records and that upon future review of the matter the responsible individuals (Mr. Peterson, the Personnel Relations Committee. the Vice President for Health Sciences) will not review these patient records in making their decisions regarding Ms. Carter's grievance.
The Committee determines that the interest in disclosure of the records outweighs the interest favoring restriction of access. Appellant should have the same access to records that have been reviewed by Appellee personnel regarding the termination issue as Appellee had. Further, even if Appellant does not base its termination decision on these records, they may be relevant to Appellant's position, affirmatively, that Appellant was a "good" employee who should not be terminated. Appellee should redact and segregate the records under Utah Code Ann. 63-2-307 so as to protect insofar as possible the privacy interests of individual patients while at the same time disclosing the information that is relevant to Appellant's conduct as an employee for purposes of the termination and grievance proceedings. Further, Requester shall limit her use of the indicated records to termination and grievance proceedings to which the records may be relevant under Utah Code Ann. 63-2-403(11)(c), leaving any question of their use in the courts to determination of the courts.
ORDER
WHEREFORE, it is ordered that Appellant's appeal from the denial of her request for access to the records is granted with the limitations indicated above.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 and 63-2-502(7). 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.
Entered this 21st day of April, 1995.
MAX J. EVANS,
Chair, State Records Committee.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROGER BRYNER, Petitioner, v.
CLEARFIELD CITY, UTAH. Respondent.
DECISION AND ORDER
Case No. 15-27
By this appeal, Petitioner, Roger Bryner, seeks access to records held by Respondent, Clearfield City, Utah.
FACTS
On July 10, 2015, Mr. Bryner sent a records request pursuant to the Government Records Access and Management Act (“GRAMA”) via an e-mail to Clearfield City, Utah (“Clearfield”). Mr. Bryner requested 15 categories of records from Clearfield including copies of radio logs, video and audio from patrol vehicle dashboard cameras, evidence logs, manuals, inventory logs, and database entries from 12:00 AM to 4:00 AM on June 3, 2015. Since many of the documents were related to Mr. Bryner’s arrest on June 3, 2015, by the Clearfield Police Department, Clearfield initially responded to his request pursuant to Utah R. Crim. P. 16.
Not satisfied with Clearfield’s response, Mr. Bryner filed an appeal to the chief administrative officer of Clearfield through a letter dated July 28, 2015. In the letter, Mr. Bryner asserted that his request was pursuant to GRAMA, and requested that Clearfield “provide all the records requested to me electronically as .pdf files, and a fee waiver for that production, without any denial whatsoever.” J.J. Allen, Acting City Manager for Clearfield, responded to Mr. Bryner’s appeal through a letter dated August 4, 2015. Mr. Allen denied Mr. Bryner’s request for a fee waiver stating that all remaining requested documents Mr. Bryner was entitled to receive would be provided to him “upon receipt of payment.” A “supplemental response” from Clearfield dated September 30, 2015, stated that Clearfield “has now fully responded to your records request” including providing records and information request relevant to his criminal case pursuant to Utah R. Crim. P. 16 and GRAMA “without charge.” However, records not related to his criminal case would only be provided to Mr. Bryner after payment of the applicable fees.
Mr. Bryner filed an appeal with the State Records Committee (“Committee”) concerning Clearfield’s denial of his fee waiver request. The Committee having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, on October 8, 2015, 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. Every 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 subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). Utah Code § 63G-2-203(1) provides that a governmental entity “may charge a reasonable fee to cover the governmental entity’s cost of providing a record.” Actual costs may include the cost of staff time for “compiling, formatting, manipulating, packaging, summarizing or tailoring the record” into an organization to meet the person’s request, and the cost of staff time for search, retrieval, and other direct administrative costs for complying with the request. See, Utah Code § 63G-2-203(2)(a)(i) & (ii).
3. A governmental entity “may fulfill a record request” without charge and is encouraged to do so when it determines that: (1) The individual requesting the record is the subject of the record; or (2) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(b) & (c).
4. Under GRAMA, the discretion for granting a fee waiver is essentially left to the governmental entity providing the record. The standard of review for the Committee is to determine whether Clearfield’s decision denying Mr. Bryner’s request for a fee waiver was an “unreasonable denial of a fee waiver.” See, Utah Code § 63G-2-203(6)(a).
5. After reviewing the arguments of the parties, the Committee finds that Clearfield’s decision denying Mr. Bryner’s request for a fee waiver was not an unreasonable denial. The total amount of the fee was $33.75, Mr. Bryner was not the subject of the records, Mr. Bryner’s legal rights were not directly implicated by the information in the records, and Mr. Bryner failed to demonstrate that he was impecunious. Additionally, the Committee finds that Clearfield was diligent in identifying all records responsive to Mr. Bryner’s records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, is DENIED.
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 its 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 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 20th day of October 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 16-01
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On June 26, 2015, and on July 20, 2015, Mr. Sullivan made requests for records to the Utah Attorney General’s Office ("AG’s Office"), pursuant to the Government Records Access and Management Act (“GRAMA”). Due to the AG’s Office receiving a large number of GRAMA requests, several extensions to the response deadlines were given for Mr. Sullivan’s requests. Mr. Sullivan filed an appeal with the State Records Committee (“Committee”) raising the issue of the delays being “unreasonable” as his initial requests were sent June 26, 2015, and July 20, 2015. After the appeal had been filed, on January 5, 2016, the AG’s Office mailed Mr. Sullivan its completed response to both of his GRAMA requests. The Committee having reviewed the arguments submitted by the parties, and having heard oral argument and testimony on January 14, 2016, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Generally, GRAMA specifies that after receiving a request for a record, a governmental entity shall “as soon as reasonably possible, but no later than 10 business days after receiving a written request” approve or deny the records request. Utah Code § 63G-2-204(3)(b). Utah Code § 63G-2-204(5) details what can constitute “extraordinary circumstances” that allows a governmental entity to delay approval or denial for an additional period of time if it cannot respond within the time limits provided in -203(3). If the governmental entity fails to provide the requested records or issue a denial “within the specified time period,” that failure is considered the equivalent of a determination denying access to the record. Utah Code § 63G-2-204(8).
2. A requester or interested party may appeal an access denial to the chief administrative officer of the governmental entity by filing a notice of appeal with the chief administrative officer within 30 days after: (1) The governmental entity sends a notice of denial, or (2) The record request is considered denied under Utah Code § 63G-2-204(8). See, Utah Code § 63G-2-401(1). A requester may then appeal the decision of the chief administrative officer of the governmental entity by appealing to the Committee or petitioning for judicial review in district court. Utah Code § 63G-2-402(1)(a).
3. In the present case, counsel for the AG’s Office stated that the AG’s Office mailed a completed initial response to both of Mr. Sullivan’s records requests on January 5, 2016, and Mr. Sullivan had not yet filed an appeal with the chief administrative officer. Mr. Sullivan argued that these delays by the AG’s Office were “unreasonable,” and that the AG’s Office delayed response should be considered to be a denial of access.
4. Although the AG’s Office’s responses to Mr. Sullivan’s records requests were clearly outside of the statutory limits established in Utah Code § 63G-2-204, Mr. Sullivan has not file an appeal with the chief administrative officer pursuant to Utah Code § 63G-2-401(1), and instead filed an appeal directly to the Committee.
5. After hearing arguments from the parties, the Committee finds that issues related to the AG’s Office’s initial denial of access to the records, including whether the AG’s Office properly searched “Google Vault” for records, is not yet properly before the Committee. Mr. Sullivan must first file an appeal with the chief administrative officer of the AG’s Office before appealing the matter to the Committee. See, Utah Code § 63G-2
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is DENIED.
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 its 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 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 26th day of January, 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EDGAR FRYE, Petitioner, v.
UTAH DEPARTMENT OF HUMAN SERVICES, DIVISION OF AGING AND ADULT SERVICES. Respondent.
DECISION AND ORDER
Case No. 16-09
By this appeal, Petitioner, Edgar Frye, seeks access to records allegedly held by Respondent, the Utah Department of Human Services, Division of Aging and Adult Services.
FACTS
On August 17, 2015, Mr. Frye made a records request to the Utah Department of Human Services, Division of Aging and Adult Services ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Frye requested “[a]ll records of interviews, phone calls, etc, in the abuse case of my sister, Bernice Hallman, of St. George, Utah.” In a letter dated August 19, 2015, Respondent denied Mr. Frye’s request indicating that the requested records were classified as “protected.”
On or about August 25, 2015, Mr. Frye filed an appeal, and on September 8, 2015, the Department of Human Services’ Chief Administrative Officer, Sonia Sweeney, affirmed the denial. Thereafter, Mr. Frye filed an appeal with the State Records Committee (“Committee”), and on March 17, 2016, the Committee held a public hearing. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony, and carefully considering the requested relief, the Committee 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 § 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. GRAMA also recognizes that access to records may be restricted pursuant to another state statute, and that disclosure of the record to which access is limited by another state statute “is governed by the specific provisions of that statute…” See, Utah Code § 63G-2-201(3)(b) and 6(a).
2. A governmental entity may properly classify a record as “protected” if the information is “contained in the statewide database of the Division of Aging and Adult Services.” See Utah Code § 63G-2-305(43)(a). Utah Code § 63G-2-202(4)(c) only allows disclosure of a protected record pursuant to a court order or a legislative subpoena. Access to information in the database shall be made available to law enforcement agencies, the attorney general’s office, city attorneys, county or district attorney’s offices, or as required under Utah Code § 63G-2-202(4)(c). See, Utah Code § 62A-3-312(1) and (2). Access to information in the database may also generally be made available “at the discretion of the division” to a vulnerable adult named in the report, or a person identified in the report as having been abused, neglected, or exploited. Utah Code § 62A-3-312(3)(a).
3. Counsel for Respondent argued that the records were classified as “protected” pursuant to Utah Code § 63G-2-305(43)(a), and that Mr. Frye does not qualify as a person entitled to have access to the records under either Utah Code §§ 63G-2-202(4)(c) or 62A-3-312(3)(a).
4. After hearing the argument, the Committee finds that the Respondent properly classified the records as protected, and could not disclose them pursuant to Utah statute. Accordingly, Petitioner’s GRAMA request should be denied.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Edgar Frye, is DENIED.
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 its 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 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 28th day of March 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CHAD LAMBOURNE, Petitioner, v.
PROVO CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 16-03
By this appeal, Petitioner, Chad Lambourne, seeks access to records allegedly held by Respondent, Provo City Police Department.
FACTS
On July 29, 2015, Mr. Lambourne made a records request to the Provo City Police Department ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Lambourne is representing an individual in regards to a Driving Under the Influence (“DUI”) charge and arrest that occurred on July 6, 2015. The requested records related to the DUI incident.
On August 12, 2015, Respondent partially denied Mr. Lambourne’s request indicating that two documents, the DUI Report Form and Incident Report, were classified as protected records. On August 31, 2015, Mr. Lambourne appealed the partial denial, and in a letter dated September 16, 2015, Wayne Parker, the Mayor’s designee, affirmed the Respondent’s partial denial. On October 16, 2015, Mr. Lambourne filed an appeal with the State Records Committee (“Committee”).
On January 7, 2016, Camille S. Williams, Counsel for Respondent, filed a “Motion to Dismiss Appeal as Untimely and Supporting Memorandum” (“Motion”). Respondent argued in the Motion that Mr. Lambourne’s appeal to the Committee was untimely because it was filed with the Committee one day late.
On January 14, 2015, the Committee held a public hearing to consider the merits of the Motion and Mr. Lambourne's Appeal. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony from all of the parties, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In order to appeal a decision to the records committee, the records committee appellant must “fil[e] a notice of appeal with the executive secretary of the records committee no later than 30 days after the date of issuance of the decision being appealed.” Utah Code § 63G-2-403(1)(a).
2. In the present case, Respondent issued the denial via e-mail dated September 15, 2015. The attached document to the e-mail denying Mr. Lambourne’s appeal, was signed and dated September 16, 2015. Mr. Lambourne’s appeal was received by the Executive Secretary of the Committee on Friday, October 16, 2015, via regular U.S. Mail at the Utah Division of Archives in Salt Lake City, Utah, in an envelope that was postmarked October 14, 2015, from a Salt Lake City address.
3. Respondent argued that Mr. Lambourne failed to timely file his appeal with the Executive Secretary, noting that “filing” required the Executive Secretary to receive the appeal by, October 15, 2015. Mr. Lambourne, argued that the denial of his request was emailed after business hours on September 15, 2015, and he did not review it until September 16, 2015. Additionally, Mr. Lambourne stated that he initially believed that he had timely filed the appeal because the denial letter from Wayne Parker, the Mayor’s designee, was dated September 16, 2015.
4. After carefully considering the parties' arguments, the Committee finds that the "Motion to Dismiss Appeal as Untimely and Supporting Memorandum” should be denied. Although Utah Code § 63G-2-403(1)(a) requires the appeal to be filed within 30 days of the chief administrative officer’s decision, the unique circumstances involving the date appearing on the denial letter and the post mark of the appeal, should allow the present appeal to be heard by the Committee.
5. Concerning the subject matter of the appeal itself, 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.
6. A governmental entity may properly classify a record as “protected” if the record was created or maintained for civil, criminal, or administrative purposes, if release of the record reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code § 63G-2-305(10)(a).
7. Counsel for Respondent argued that the denial for the DUI Report Form and Incident Report were proper and allowed by GRAMA because the investigation was still open at the time. Counsel refuted Mr. Lambourne’s representation, that once the proceedings in the criminal DUI matter are complete, the records should have become available upon payment of a reasonable fee.
8. After hearing arguments from the parties, the Committee finds that the records, at the time of the request, were properly classified pursuant to Utah Code § 63G-2-305(10).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Chad Lambourne, is DENIED.
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 its 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 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 26th day of January, 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROGER BRYNER, Petitioner, v.
CLEARFIELD CITY. Respondent.
DECISION AND ORDER
Case No. 16-11
By this appeal, Petitioner, Roger Bryner, seeks access to records allegedly held by Respondent, Clearfield City.
FACTS
On or about January 20, 2016, Mr. Bryner made a records request to Clearfield City pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Bryner requested the following:
[M]eeting minutes or any other documents whatsoever showing the Mayor and/or City Counsel, either individually, separately, or through delegation, appointing either permanent or temporary Justice court Judges. (sic) This should go back 1 year for all of 2015 to present.
On February 10, 2016, Clearfield City provided Mr. Bryner with approximately 110 pages of redacted records, and an explanation for the redactions.
On February 1, 2016, Mr. Bryner made an additional records request seeking:
…any records related to the leave of absence or absence of the justice court judge in 2011….how long he was gone, if he gave notice, and if there are any public documents about this other than what you have already provided.
On February 9, 2016, Clearfield City provided Mr. Bryner redacted records. On or about February 10, 2016, Mr. Bryner appealed both requests on the “basis of the correctness of the redaction...” Clearfield City’s Manager responded to Mr. Bryner’s appeal, finding that the redactions were proper.
Mr. Bryner filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the records in camera, on March 17, 2016, 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 § 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 governmental entity may properly classify a record as “protected” if the “records … are subject to the attorney client privilege,” see Utah Code § 63G-2-305(17).
3. A record is private if it contains data on individuals “describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data.” Utah Code § 63G-2-302(1)(b).
4. A record is “private,” if it concerns a “current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities…” Additional records about at risk employees may also properly be classified as “private.” See Utah Code §§ 63G-2-302(2)(a) and (1)(h).
5. Counsel for Clearfield City argued that the records contained private and protected information, and the information was properly redacted.
6. The Committee, having heard the arguments from the parties, having reviewed the records in camera, and having grouped the records in three separate categories, has determined the following:
1) Email correspondence with Mr. Lenhard and records relating to the February 1, 2016, GRAMA request, were properly classified as private records pursuant to Utah Code § 63G-2-302(1)(b).
2) Email correspondence and records related to the January 20, 2016, GRAMA request were properly classified as protected records and properly redacted pursuant to Utah Code § 63G-2-305(17), with the exception of the “Legislative Section” records.
3) Records originally provided by the Administrative Office of the Courts (“AOC”) cannot be provided by Clearfield City because the AOC are the original custodians and classifiers of the records, and they are not subject to appeal through the Committee as stated in Utah Code § 63G-2-702(2).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, is 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 its 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 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 28th day of March, 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
SALT LAKE CITY CORPORATION Respondent.
DECISION AND ORDER
Case No. 18-63
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Salt Lake City.
FACTS
On or about September 25, 2018, Mr. Eames made a records request to Salt Lake City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested copies of all executed and filed public official penal bonds and all subscribed and filed constitutional oaths of office of certain elected and appointed City officers.
Between September 25, 2018 and October 18, 2018, the parties corresponded regarding the request, and Mr. Eames narrowed his request to records relating only to the current Salt Lake City officials. Thereafter, Respondent granted in part and denied in part Mr. Eames’ request, informing him that some of the records were old and would require Respondent to search microfilmed records. On October 17, 2018, Mr. Eames was provided three individual penal bonds that the Respondent possesses and noted that Mr. Eames had previously been given the “crime blanket bond” that covers all other relevant employees. Mr. Eames was also provided the oaths of office for the current mayor, all city council members, the chief of staff, deputy chief of staff, and finance director.
Unsatisfied with the response, Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief 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. Additionally, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. After having reviewed all written arguments and hearing testimony presented by the parties, the Committee is persuaded that Respondent has provided Mr. Eames with all records that are responsive to his records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is DENIED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
NIBLEY CITY, Respondent.
DECISION AND ORDER
Case No. 18-42
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Nibley City.
FACTS
On or about August 10, 2018, Mr. Eames made a records request to Nibley City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested records relating to any and all documentation of the penal bonds which have been issued, any and all documentation of the oaths of office, and any and all respective agreements relating to the Utah Local Governments’ Trust (“ULGT”).
Respondent indicated that they believed ULGT would be responding to the request on behalf of Nibley City. Through what appears to be a miscommunication, Mr. Eames’ request was not responded to, and therefore deemed a denial. Thereafter, Mr. Eames filed an appeal to the Chief Appeals Officer.
Respondent granted, in part, Mr. Eames’ request by providing copies of oaths of office responsive to his request. Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on November 8, 2018, and carefully considering the requested relief 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. Additionally, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall make and maintain adequate documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities. Utah Code § 63A-12-103(4).
3. Utah Code § 10-3-819 provides that elected officials for municipalities to execute a bond with good and sufficient sureties payable to the municipality and the requirements for the bond. Any political subdivision may create and maintain a reserve fund or may jointly with one or more other political subdivisions, make contributions to a joint reserve fund “for the purpose of purchasing liability insurance to protect the cooperating subdivisions from any or all risks created by this chapter.” Utah Code § 63G-7-703(2).
4. In order to comply with the requirements of Utah Code § 10-3-819, they have a contract with ULGT pursuant to Utah Code § 63G-7-703.
5. After having reviewed all written arguments and hearing testimony presented by the parties, the Committee finds that Respondent shall provide Mr. Eames with all records of penal bonds, all records of insurance in lieu of penal bonds, and records of the interlocal agreement with ULGT.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 20th day of November 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
TREMONTON CITY, Respondent.
DECISION AND ORDER
Case No. 18-50
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Tremonton City.
FACTS
On or about August 8, 2018, Mr. Eames made a records request to Tremonton City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested records relating to any and all documentation of the penal bonds which have been issued, any and all documentation of the oaths of office, and any and all respective agreements relating to the Utah Local Governments’ Trust (“ULGT”).
Respondent indicated that they believed ULGT would be responding to the request on behalf of Tremonton City. Through what appears to be a miscommunication, Mr. Eames’ request was not responded to, and therefore deemed a denial. Thereafter, Mr. Eames filed an appeal to the Chief Administrative Officer.
Respondent granted, in part, Mr. Eames’ request by providing copies of oaths of office responsive to his request. Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on November 8, 2018, and carefully considering the requested relief 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. Additionally, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall make and maintain adequate documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities. Utah Code § 63A-12-103(4).
3. Utah Code § 10-3-819 provides that elected officials for municipalities to execute a bond with good and sufficient sureties payable to the municipality and the requirements for the bond. Any political subdivision may create and maintain a reserve fund or may jointly with one or more other political subdivisions, make contributions to a joint reserve fund “for the purpose of purchasing liability insurance to protect the cooperating subdivisions from any or all risks created by this chapter.” Utah Code § 63G-7-703(2).
4. In order to comply with the requirements of Utah Code § 10-3-819, they would have a contract with ULGT pursuant to Utah Code § 63G-7-703.
5. After having reviewed all written arguments and hearing testimony presented by the parties, the Committee is not persuaded that Respondent does not maintain or control these records. Therefore, the Committee finds that Respondent shall provide Mr. Eames with access to, and/or if requested (Upon payment of approved fees.), copies of all records of penal bonds, all records of crime policy insurance in lieu of penal bonds, and records of the interlocal agreement with ULGT.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 20th day of November 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
TREMONTON CITY, Respondent.
DECISION AND ORDER
Case No. 18-58
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Tremonton City.
FACTS
According to Mr. Eames, on or about September 10, 2018, Mr. Eames made a records request to Tremonton City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested “to access and inspect certain opinions, interpretations and correspondences regarding penal bonds executed and filed by certain persons elected or appointed as certain officers…”
On or about September 24, 2018, after receiving no response from the Respondent, Mr. Eames filed an appeal to the person he believed was the Chief Administrative Officer. Again, no response was provided by the Respondent, and Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief 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. Additionally, records “to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation,” are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall “make and maintain adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities.” Utah Code § 63A-12-103(4).
3. After having reviewed all written arguments and hearing testimony presented, the Committee finds that opinions and final interpretations are public records and that the Respondent shall provide Mr. Eames with all records of such, if available.
4. Additionally, if there is any correspondence related to the above, the Respondent has an obligation to classify such records, and provide Mr. Eames with all public correspondences. If any records are classified as restricted, the Respondent shall provide reasons and/or citations as to why said records are restricted.
5. If the Respondent does not have any records available that are responsive to Mr. Eames’ request, the Respondent shall formally indicate that they don’t have any responsive records.
6. The Committee finds that the Respondent has provided the ordinances. The Committee counsels Respondent to work with Mr. Eames to clarify on what specific records are being requested beyond the ordinances.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JANAE WAHNSCHAFFE, Petitioner, v.
HIGHLAND CITY Respondent.
DECISION AND ORDER
Case No. 19-02
By this appeal, Petitioner, Janae Wahnschaffe, seeks access to records allegedly held by Respondent, Highland City.
FACTS
On or about July 31, 2018, Petitioner made a records request to Highland City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). The requested records included correspondences to and from specific individuals including the mayor of Highland City, copies of investigative written reports, signed affidavits, a presentation given during a board meeting, and copies of outgoing text messages from a specific person. Petitioner asked only to view or inspect the records and requested a fee waiver because she was the subject of the record.
In a letter dated August 1, 2018, Respondent’s City Recorder stated that the estimated cost for provided the requested records would be $2,021.30 based upon 72.5 hours of staff time at $27.88 per hour. Petitioner was informed that she would be required to pay Respondent $2,021.30 before her request would be processed, and if “this request takes more time to process we will notify you of the additional cost before proceeding.” However, if “it takes less time to process [Respondent] will reimburse [Petitioner].”
Petitioner filed an appeal with the mayor of Highland City on August 1, 2018, urging the mayor to “reconsider the [fee waiver] denial since I am the subject of the material requested.” Petitioner also stated that she believed “it’s in the public interest that the residents of Highland City know [whether Respondent] violated the terms of the settlement agreement [and] whether your actions will cost the taxpayers more money.”
In a letter dated August 14, 2018, the City Administrator for Respondent denied Petitioner’s request for a fee waiver. The letter stated that Respondent’s GRAMA Fee Policy and Procedure states that if the requestor is the subject to the records, “the cost of two hours of staff time is waived.” The letter further stated that if the request is of a personal matter of private interest, “there is no established reason to why the request benefits the public rather than a person.” The letter then stated that her “request is for a voluminous amount of records that qualify as an extraordinary circumstance.”
Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 10, 2019, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. GRAMA also specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii). The reviewing body should view the entity’s decision in the context of the governing statute and assess “whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶ 53, __ P.3d __.
4. After having reviewed all written evidence and hearing arguments by the parties during the hearing, the Committee finds that Respondent’s denial of Petitioner’s request for a fee waiver was an unreasonable denial. Based upon the evidence presented, the Committee is convinced that granting Petitioner’s fee waiver request would benefit the public more than a person. For example, several articles had been written in the Daily Herald newspaper regarding the subject matter of the requested records showing that public interest already exists. The Committee also finds that release of the records would allow the public to have access to important information concerning the conduct of the public’s business, which is one of the constitutional rights recognized by the Legislature as the basis for GRAMA. See, Utah Code § 63G-2-102(1)(a). Accordingly, the Committee finds that granting of the request for a fee waiver by Petitioner allowing release of the records would benefit the public consistent with Utah Code § 63G-2-203(4)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Janae Washnschaffe is GRANTED.
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.
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).
Entered this 17th day of January 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UNIVERSITY OF UTAH, MEDICAL CENTER. Respondent.
DECISION AND ORDER
Case No. 16-22
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, the University of Utah, Medical Center.
FACTS
This matter was scheduled for a hearing on June 9, 2016. GRAMA states that “[a]t the hearing, the records committee shall allow the parties to testify, present evidence, and comment on the issues…” (Emphasis added) Utah Code § 63G-2-403(8). The Utah Department of Corrections notified the State Records Committee that the Petitioner was unavailable to attend the hearing. Accordingly, IT IS ORDERED THAT:
ORDER
The hearing is CONTINUED to a later date.
Entered this 20th day of June 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson Pro-Tem,
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KEVIN BERRY, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 16-29
By this appeal, Petitioner, Kevin Berry, seeks access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On or about February 23, 2016, Mr. Berry made a records request to Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Berry requested “psychological evaluation, all medication prescribed, housing units staff comments, clinical evaluations, therapist notes [and] comments and communicational comments from the Attorney General's Office."
On or about March 1, 2016, Susan Delong responded to Mr. Berry on behalf of Corrections, providing him nineteen pages of responsive records. Ms. Delong also denied Mr. Berry's request for the remainder of the responsive records on the grounds that they were classified as "controlled" pursuant to Utah Code §63G-2-304.
Mr. Berry filed an appeal to Deputy Director Haddon on March 26, 2016, and after a requested extension for the purposes of review, Mr. Haddon responded to Mr. Berry on May 1, 2016, upholding the initial denial.
Mr. Berry filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on August 11, 2016, now 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Records containing medical, psychiatric, or psychological data about an individual that the governmental entity reasonably believes if released would be detrimental to the subject’s mental health or to the safety of any individual, are controlled records if properly classified. Utah Code § 63G-2-304.
3. Corrections presented testimony that information within the records concerned the mental health of individuals housed by Corrections, and that release of the information would be detrimental to the safety of individuals and to Corrections’ staff.
4. After having reviewed the written materials, and hearing arguments and testimony from the parties, the Committee finds the testimony concerning the mental health of individuals and safety of the Corrections’ staff persuasive and that Corrections properly classified the records as controlled records pursuant to Utah Code § 63G-2-304. See also, Humphries v. Washington Cty. Sch. Dist., State Records Decision 00-02 (Feb. 10, 2000); Watkins v. Ut. Dept. of Corr., State Records Decision 99-02 (Mar. 18, 1999); and Brantzeg v. Ut. Dept. of Corr., State Records Decision 95-03 (May 11, 1995).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kevin Berry is DENIED.
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 its 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 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 22nd day of August 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LYLE FLETCHER, Petitioner, v.
UTAH COUNTY Respondent.
DECISION AND ORDER
Case No. 18-62
By this appeal, Petitioner, Lyle Fletcher, seeks access to records allegedly held by Respondent, Utah County.
FACTS
On or about September 4, 2018, Mr. Fletcher made a records request to Utah County ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Fletcher requested a number of records relating to a specific criminal case.
On September 7, 2018, Respondent provided Mr. Fletcher a list of available records as well as excluded records that were classified as private, protected or controlled, along with the cost for providing said records. After receiving payment of the fee applicable to the records being provided, and Mr. Fletcher’s additional request for the entirety of the records, including any private, protected or controlled records, Respondent provided all records available with the exception of the private, protected or controlled records.
On or about September 21, 2018, Mr. Fletcher appealed the denial of the private, protected or controlled records to the Utah County Commission. After a hearing was held regarding the request, the Utah County Board of Commissioners (“Board”) granted the release of certain records and upheld the non-public classification to the other records. The Board further granted a reimbursement of the full fee amount paid by Mr. Fletcher.
Mr. Fletcher filed an appeal with the State Records Committee (“Committee”) regarding the denial of the 13 remaining private, protected or controlled records. After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief 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 every 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 subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). “[A]ll 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. Additionally, a record to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are not public records. Utah Code § 63G-2-201(3)(b).
2. Document A is a July 6, 1994 Presentence Investigation Report. Pursuant to Utah Code § 77-18-1(5)(c), the contents of a presentence investigation report are protected and are not available except by court order for purposes of sentencing as provided by rule of the Judicial Council or for use by the Department of Corrections. The Committee finds that Document A was properly classified as a non-public protected record pursuant to Utah Code § 77-18-1(5)(c).
3. Documents B & C are a Pediatric Medical Examination Report and an evaluation letter from a physician. 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 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 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. The Committee finds that Documents B & C were properly classified as non-public controlled records pursuant to Utah Code § 63G-2-304.
4. Document D consist of transcripts of CJC interviews. Pursuant to Utah Code § 63G-2-103(22)(b)(xv), a transcript of a video or audio recording conducted by the CJC is excluded from the definition of a record by GRAMA. Accordingly, the Committee finds that Mr. Fletcher may not receive a copy of Document D because it is not a record under GRAMA.
5. Documents E through L have been classified by Respondent as protected records pursuant to Utah Code § 63G-2-305(18). Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Id. After having reviewed these records in camera, the Committee finds that they were properly classified as non-public protected records pursuant to Utah Code § 63G-2-305(18).
6. Document M is a letter from the victim’s father containing intimate details of his family and according to Respondent, contained details “never intended for Mr. Fletcher.” Respondent argued that release of the letter would be an unwarranted invasion of personal privacy pursuant to Utah Code § 63G-2-302(2)(d). After having reviewed Document M in camera, the Committee agrees with Respondent’s classification and finds that it was properly classified as a non-public private record pursuant to Utah Code § 63G-2-302(2)(d).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Lyle Fletcher is DENIED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH LOCAL GOVERNMENT TRUST, Respondent.
DECISION AND ORDER
Case No. 19-07
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Utah Local Government Trust.
FACTS
On or about December 5, 2018, Mr. Eames made a records request to Utah Local Government Trust ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested numerous emails to/from specific individuals relating to Respondent.
Unsatisfied with the Respondent’s response, Mr. Eames filed an appeal with the State Records Committee (“Committee”) indicating that he had been denied access to the records. After hearing oral argument and testimony on March 14, 2019, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The State Records Committee is authorized to: (1) Grant the relief sought, in whole or in part of a records committee appellant; or (2) Uphold the governmental entity’s access denial, in whole or in part. Utah Code § 63G-2-403(11)(a). Having reviewed Petitioner’s records request and the arguments and testimony of Respondent, the Committee finds that Respondent has not denied the Petitioner’s records request. Therefore, the Committee cannot grant the relief sought by Petitioner because there has not been a records access denial by Respondent. Accordingly, Petitioner’s appeal to the Committee is hereby denied.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is DENIED.
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.
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).
Entered this 25th day of March 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROLF KAESTEL, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 19-23
By this appeal, Petitioner, Rolf Kaestel, seeks access to records held by Respondent, Utah Department of Corrections (“Corrections”).
FACTS
On or about March 27, 2019, Corrections received Mr. Kaestel’s request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Kaestel requested, “[a]ll diabetes-related diagnostics in [his] file between 1999 and December 31, 2007.” Mr. Kaestel noted that he was indigent and on the GRAMA request form, requested that any copies of the records requested be provided without charge.
On April 3, 2019, Corrections denied the request noting that Mr. Kaestel was not indigent pursuant to the Corrections’ policy. Mr. Kaestel appealed the denial stating that he was challenging the constitutionality of Corrections’ policy and claiming a lack of due process. Corrections’ Deputy Director James Hudspeth upheld the denial of the fee waiver.
Thereafter, Mr. Kaestel filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on August 8, 2019, carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. After having reviewed the written and oral arguments of the parties, the Committee finds that there was not an unreasonable denial of Mr. Kaestel’s request for a fee waiver. Mr. Kaestel’s request does not primarily benefit the public. Corrections has made a determination that Mr. Kaestel is not impecunious pursuant to Utah Code § 64-13-23. While Mr. Kaestel is the subject of the records, fulfilling the request could be burdensome because it involves records being researched up to 20 years prior to the present. Further, it is unclear how the records implicate Mr. Kaestel’s legal rights because the records could be produced through discovery.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Rolf Kaestel, is hereby DENIED.
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.
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).
Entered this 19th day of August 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JUDITH ZIMMERMAN, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 19-14
By this appeal, Petitioner, Judith Zimmerman, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On or about January 24, 2019, Ms. Zimmerman made a request for records to the Utah Attorney General’s Office (“AG’s Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Zimmerman requested any and all documentation of disciplinary action taken against four individuals who were current or former employees of the AG’s Office. In a letter dated February 13, 2019, Government Records Counsel Lonny J. Pehrson responded with two pages of records regarding one of the employees, but then stated that after a reasonable search, no records of disciplinary action could be found regarding the other three employees. Mr. Pehrson supplemented the initial response with a four page “Notice of Intent” which had been classified by the AG’s Office as a public record pursuant to GRAMA.
In a letter dated February 26, 2019, Ms. Zimmerman filed an appeal with the AG’s Office. Ms. Zimmerman requested the AG’s Office “search again for disciplinary records” believing that more records could be found. In a letter dated March 12, 2019, Tyler R. Green, Solicitor General for the AG’s Office, responded to Ms. Zimmerman’s appeal. Mr. Green stated that based upon further research, additional records regarding one of the individuals were found “that could conceivably be responsive to your request.” However, Mr. Green concluded that the records were related to “informal or non-disciplinary actions” such as the continuation of a new employee probationary period, the implementation and completion of a performance improvement plan, or an informal verbal counseling of an employee. Accordingly, Mr. Green found that these records should be classified as private records pursuant to Utah Code § 63G-2-302(2)(a). Mr. Green also considered whether the additional records should be re-classified as public records under the weighing authority of Utah Code § 63G-2-401(6). However, Mr. Green determined that release of the records would not be in the public’s interest and therefore, did not release these records to Ms. Zimmerman.
On April 1, 2019, Ms. Zimmerman filed an appeal with the State Records Committee (“Committee”). After reviewing the written arguments of the parties and hearing oral argument and testimony at a hearing held on June 13, 2019, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). Under GRAMA, records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.
2. If a governmental entity receives a request for access to a record that contains both information that the requester is entitled to inspect and information that the requester is not entitled to inspect under GRAMA and the information the requester is entitled to inspect is ineligible, the governmental entity shall allow access to the information in the record that the requester is entitled to inspect and may deny access to information the requester is not entitled to inspect. Utah Code § 63G-2-308.
3. During the hearing, Mr. Pehrson, Counsel for the AG’s Office, stated that an additional eight pages of documents had been released to Ms. Zimmerman during the prior week. Mr. Pehrson also stated that three words in the documents had been redacted prior to being given to Ms. Zimmerman. Mr. Pehrson argued that the redactions were necessary because they contained information that would be considered protected information pursuant to Utah Code §§ 63G-2-305(17) & (18).
4. The Committee examined these documents in camera and determined that the redactions were proper pursuant to Utah Code §§ 63G-2-305(17) (records subject to the attorney client privilege), and -305(18) (records prepared by an attorney for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding). Accordingly, the Committee upheld the AG’s Office’s decision to redact these documents.
5. Records concerning a current or former employee of, or applicant for employment with a governmental entity “including performance evaluations and personal status information”, are private if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a). However, exceptions to this include: (1) Specific information concerning governmental employees listed in Utah Code § 63G-2-301(2)(b), or (2) Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee if the disciplinary action had been completed, the periods for administrative appeal have expired and the charges were sustained. See, Utah Code §§ 63G-2-302(2)(b) & -301(3)(o).
6. The Committee finds that the records regarding employee’s Performance Improvement Plans and the e-mail concerning verbal counseling, are not considered records involving “disciplinary action” pursuant to Utah Code § 63G-2-301(3)(o). Therefore, the Utah AG’s Office is not required to provide these records to Ms. Zimmerman because they were properly classified as private records pursuant to Utah Code § 63G-2-302(2)(b).
7. The Committee also finds that based upon the testimony presented at the hearing, the AG’s Office provided all responsive records to Ms. Zimmerman’s request other than those records which were found to be non-public.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Judith P. Zimmerman, is DENIED.
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.
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).
Entered this 24th day of June 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 19-31
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, the Utah Department of Corrections.
FACTS
On May 17, 2019, Mr. Sullivan made a records request to the Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested, “1. List (index, glossary, table of contents) for all files, documents, reports, etc. stored in LEB track for [two specific case numbers]. 2. Investigative Report, Addendum and Attachments for [a specific case number].” On May 22, 2019, Corrections received an additional request from Mr. Sullivan for “[a]ll records (video, audio recordings, pictures, files, reports, etc.) related to [a specific case number].”
After no response was received from Corrections, Mr. Sullivan filed an appeal to Corrections’ Chief Administrative Officer in a letter dated June 12, 2019. On July 10, 2019, Mr. Sullivan filed an appeal with the State Records Committee (“Committee”) stating that Corrections’ failure to respond was the equivalent to a denial pursuant to Utah Code § 63G-2-401(5)(b)(i). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 12, 2019, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies “every 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, subject to Utah Code §§ 63G-2-203 & -204.”
2. “A governmental entity is not required to fulfill a person's records request if the request unreasonably duplicates prior records requests from that person…” Utah Code § 63G-2-201(8)(d).
3. Counsel for Corrections argued that Mr. Sullivan’s records request unreasonably duplicated a prior records request from Mr. Sullivan, and therefore, Corrections was not required to fulfill the records request.
4. After having reviewed the written arguments of the parties and considering all evidence presented at the hearing, the Committee finds that Corrections was not required to fulfill Mr. Sullivan’s records request because the request unreasonably duplicated a previous records request. See, Utah Code § 63G-2-201(8).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is hereby DENIED.
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.
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 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 September 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY TANNER, on behalf of the SALT LAKE TRIBUNE, Petitioner, v.
WEST VALLEY CITY. Respondent.
DECISION AND ORDER
Case No. 19-45
By this appeal, Petitioner, Courtney Tanner, a journalist for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, West Valley City.
FACTS
On November 14, 2019, Ms. Tanner filed an appeal with the State Records Committee (“Committee”) from a decision by Wayne T. Pyle, City Manager for Respondent, West Valley City. On December 12, 2019, the Committee held a hearing where both parties participated by telephone. A request was made by representatives of both parties for a continuance of the hearing. The parties stated that they wanted to continue to work with the Government Records Ombudsman regarding the appeal. After discussing the parties’ request, the Committee voted to continue the matter until the February 2020 Committee hearing.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Courtney Tanner, is CONTINUED until the February 2020 Committee hearing.
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.
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 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
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UTAH LEGAL CLINIC, Petitioner, v.
SALT LAKE CITY CORPORATION. Respondent.
DECISION AND ORDER
Case No. 16-23
On May 12, 2016, the State Records Committee (“Committee”) held a hearing regarding an appeal filed by Petitioner, the Utah Legal Clinic (“Petitioner”). The records request made by Petitioner was for “[a]ny and all emails sent or received by” certain individuals since July 1, 2013, referencing Trenton Mellen and/or specific court case numbers. After it was determined that the records were too numerous to review in its entirety during the hearing on this matter, the Committee voted unanimously to continue the hearing to a later date in order to allow sufficient time for Committee members to review the disputed records in camera. See, Utah Legal Clinic v. Salt Lake City Corporation, State Records Committee Order No. 16-20 (May 23, 2016). Having reviewed the records in camera provided by Respondent, Salt Lake City Corporation (“Respondent”), and having considered the written and oral arguments made by the parties, the Committee now 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 and -304.
2. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). The attorney-client privilege protects information given by a client to an attorney that is necessary to obtain informed legal advice, which might not have been made absent the privilege. S. Utah Wilderness Alliance v. Auto. Geographic Reference Ctr., 2008 UT 88, 200 P.3d 643, ¶33. In order to rely on the attorney client privilege, a party must establish: (1) an attorney-client relationship; (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice. Id.
3. Similarly, records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of litigation or a judicial, quasi-judicial, or administration, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18). In order for this exemption to apply, the asserting party must show that the documents or materials were prepared in anticipation of litigation by or for a party or that party’s representative. Haik v. Salt Lake City Corp., 2014 UT App 193, 334 P.3d 490, ¶31, following SUWA, 2008 UT 88, 200 P.3d 643, ¶29.
4. In the present case, Respondent provided some documents to Petitioner pursuant to the records request, but denied access to other documents after classifying them as non-public records. Counsel for Respondent argued that the records were prepared “for or by attorneys or other City employees in anticipation of Mr. Mellen’s criminal proceedings.” Counsel also argued that the records consisted of employees of Respondent having communications with the City Attorney or other attorneys “seeking legal advice regarding threatened or potential civil litigation related to or deriving from Mr. Mellen’s criminal prosecution, and/or legal issues surrounding the prior GRAMA requests.”
5. After having reviewed the records in camera, the Committee finds that Respondent properly classified the records as protected records pursuant to Utah Code §§ 63G-2-305(17) & (18). Although the records primarily contain protected information, the in camera review showed that they also contain information that would not be protected pursuant to -305(17) or (18). However, segregating the public information from the protected information would not leave enough detail in the documents that would allow them to be beneficial to the public. Accordingly, Respondent should not be required to provide redacted copies of the records to Petitioner.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Utah Legal Clinic, is DENIED.
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 its 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 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 26th day of July 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROGER BRYNER, Petitioner, v.
UTAH DEPARTMENT OF TECHNOLOGY SERVICES. Respondent.
DECISION AND ORDER
Case No. 16-27
By this appeal, Petitioner, Roger Bryner, seeks access to records stored by Respondent, the Utah Department of Technology Services.
FACTS
On March 22, 2016, Mr. Bryner made a records request to the Utah Department of Technology Services (“DTS”), pursuant to the Government Records Access and Management Act (“GRAMA”), for the following records:
1. All design or specification documents for the Department of Health relational databases which store blood alcohol levels obtained from GC testing, any billing documents between departments, and any other records which would tend to specify the type of database used to query capabilities on that database.
2. The electronic records from the relational database of the results of all blood alcohol tests performed in 2015. [Respondent] may not select the names of the persons who were tested or any other private information but only if allowed by law. [Mr. Bryner] would like these as the result of an SQL query on the Department of Health Database. [Mr. Bryner] would also like a copy of the SQL text used to conduct the query.
3. The electronic records from the relational database of the results of all blood alcohol tests performed in 2016 for ME, my medical records. [Mr. Bryner] would like these as the result of an SQL query on the Department of Health Database. [Mr. Bryner] would also like a copy of the SQL text used to conduct the query.
Additionally, Mr. Bryner requested a fee waiver regarding the production of the above requested records.
On March 23, 2016, Stephanie Weteling, Public Information Officer for DTS, denied Mr. Bryner's GRAMA request, indicating that DTS does not have the authority to release the records because it stores the records electronically on behalf of other governmental entities, and therefore, does not own the records. Mr. Bryner filed an appeal with Michael Hussey, Chief Information Officer for DTS, who thereafter affirmed Ms. Weteling’s denial.
On March 24, 2016, Mr. Bryner filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties, having heard oral argument and testimony on July 14, 2016, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A person making a request for a record “shall submit the request to the governmental entity that prepares, owns, or retains the record.” Utah Code § 63G-2-204(2)(a). GRAMA defines a "record" to include electronic data that is “prepared, owned, received, or retained by a governmental entity or political subdivision.” See, Utah Code § 63G-2-103(22)(a)(i).
2. DTS provided testimony that the requested records are considered “non-department records” as defined by Utah Admin. Code R.895-1-2(3) because the requested records are owned by the Utah Department of Health, and are stored electronically by DTS electronically on behalf of the Utah Department of Health. Because of the unique computer services provided by DTS on behalf of Utah governmental entities, DTS has implemented an Administrative Rule which states that DTS “shall deny a request for access to non-department records” and that the records officer “may redirect a request for non-department records to the owner of the records.” Utah Admin. Code R.895-1-4(3).
3. The Committee finds based upon the testimony and arguments presented, that DTS is not the owner of the requested records, and therefore, is not authorized to produce the records to Mr. Bryner.
4. Mr. Bryner also made a request for a fee waiver for the production of the records. Even though this issue is moot because of the Committee’s finding that DTS could not produce the records, the Committee also finds that DTS’s denial of Mr. Bryner’s request for a fee waiver was not an unreasonable denial. Mr. Bryner failed to sufficiently prove any of the factors listed in Utah Code § 63G-2-203(4)(a-c) and GRAMA “gives a governmental entity the discretion to deny a fee waiver request as long as the denial can be considered reasonable.” Allen v. Eagle Mtn., State Records Comm. Decision 2014-07 (Apr. 14, 2014), ¶7.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, is DENIED.
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 its 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 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 26th day of July 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JESSICA MILLER, on behalf of SALT LAKE TRIBUNE, Petitioner, v.
PROVO CITY POLICE DEPARTMENT and OREM CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 16-36
By this appeal, Petitioner, Jessica Miller, on behalf of the Salt Lake Tribune, seeks access to records allegedly held by Respondents, Provo City Police Department, and Orem City Police Department.
FACTS
On or about May 25, 2016, Ms. Miller, a reporter for the Salt Lake Tribune, made two records requests pursuant to the Government Records Access and Management Act (“GRAMA”): One to the Provo City Police Department ("Provo P.D."), and one to the Orem City Police Department ("Orem P.D."). Ms. Miller requested, "[c]opies of Spillman Case Access Logs for any sexual-related criminal investigation that was accessed by an employee of Brigham Young University, including its police department, from January 2010 to present."
On May 26, 2016, the Records Supervisor for the Provo P.D. denied the request stating that the records were classified as protected due to a pending investigation by the Utah Department of Public Safety ("Public Safety"). On June 1, 2016, Orem P.D. similarly denied their request using the same reasoning. Ms. Miller appealed both denials, with each denial being upheld by their respective appeals departments. Provo P.D. added the additional reasoning that the data had been "shared" with other governmental entities, which would require additional permission from those entities before the data could be released. Further, both Provo P.D. and Orem P.D. noted that the requested information was in a database and was likely not a "record," and that neither entity would be required to "create" a record under GRAMA.
On July 12, 2016, Ms. Miller filed an appeal with the State Records Committee (“Committee”). A Motion to Dismiss was filed by Provo P.D. and joined by Orem P.D., claiming that the Committee did not have jurisdiction to hear the appeal because Ms. Miller failed to comply with the requirements of Utah Code § 63G-2-403(3). On September 8, 2016, the Committee held a public hearing to consider the merits of the Motion and Ms. Miller's Appeal. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony from all of the parties, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Utah Code § 63G-2-403(3)(a)(i) states that a records committee appellant "shall, on the day on which the notice of appeal is filed with the records committee, serve a copy of the notice of appeal" on the "governmental entity whose access denial is the subject of the appeal." The purpose of this provision in GRAMA is to put the governmental entity on notice that an appeal has been filed with the Committee, and allow the governmental entity sufficient time to respond to the appeal.
2. In the present case, both Provo P.D. and Orem P.D. argued that they were not properly served pursuant to Utah Code § 63G-2-403(3)(a)(i), and therefore, Ms. Miller's appeal to the Committee should be dismissed. Ms. Miller, who is not an attorney, claimed that she was initially unaware of the requirement to serve the governmental entities, but served a copy of the notice of appeal immediately after discovering her mistake.
3. Utah Code § 63G-2-403(3)(a)(i) does require the governmental entity to be served a copy of the notice of appeal on the day that the appeal is filed. While the requirements of Utah Code § 63G-2-403(1) ("A records committee appellant appeals to the records committee by filing a notice of appeal with the executive secretary of the records committee no later than 30 days after the date of issuance of the decision being appealed"), are clearly jurisdictional, the strict requirements of Utah Code § 63G-2-403(3)(a)(i) are not jurisdictional and should not be considered fatal to an appeal being heard if the records committee appellant cures the mistake in a reasonable amount of time. See, also Holbrook v. S. Jordan City Council, State Records Comm. Case No. 14-16 (Oct, 15, 2014), ("Utah Code § 63G-2-403(3) is not a jurisdictional reason or issue in the present case requiring the Committee to dismiss Ms. Holbrook's appeal..."). After carefully considering the parties' arguments, the Committee finds that the Motion to Dismiss should be denied.
4. Concerning the subject matter of the appeal itself, 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.
5. A governmental entity may properly classify a record as “protected” if the record was created or maintained for civil, criminal, or administrative purposes, if release of the record reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code § 63G-2-305(10)(a).
6. Respondents provided testimony that there is an open investigation that involves some of the requested records, and that release of these records would reveal witness names and could potentially interfere with the investigation. Respondents also argued that they could not grant access to the complete database because it is a “Shared Data System, a user group consisting of 22 other law enforcement agencies.”
7. A governmental entity may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of a person to inspect and receive a copy of a record under GRAMA. Utah Code § 63G-2-201(11). If a governmental entity receives a request for access to a record that contains both public and non-public information, and the information the requester is entitled to inspect is intelligible, the governmental entity shall allow access to information in the record the requester is entitled to inspect. Utah Code § 63G-2-308(1).
8. After hearing testimony and reviewing the parties' arguments, the Committee finds that Respondents should provide Ms. Miller with records responsive to her request that are considered initial contact reports pursuant to Utah Code § 63G-2-301(3)(g) and were also inputted by Respondents. However, the User ID and comment field that are considered a relevant part of Public Safety's investigation may be excluded by Respondents from disclosure pursuant to Utah Code § 63G-2-305(10)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jessica Miller, on behalf of the Salt Lake Tribune, is 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 its 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 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 19th day of September 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KELLY PEHRSON, Petitioner, v.
SAN JUAN COUNTY, Respondent.
DECISION AND ORDER
Case No. 19-40
By this appeal, Petitioner, Kelly Pehrson, seeks access to records allegedly held by Respondent, San Juan County.
FACTS
On or about May 19, 2019, Mr. Pehrson made a request for records to the San Juan County Clerk pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Pehrson requested records relating to quotes provided by San Juan County Commissioner Kenneth Maryboy, attorney Steven Boos, and James Adakai, in a Salt Lake Tribune article and a press release purporting to be from Mr. Adakai. Mr. Pehrson stated that he would be the subject of the records.
In a letter dated May 31, 2019, San Juan County Clerk/Auditor John David Nielson stated that documents were found related to Mr. Pehrson’s records request and attached them to the letter. Mr. Nielson also stated that certain e-mail accounts had been searched for correspondence related to the records request, but noted that other e-mail accounts and phones mentioned in his request were not searched because they were unavailable.
In a letter dated June 20, 2019, Mr. Pehrson filed an appeal with David Everitt, San Juan County Administrator. Mr. Pehrson stated that he hoped that based upon what had been said in the newspaper articles, “that there are more documents that will back their claims.” In a letter dated July 3, 2019, Mr. Everitt stated that no additional records that would be potentially responsive to Mr. Pehrson’s original records request have been identified at this time.
Mr. Pehrson filed an appeal with the State Records Committee (“Committee”) on July 15, 2019. After hearing oral argument and testimony on November 14, 2019, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA states 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 subject to Utah Code §§ 63G-2-203 & -204. All records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). After receiving a request for a record, a governmental entity shall notify the requester if it does not maintain the record requested and provide, if known, the name and address of the governmental entity that does maintain the record. Utah Code § 63G-2-204(4)(b)(iii).
2. In the present case, Alex Goble, Deputy San Juan County Attorney, argued that Respondent had turned over all records in the county’s possession to Mr. Pehrson. However, based testimony before the Committee, the Committee was unconvinced that all e-mail accounts had been searched to find all records responsive to Mr. Pehrson’s records request.
3. Accordingly, the Committee believes that an independent search of all accounts including specifically the Commissioner’s and HR director’s e-mail accounts by the county’s Information Technology specialists, may disclose more responsive records. Therefore, Respondent is directed to do another search to determine if records responsive to Mr. Pehrson’s request exist, and provide to Mr. Pehrson also such records that are considered public records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kelly Pehrson, is hereby GRANTED.
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.
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).
Entered this 25th day of November 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RILEY BOOKER, Petitioner, v.
DAVIS COUNTY. Respondent.
DECISION AND ORDER
Case No. 19-46
By this appeal, Petitioner, Riley Booker, seeks access to records allegedly held by Respondent, the Davis County.
FACTS
In a letter dated July 19, 2019, legal counsel for Mr. Booker made a request for records from the Davis County Jail pursuant to the Government Records Access and Management Act (“GRAMA”). Counsel requested video and audio recordings from the booking room of the Davis County Jail Building (“Jail”) on July 16, 2019. In a letter dated July 26, 2019, the records officer for the Jail stated that the recording could not be released because it revealed security measures and therefore, the recording was not subject to GRAMA pursuant to Utah Code § 63G-2-106.
In a letter dated July 30, 2019, Legal Counsel for Mr. Booker filed an appeal with Davis County disagreeing with the classification of the video as revealing security measures and stated that similar videos of the Jail booking room had been released by Davis County in the past. On August 13, 2019, Randy B. Elliott, Davis County Commissioner, affirmed the decision of the Jail’s records officer stating that video recordings of the Jail booking area “reveal certain security measures and protocols” and therefore the records “are not subject to GRAMA” pursuant to Utah Code § 63G-2-106.
On August 30, 2019, Mr. Booker 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. 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. Records of a governmental entity or political subdivision regarding security measures designed for the protection of persons or property, public or private, are not subject to GRAMA. Utah Code § 63G-2-106. These records include security plans, security codes, combinations, passwords, passes, keys, security procedures, and building and public work designs to the extent that they relate to the ongoing security measures of a public entity. Utah Code § 63G-2-106(1-5).
3. Legal counsel for Davis County argued that release of the video of the Jail booking area would allow someone “to determine operating procedures, number of staff at any given time inside a secure correctional facility and dissect this video to create any sort of plan to cause harm to those working inside the facility.” Legal counsel for Mr. Booker argued that the video was from a fixed camera of the booking room which did not reveal anything more than what was contained within the booking room. Counsel claimed that the request was restricted only to the booking of one individual during a fixed 15-30 minute period of time on July 16, 2019. Counsel contended that release of the video would not disclose any “security procedures” and the fact that Davis County has released similar videos in the past shows that there has not been a concern previously about security procedures being disclosed.
4. After having reviewed the written and oral evidence presented by the parties, the Committee finds that Davis County misclassified the requested video as a record not subject to GRAMA pursuant to Utah Code § 63G-2-106. The Committee did not find Davis County’s arguments persuasive that release of the recording would jeopardize security procedures in part because Davis County had released similar videos in the past. Accordingly, the recording should be considered an initial contact report and therefore, should also be released as a public record pursuant to Utah Code § 63G-2-301(3)(g). See also, Phillips v. W. Jordan Police Dept., State Records Comm. Case No. 14-04 (Mar. 28, 2014).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Riley Booker, is GRANTED.
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.
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 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
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
UNIFIED POLICE DEPARTMENT OF GREATER SALT LAKE. Respondent.
DECISION AND ORDER
Case No. 20-09
By this appeal, Petitioner, Paul Amann, seeks to have access to records allegedly held by Respondent, the Unified Police Department of Greater Salt Lake.
FACTS
On or about October 30, 2019, Mr. Amann submitted a records request to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Amann requested all records of communications regarding a specified report of Respondent and all records or communications to and from the Utah Attorney General’s Office (“AG’s Office”) regarding the report. Mr. Amann also included the names of two specific individuals at the AG’s Office regarding the requested communications. No response was provided by Respondent to Mr. Amann’s records request, so in a letter dated November 21, 2019, Mr. Amann filed an appeal with the Chief Administrative Officer for Respondent.
After no response had been received by Mr. Amann from Respondent regarding his appeal to the Chief Administrative Officer, Mr. Amann filed an appeal on December 11, 2019 with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 9, 2020, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies a person has the right to inspect a public record free of charge, and a right to take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203, and -204.
2. Legal counsel for Respondent stated during the hearing that he believed Respondent’s search of its records was “thorough and came up with nothing” responsive to Mr. Amann’s records request, but Respondent was willing to do another search for records and then if any records are found, provide them to Mr. Amann. Counsel further stated that Respondent would be willing to provide a Notice of Compliance with documentation that after a thorough search, any and all responsive records have been provided to Mr. Amann.
3. Accordingly, the Committee finds that it is appropriate to issue an Order to require Respondent to conduct a thorough records search to determine whether or not all responsive records have been provided to Mr. Amann, and if any public records are found, provide them to Mr. Amann as provided in GRAMA.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul Amann, is GRANTED.
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.
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 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 21st day of January 2020.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CHAD BENNION, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 20-19
By this appeal, Petitioner, Chan Bennion, seeks access to records held by Respondent, Utah Attorney General’s Office.
FACTS
On or about September 27, 2019, Petitioner submitted a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”) to the Utah Attorney General’s Office (“AG’s Office”). Petitioner requested records regarding “costs, fees, charges, payments, etc.,” “time, costs, or billable hours,” “litigation costs, expenditures, payments” and “request[s] to confer or for consultation” related to Senate Bill 54 Elections Amendments (2014 Sessions) (“SB54”) with an updated time frame from his 2018 request. See also, Bennion v. Utah Attorney Gen.’s Office, State Records Case No. 18-35 (Sept. 24, 2018).
In an initial response dated October 11, 2019, the AG’s Office incorrectly stated that it did not have any records responsive to Mr. Bennion’s request. On November 9, 2019, Mr. Bennion appealed to the AG’s Office’s Chief Administrative Officer, asserting that during a 2018 State Records Committee hearing, the AG’s Office had indicated that it had begun tracking some information relevant to Mr. Bennion’s request. Mr. Bennion also asserted that the initial response “failed to acknowledge additional questions and requests for records.”
On November 26, 2019, Mr. Bennion’s appeal was granted in part and denied in part. Mr. Bennion was provided the requested records from the 2019 request, but the duplicative information from the 2018 request was denied.
Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on April 9, 2020 and carefully considering the requested relief of the parties, the Committee 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 § 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. In response to a request for a record, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a).
3. Based on the testimony provided in this matter, the Committee determined that there were no further records subject to Mr. Bennion’s 2019 records request. Accordingly, there is no requirement for the AG’s Office to provide records that it did not have.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Chad Bennion, is hereby DENIED.
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.
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).
Entered this 20th day of April 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH WILLIAMS, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
MORGAN COUNTY Respondent.
DECISION AND ORDER
Case No. 20-21
By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, Morgan County.
FACTS
On December 12, 2019, Mr. Gollaher made a records request to the Morgan County Government Records Access and Management Act (“GRAMA”) Specialist for “any and all records/documents from January 1, 2008 through the date of response to this request” for claims or lawsuits which resulted in a payout of $1,000 or more against the Morgan County Sheriff’s Office. After having not received a response to his records request, Mr. Gollaher filed an appeal with the Morgan County Council Chair in a letter dated January 9, 2020. After no response was provided by Morgan County, Mr. Gollaher filed an appeal with the State Records Committee (“Committee”) on February 6, 2020.
In two documents dated December 23, 2019, Mr. Gollaher made separate records requests to Morgan County for records regarding individuals who had been employed by Morgan County as the county’s Information Technology Professionals and GRAMA Specialists since June 2012. After failing to receive responses to these records requests, Mr. Gollaher filed an appeal with the Morgan County Council Chair in a letter dated January 20, 2020. After no response was provided by Morgan County, Mr. Gollaher filed a second appeal with the Committee on February 17, 2020. Since Mr. Gollaher’s appeals involve the same governmental entity, the Committee combined the two appeals. A hearing was held on May 14, 2020 where the Committee considered the written materials, testimony, and oral arguments from the parties appearing electronically before the Committee. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA states 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). GRAMA also states that the name, gender, job title, job description, and dates of employment are public records except to the extent they contain information expressly permitted to be treated confidentially. Utah Code § 63G-2-301(2)(b).
2. In regards to Mr. Gollaher’s December 12, 2019 records request, the Committee was persuaded that records regarding claims or lawsuits which resulted in a payout of $1,000 or more against the Morgan County Sheriff’s Office may exist with Morgan County’s public expense reports. Although these expense report records may contain more information than what was requested by Mr. Gollaher, Morgan County may redact the records as needed in order to provide the information requested by Mr. Gollaher.
3. The Committee is also convinced that Morgan County has records responsive to Mr. Gollaher’s request for records regarding Morgan County’s Information Technology Professionals and GRAMA Specialists. Records regarding individuals serving in these positions concerning their names, genders, job titles, job descriptions, and dates of their employment, are public records pursuant to Utah Code § 63G-2-301(2)(b).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher is GRANTED.
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.
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).
Entered this 21 day of May 2020.
BY THE STATE RECORDS COMMITTEE
KEN WILLIAMS, Chair Pro Tem State Records Committee
",Granted,2020-05-21T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 20-34
The present appeal was heard by the State Records Committee (“Committee”) on August 13, 2020 with each of the parties participating electronically. Petitioner, Patrick Sullivan, made a request for a continuance stating that he had not yet received a response from Respondent, the Utah Department of Corrections, and that he also did not have all of his materials available to him for the hearing. Counsel for Respondent did not oppose the motion. The Committee unanimously voted to continue the hearing to the next available Committee hearing date.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is CONTINUED until September 10, 2020.
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.
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).
Entered this 24 day of August 2020.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SALT LAKE LEGAL DEFENDERS ASSOCIATION, Petitioner, v.
UTAH DEPARTMENT OF PUBLIC SAFETY. Respondent.
DECISION AND ORDER
Case No. 20-39
By this appeal, Petitioner, the Salt Lake Legal Defenders Association, seeks access to records allegedly held by Respondent, the Utah Department of Public Safety.
FACTS
On or about January 9, 2020, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested numerous records relating to the Intoxilyzer 8000 used by the Utah Highway Patrol.
In a letter dated January 16, 2020, Respondent denied all but one of Petitioner’s requested items, noting that they were either protected pursuant to Utah Code § 63G-2-305(1), that they were not owned or maintained by Respondent pursuant to Utah Code § 63G-2-201 and -202, or that they were still in draft form pursuant to Utah Code § 63G-2-103.
Petitioner appealed the denial, and Respondent reiterated its position on the appeal denial. However, Respondent did attempt to facilitate Petitioner’s request by contacting the company that owned and maintained certain records, known as CMI. CMI responded by agreeing to permit the Petitioner to review the manuals at one of Respondent’s offices and take notes on the contents of the manuals for an unlimited period of time. CMI’s only restriction was that Petitioner would not be permitted to actually copy the copyrighted manuals.
Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). On August 27, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 63G-2-201(2).
2. GRAMA excludes from the definition of a record “material to which access is limited by the laws of copyright or patent unless the copyright or patent is owned by a governmental entity or political subdivision.” Utah Code § 63G-2-103(22)(b)(iv).
3. After carefully considering the arguments of the parties, the Committee finds that the requested records relating to the Intoxilyzer 8000 are not considered “records” pursuant to GRAMA because they are copyrighted materials to which access is limited by the laws of copyright. See also, Jessop v. Dept. of Corrections, State Records Case No. 14-08 (May 19, 2014). Accordingly, Respondent is not required to produce the records to Petitioner under GRAMA.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Salt Lake Legal Defenders Association is hereby DENIED.
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.
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).
Entered this 8 day of September 2020.
BY THE STATE RECORDS COMMITTEE
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH LOCAL GOVERNMENTS TRUST. Respondent.
DECISION AND ORDER
Case No. 20-47
By this appeal, Petitioners, Brady Eames, seeks access to records allegedly held by Respondent, the Utah Local Governments Trust (“ULGT”). This Decision and Order combines three appeals filed by Mr. Eames and are referenced in this opinion as Appeals 2019-110, 2019-111, and 2019-114.
FACTS
Appeal 2019-110 began as a records request made by Mr. Eames pursuant to the Government Records Access and Management Act (“GRAMA”) to ULGT on September 4, 2019. Mr. Eames requested records related to ULGT Board meetings held on August 25, 2017 and October 27, 2017. Mr. Eames requested an expedited response within five business days from ULGT. Brady Loveland, the Technical Services Manager for ULGT responded to Mr. Eames on the same day stating that his request for an expedited response had been denied and that he should “[e]xpect a response from us within 10 days according to State Statute.”
On September 19, 2019, Mr. Eames filed an appeal with Steve Hansen, Chief Executive Officer for ULGT stating that “Loveland has neglected to make a decision with respect to my inspection of such documents” within 10 business days. Mr. Eames requested a decision “expeditiously…so I may immediately inspect them.” After not receiving a response, Mr. Eames filed an appeal with the State Records Committee (“Committee”) on October 5, 2019.
Appeal 2019-111 began as a records request by Mr. Eames to ULGT’s Board on September 18, 2019. Mr. Eames requested documents relating to the Board’s Trust Advisory Committee including policies and procedures, minutes, and recordings regarding the Advisory Committee. After not receiving a response, Mr. Eames filed an appeal on October 6, 2019 with Mr. Hansen. In an e-mail dated October 6, 2019, Mr. Hansen denied Mr. Eames’ appeal.
Appeal 2019-114 involves a September 22, 2019 records request by Mr. Eames to ULGT for documents related to ULGT’s budgets from 2016 through 2019 including minutes of the Board adopting final operating and capital budgets for those years. Mr. Eames amended his records request on September 27, 2019. On September 30, 2019, Mr. Eames filed an “expedited appeal” with Mr. Hansen arguing that he should be able to inspect the records “immediately at any time during the normal business hours.” On October 8, 2019, A. Craig Hale on behalf of ULGT e-mailed a web address to Mr. Eames stating that the “final budgets you are requesting are, in fact, available online.” Mr. Eames filed an appeal with the Committee for this records request on October 9, 2019.
Because all three appeals involve the same parties, for convenience of the parties the Committee combined the three appeals into one appeal. On September 10, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). However, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
2. Regarding Appeal 2019-110, the Committee finds that Mr. Eames has not been denied access to records ULGT has in its possession and that access to some of the requested records cannot be provided because they do not exist. The Committee finds regarding Appeal 2019-111 that no records exist which can be provided by ULGT to Mr. Eames. The Committee held that Appeal 2019-114 should be denied because a governmental entity is not required to fill a person’s record request if: (1) The record requested is publicly accessible online; and (2) The governmental entity specifies to the person requesting the record where the record is accessible online. Utah Code § 63G-2-201(8)(e).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is hereby DENIED.
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.
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).
Entered this 21 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
AI-NING HSU, Petitioner, v.
UTAH DIVISION OF CHILD AND FAMILY SERVICES, Respondent.
DECISION AND ORDER
Case No. 20-12
By this appeal, Petitioner, Ai-Ning Hsu, seeks access to records held by Respondent, the Utah Division of Child and Family Services.
FACTS
On June 10, 2019, attorney Jana Dickson Tibbitts, counsel for Ms. Hsu, filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Tibbitts requested records related to specific cases regarding Protective Supervision Services and Foster Care. In a letter dated June 24, 2019, the GRAMA Administrator for the Utah Division of Child and Family Services (“DCFS”) estimated that the cost to complete the records request would be $2,987.50 because there were “over 10,000 pages of emails responsive to your request.” On July 10, 2019, Ms. Hsu filed a request with DCFS for a fee waiver claiming that releasing the documents would primarily benefit the public, she is the subject of the documents, and that the documents directly affect her legal rights.
On July 19, 2019, Ms. Hsu filed an appeal to the chief administrative officer for DCFS, Sonia Sweeney, Director of the Utah Department of Human Services (“DHS”). Ms. Hsu stated that she was “legally entitled to review the requested communications” and that the requested records “have a direct bearing on safely planning and decision making…” In a letter dated August 5, 2019, Ms. Sweeney wrote that Ms. Hsu’s appeal was based upon the two GRAMA requests dated June 10, 2019 and July 10, 2019. Ms. Sweeney noted that in regard to the June 10, 2019 request, “DCFS had fulfilled the balance of the request without charge.” In regard to the July 10, 2019 request, Ms. Sweeney stated that DCFS is going to waive the fees for the request for electronic communication as described in the first request and that notice of the date by which DCFS anticipates being able to complete her request would be sent to her.
In a letter dated July 22, 2019, the GRAMA Specialist for DCFS denied in whole or in part Ms. Hsu’s request for certain records. In a letter dated August 13, 2019, the GRAMA Administrator for DCFS gave notice that because the request is so voluminous, the work would be completed as soon as reasonably possible with all text messages provided on or before August 21, 2019 and all emails and instant messages on or before September 9, 2019. In a second letter dated August 13, 2019, the GRAMA Specialist for DCFS stated that the purpose of the “letter is to correct and clarify the letter dated July 22, 2019.” The letter clarified that some records had been provided on July 22, 2019, but there was still a partial denial regarding certain records and a full denial regarding other records.
On August 19, 2019, Ms. Tibbitts on behalf of Ms. Hsu filed a notice of appeal with Ms. Sweeney referencing the July 22, 2019 and August 13, 2019 letters from the DCFS GRAMA Specialist, and the August 13, 2019 letter from the DCFS GRAMA Administrator. An appeal dated August 22, 2019 was filed by Ms. Tibbitts on behalf of Ms. Hsu regarding the August 13, 2019 notice to extend time for fulfilling the records request. An appeal dated August 23, 2019 was filed by Ms. Tibbitts on behalf of Ms. Hsu for the second set of partial disclosures of records.
In a letter dated September 4, 2019, Ms. Sweeney addressed the August 19, 2019 appeal, stating that she was directing DCFS to redact certain records and provide them to Ms. Hsu “as soon as possible” but “no later than ten business days”. In a letter dated September 6, 2019, Ms. Sweeney addressed the August 22, 2019 appeal, finding that DCFS’s claim of extraordinary circumstances was reasonable. In a letter dated September 10, 2019, Ms. Sweeney addressed the August 23, 2019 appeal, finding that some of the information needed to remain non-public and directed DCFS to “provide new copies of some of the previously redacted text messages and copies of additional text messages, consistent with my decision, to your client as soon as possible” but “no later than ten business days”. The DCFS GRAMA Specialist provided records to Ms. Hsu with a letter dated September 11, 2019. A second letter from the DCFS GRAMA Specialist which was dated September 24, 2019, providing records based upon Ms. Sweeney’s September 10, 2019 letter.
On October 11, 2019, Ms. Tibbitts on behalf of Ms. Hsu, filed an appeal with the State Records Committee (“Committee”), stating that “Ms. Hsu continues to seek the complete records requested on June 10, 2019.” On February 21, 2020, the Committee held a hearing regarding the present appeal, and after carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are classified as private, protected, or controlled pursuant to Utah Code §§ 63G-2-302, -303, -304 and -305, are not public records pursuant to Utah Code § 63G-2-301(3)(a). Additionally, records to which access is restricted by another state statute are not public records. Utah Code § 63G-2-201(3)(b). The disclosure of a record to which access is governed by another state statute is governed by the specific provisions of that statute. Utah Code § 63G-2-201(6)(a).
Reports made under Title 62A Utah Human Services Code, Chapter 4a Child and Family Services, Part 4 Child Abuse or Neglect Reporting Requirements, as well as any other information in the possession of DCFS obtained as a result of a report, are considered private, protected, or controlled records under GRAMA, and may only be made available to those individuals or entities listed in Utah Code § 62A-4a-412(1)(a) through (n). Utah Code § 62A-4a-412(1)(e) provides that except as provided in Utah Code § 63G-2-202(10), a subject of the report, the natural parents of the child, or the guardian ad litem, may have access to reports made under Part 4 Child Abuse or Neglect Reporting Requirements, as well as other information in possession of DCFS as a result of the reports.
After considering the evidence presented to the Committee including written and oral arguments and reviewing the disputed records in camera, the Committee finds that DCFS should release reports and other information in possession of DCFS where Ms. Hsu is the subject of the report or is the natural parent of a child in the report pursuant to Utah Code § 62A-4a-412(1)(e). However, other information in the subject records not directly related to Ms. Hsu as the subject or parent of a child in the records, shall remain non-public and not be disclosed to Ms. Hsu.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ai-Ning Hsu is hereby GRANTED as outlined in this Order.
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).
Entered this 3rd day of March 2020
BY THE STATE RECORDS COMMITTEE
____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CORBIN VOLLUZ Petitioner, v.
BRIGHAM YOUNG UNIVERSITY Respondent.
DECISION AND ORDER
Case No. 20-20
By this appeal, Petitioner, Corbin Volluz, seeks to have access to records alleged to be in the possession of Respondent, Brigham Young University.
FACTS
On May 14, 2020, the parties appeared electronically for a hearing before the State Records Committee (“Committee”). Respondent argued that the requested records should be considered non-public records pursuant attorney-client privilege. See, Utah Code §§ 63G-2-305(17) & -305(18). In order to determine whether the requested records are considered non-public records pursuant to the attorney client privilege, the Committee voted to review the records in camera as allowed by Utah Code § 63G-2-403(9) and Utah Admin. Code R. 35-1-2(5).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Corbin Volluz, is CONTINUED until the June 2020 Committee hearing and Respondent, Brigham Young University, is ordered to provide the records to the Committee for in camera review.
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.
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 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 15th day of May 2020.
BY THE STATE RECORDS COMMITTEE
__________________________________________
KEN WILLIAMS, Chair Pro-Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
REGINALD WILLIAMS, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS Respondent.
DECISION AND ORDER
Case No. 17-10
By this appeal, Petitioner, Reginald Williams, seeks access to records allegedly held by Respondent, the Utah Department of Corrections (“Corrections”).
FACTS
On a form dated November 15, 2016, Mr. Williams made a request to Corrections for records pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Williams requested the “list or page one of all audits performed by [Corrections’] internal audit bureau from 2007 to present.” In a letter dated December 6, 2016, a Corrections records officer denied Mr. Williams’ request stating that the information is protected pursuant to Utah Code §§ 63G-2-305(10) and 64-13-25(2)(c). Mr. Williams filed an appeal to Corrections’ Deputy Director, Mike Haddon, which was received on December 16, 2016. In a letter dated January 11, 2017, Deputy Director Haddon affirmed the decision of the records officer.
In a letter dated January 19, 2017, Mr. Williams filed an appeal with the State Records Committee (“Committee”) which was received by the Committee on January 30, 2017. On March 16, 2017, the Committee held a hearing where the parties were allowed to present their legal arguments. After considering all arguments by the parties and reviewing all written materials, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. At the beginning of the hearing, counsel for Corrections made a Motion to Dismiss Mr. Williams’ appeal arguing that Mr. Williams failed to file a timely appeal with the Committee. Counsel claimed that Deputy Director Haddon’s failure to respond to Mr. Williams’ appeal within five business days of receipt of Mr. Williams’ notice of appeal is the equivalent of a decision affirming the access denial pursuant to Utah Code § 63G-2-401(5)(b)(i). However, the Committee found that Deputy Director Haddon’s subsequent decision to affirm the records officer’s decision by a letter dated January 11, 2017, constituted a voluntary extension of the time period by Corrections as allowed by Utah Code § 63G-2-401(5)(c). Accordingly, the Committee denied the Motion to Dismiss finding that the Committee had jurisdiction to review Mr. Williams’ appeal because his appeal was filed with the Committee within 30 days of Deputy Director Haddon’s January 11, 2017, written decision. See, Utah Code § 63G-2-403(1)(a).
2. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records to which access is restricted pursuant to another state statute are not public records. Utah Code § 63G-2-201(3)(b). The disclosure of a record to which access is governed or limited pursuant to another state statute is governed by the specific provisions of that statute. Utah Code § 63G-2-201(6)(a). GRAMA applies to records described in Utah Code § 63G-2-201(6)(a) insofar as GRAMA is not inconsistent with the state statute. Utah Code § 63G-2-201(6)(b).
3. Final audit reports are normally public “but to the extent that a record is expressly exempt from disclosure…” Utah Code § 63G-2-301(3)(q). The Department of Corrections is required to have “an audit for compliance.” Utah Code § 64-13-25(2). The reports from this audit “shall be classified as confidential internal working papers and access is available at the discretion of the executive director or the governor, or upon court order.” Utah Code § 64-13-25(2)(c).
4. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that Corrections properly classified the requested records as non-public records pursuant to Utah Code § 64-13-25(2)(c). The records are classified as “confidential internal working papers” and may not be disclosed except through the discretion of the executive director of Corrections, the Governor, or a court order.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Reginald Williams, is DENIED.
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 its 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 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 27th day of March 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN J. ONYSKO, Petitioner, v.
JORDANELLE SPECIAL SERVICE DISTRICT. Respondent.
DECISION AND ORDER
Case No. 17-19
By this appeal, Petitioner, Steven J. Onysko, seeks access to records allegedly held by Respondent, the Jordanelle Special Service District.
FACTS
On October 20, 2016, Mr. Onysko filed a request for records from the Jordanelle Special Service District (“JSSD”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested “[d]ocumentation, including but not limited to Phone Company billing records, of JSSD outgoing and incoming telephone calls for all telephones and extensions at any JSSD offices, treatment facilities, or other JSSD-associated property from August 1, 2015 to October 16, 2016.” JSSD provided 965 pages of records to Mr. Onysko, but redacted the last four digits of all phone numbers.
In a letter dated February 28, 2017, Mr. Onysko filed an appeal with Mike Petersen, Board Chair of JSSD, arguing that under GRAMA he was entitled to receive unredacted copies of the telephone records. In a letter dated March 13, 2017, Mr. Peterson denied Mr. Onysko’s appeal stating that the last four digits of phone numbers listed on the provided records had been redacted because release of the entire phone numbers would be a clearly unwarranted invasion of personal privacy pursuant to Utah Code § 63G-2-302(2)(d).
On April 11, 2017, Mr. Onysko filed an appeal with the State Records Committee (“Committee”). A hearing was held before the Committee on May 11, 2017, where the parties were allowed to present their legal arguments. After having reviewed the arguments submitted by the parties and having heard oral argument and testimony, the Committee now issues the following Decision and Order:
STATEMENT OF REASONS FOR DECISION
1. The Utah 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 private, controlled, or protected under Utah Code §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Records containing data on individuals the disclosure of which constitutes a “clearly unwarranted invasion of personal privacy” are private records if properly classified. Utah Code § 63G-2-302(2)(d).
3. JSSD claimed that when members of the public place a phone call with governmental entity, “they do not expect that the fact that they called the District will be made public knowledge…Individuals have an expectation that their phone numbers will remain private, or at least that they won’t be made public simply because they called a governmental entity.” Mr. Onysko instead argued that providing telephone records with the last four digits of the phone number redacted is “useless” and does not provide the information necessary for the public to know whether JSSD employees misused government time and resources. Mr. Onysko added that JSSD’s claim of “invasion of privacy” was instead meant “to shield culpable individuals from lawful investigation of these individuals’ conduct.”
4. After having reviewed the written arguments of the parties, hearing testimony and arguments at the hearing, the Committee finds that Mr. Onysko is entitled to receive unredacted copies of the requested records. The Committee is not convinced that release of telephone numbers of individuals making or receiving telephone calls from a governmental entity is considered a “clearly unwarranted invasion of privacy.” As stated by the Utah Supreme Court, “a record may not be withheld merely because its contents invade personal privacy. Instead, the invasion must be clearly unwarranted.” Deseret News Publ’g Co. v. Salt Lake Cty, 2008 UT 26, ¶ 33, 182 P.3d 372.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven J. Onysko, is hereby GRANTED.
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 its 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 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 22nd day of May 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LUKE RAMSETH, on behalf of SALT LAKE TRIBUNE Petitioner, v.
MURRAY CITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 17-35
By this appeal, Petitioner, Luke Ramseth, on behalf of the Salt Lake Tribune, seeks access to records held by Respondent, Murray City Police Department.
FACTS
On or about June 10, 2017, Petitioner made a records request, pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested copies of “Police reports and any related investigative documents involving Adam Lim....” On June 14, 2017, Respondent denied the request pursuant to Utah Code § 63G-2-305(10). Petitioner appealed the denial, and on July 17, 2017, after a hearing was held before the City’s Mayor pro temp, the denial was upheld.
On August 2, 2017, Petitioner then filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, now 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. Records created or maintained for criminal enforcement purposes, are protected records if properly classified by the governmental entity and if release of the records: (1) Would create a danger of depriving a person of a right to a fair trial or impartial hearing, or (2) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. See, Utah Code § 63G-2-305(10)(c) and (d).
3. Initial contact reports are normally public, but to the extent that a record is expressly exempt from disclosure, access may be restricted under Utah Code § 63G-2-305. Utah Code § 63G-2-301(3)(g). An “initial contact report” is defined by GRAMA in Utah Code § 63G-2-103(14) and may describe the date, time location, and nature of the complaint, incident, or offense, the names of victims, and the nature or general scope of the agency’s initial actions taken in response to the incident.
4. In the present case, Respondent argued that there is a pending litigation and disclosure of the records would “deprive a person of a right to a fair trial…” Respondent additionally argued that there were concerns regarding the victims and the need to maintain sensitivity on behalf of the victims.
5. After having reviewed the arguments of the parties, the Committee finds that the Murray City Police Department generally classified the records as protected pursuant to Utah Code § 63G-2-305(10)(c) and (d). The Committee was convinced that release of the records would create a danger of depriving a person of a right to a fair trial or impartial hearing, or reasonably could be expected to disclose the identity of a source who is not generally known outside of government. The Committee also finds that the first page of each of the records in question constitutes an initial Contact Report and should be provided pursuant to Utah Code § 63G-2-301(3)(g), with redaction of the victim’s name and personal identifying information.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Luke Ramseth, on behalf of the Salt Lake Tribune, is 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 its 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 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 October 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH LOCAL GOVERNMENTS’ TRUST. Respondent.
DECISION AND ORDER
Case No. 20-35
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Utah Local Governments’ Trust (“ULGT”).
FACTS
On or about April 23, 2020, Mr. Eames made two requests for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested certain accounting records (“Appeal 2020-52”) and records regarding a specific individual’s employment with ULGT over a period of 17.5 years (“Appeal 2020-60”).
In response to Appeal 2020-52, ULGT stated that only one responsive record could be found and it was provided to Mr. Eames. In response to Appeal 2020-60, ULGT notified Mr. Eames that there would be a $7,500 fee associated with providing the requested records.
Mr. Eames filed two appeals with the State Records Committee (“Committee”), which since they involve the same petitioner and respondent, have been combined into one appeal. On August 13, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a). Based upon the testimony presented, the Committee finds that all records were provided by ULGT to Mr. Eames. Accordingly, the Committee affirms the determination by ULGT that all records responsive to Mr. Eames’ request in Appeal 2020-52 have already been provided by ULGT.
2. A person has the right to inspect a public record free of charge subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1).
3. A governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Utah Code § 63G-2-201(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4).
4. A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee waiver and any determination under Utah Code § 63G-2-203(4). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
5. After having reviewed the arguments of the parties, the Committee finds that ULGT’s decision to deny Mr. Eames’ request for a fee waiver was not an unreasonable denial. Accordingly, the Committee affirms the decision of ULGT in Appeal 2020-60.
ORDER
THEREFORE, IT IS ORDERED THAT the appeals of Petitioner, Brady Eames is hereby DENIED.
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.
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).
Entered this 24 day of August 2020.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
UTAH DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.
DECISION AND ORDER
Case No. 17-36
By this appeal, Petitioner, Steven Onysko, seeks access to records held by Respondent, Utah Department of Human Resource Management.
FACTS
On or about April 17, 2017, Petitioner made a records request pursuant to the Government Records Access and Management Act (“GRAMA”) requesting “metadata” from certain employees regarding a document purportedly authored by a specific person.
After receiving the request, Respondent conversed with the Department of Technology Services (“DTS”) regarding the request and inquired as how to get access to the requested information. DTS notified Respondent that they could provide the service of fulfilling the request, and addressed the cost associated with that service. Thereafter, Respondent notified Petitioner that, pursuant to Utah Code §63G-2-203(8)(a)(i), they would require prepayment of fees before proceeding with the request.
Petitioner then filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (“GRAMA”) specifies that “a governmental entity may require payment of past fees and future estimated fees before beginning to process a request if fees are expected to exceed $50.” See Utah Code §63G-2-203(8)(a)(i).
2. When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs under this section may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person's request; and in the case of fees for a record that is the result of computer output other than word processing, the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information for particular users. Utah Code §63G-2-203(2)(a)(i) & (iii).
3. In the present case, Respondent argued that the fees required to process the request are assessed as a service provided by the Department of Technology Services (“DTS”) and are expected to go well beyond the $50.00.
4. The Committee finds that Respondent has not been denied access to the records, and that the lowest prepayment estimate of fees in the amount of $1128.00 is not unreasonable and, therefore, upheld pursuant to Utah Code §§ 63G-2-203(2)(a)(iii) and -203(8)(a) and (b). Respondent is not required to process Petitioner’s request prior to payment of require future estimated fees.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, is DENIED.
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.
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 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 October 2017.
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN MAESE on behalf of the WASATCH CONSTABLE’S OFFICE, Petitioner, v.
WEBER STATE UNIVERSITY. Respondent.
DECISION AND ORDER
Case No. 17-43
By this appeal, Petitioner, Steven Maese on behalf of the Wasatch Constable’s Office, seeks access to records held by Respondents, Weber State University.
FACTS
On or about August 30, 2017, Mr. Maese made a records request on behalf of the Wasatch Constable’s Office pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Maese requested to “inspect or obtain copies of all records detailing FERPA directory information…for all students enrolled in [the] POST academy for the last two years.” Mr. Maese claimed that he should be allowed to have access to the records pursuant to Utah Code § 63G-2-206(1)(b), claiming that “[t]his office is the Ogden City Constable’s Office and we are charged with enforcing Ogden City’s criminal warrants as well as investigating and enforcing civil orders.”
In a letter dated September 6, 2017, Respondent’s Records Officer denied Petitioner’s request based on the determination that the records were not “necessary to a proceeding or investigation” as cited by the Petitioner in Utah Code § 63G-2-206(1)(b), and also under the Family Educational Rights and Privacy Act (“FERPA”). Mr. Maese filed an appeal with the President of Weber State University in an email sent on September 6, 2017. Charles A. Wight, President of Weber State University, upheld the Records Officer’s denial.
Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 9, 2017, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. According to GRAMA, the disclosure of an education record as defined in FERPA, 34 C.F.R. Part 99, that is also controlled or maintained by a governmental entity of the State of Utah, shall be governed by FERPA. Utah Code § 63G-2-107(2). See also, Utah Code § 63G-2-201(3)(b).
2. FERPA defines an “education record” as those records, files, documents, or other materials which contain information directly related to a student and are maintained by an educational agency or institution or by a person acting for such agency or institution. 20 U.S.C. § 1232g(a)(4)(A). Federal funds will not be made available to any educational agency that permits release of education records without: (1) The written consent of the student’s parents; or (2) The written consent from a student who has attained eighteen years of age or is attending an institution of postsecondary education. 20 U.S.C. § 1232g(b)(1) & (d).
3. The Committee is persuaded that the subject records are considered “education records” under FERPA and therefore, the disclosure or nondisclosure of the records is governed by FERPA pursuant to Utah Code §§ 63G-2-107(2) & -201(3)(b).
4. During the hearing, Mr. Maese explained that the reason for the request for the records of students enrolled in the Peace Officer Standards and Training (“POST”) academy during the past two years, was to recruit the students for potential employment with the Wasatch Constable’s Office. Respondent stated that it emailed its POST enrollees and graduates, and found that 24 of the 40 respondents indicated that they did not want to have their information shared. However, counsel for Respondent stated that for any students who were willing to give their consent to sharing their information to Petitioner, Respondent is willing to share that information with Petitioner.
5. After having reviewed the written and oral arguments of the parties, the Committee finds that Respondent appropriately determined that the requested records are considered education records under FERPA, and therefore, they cannot be disclosed unless written consent is given by the student. However, if written consent has been given by students who are the subject of the records, FERPA allows Respondent to disclose those student’s records to Petitioner.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Maese on behalf of the Wasatch Constable’s Office, is 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 its 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 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 21st day of November 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent.
DECISION AND ORDER
Case No. 18-02
By this appeal, Petitioner, Steven Onysko, seeks access to records held by Respondent, Utah Department of Environmental Quality.
FACTS
On or about August 17, 2018, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “…access to view all computer metadata pertaining to an electronic document created and disseminated from DEQ-controlled computer facilities, purportedly by [a] DEQ employee…”
After receiving the request, Respondent contacted their contracted mandated provider for technology services, the Division of Technology Services (“DTS”) to determine if and how Mr. Onysko’s request could be met. DTS provided an estimated cost to perform the work, and on or about August 23, 2017, Respondent notified Mr. Onysko that prepayment of the estimated amount would be required before proceeding with his request. On or about August 30, 2017, Mr. Onysko appealed to the Respondent’s Chief Administrative Officer, and on September 14, 2017, the Chief Administrative Officer affirmed the decision requiring prepayment of the anticipated costs.
Mr. Onysko filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on January 11, 2018, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. After having reviewed the written and oral arguments of the parties, the Committee learned that the Respondent significantly lowered the fee and finds that the Respondent’s denial of the Petitioner’s request for a fee waiver was not unreasonable. The Committee is not convinced that releasing the records primarily benefits the public rather than Petitioner, that Petitioner’s legal rights are directly implicated by the information in the records, or that Petitioner is impecunious.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, is DENIED.
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.
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 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 January 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KELLY JAMES on behalf of PROLETARIAT-WATCH, Petitioner, v.
KANE COUNTY HOSPITAL SPECIAL SERVICE DISTRICT. Respondent.
DECISION AND ORDER
Case No. 17-31
By this appeal, Petitioner, Kelly James, on behalf of Proletariat-Watch, seeks access to records allegedly held by Respondents, Kane County Hospital Special Service District.
FACTS
On or about June 6, 2017, Mr. James made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. James requested the Kane County Hospital Chief Executive Officer’s (CEO) salary from 2014 to 2016. On or about June 13, 2017, the Respondent denied Mr. James’ request stating that the records were protected, Mr. James appealed the denial, and on July 12, 2017, the Chief Administrative Officer affirmed the denial.
Mr. James filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 14, 2017, 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 § 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. Utah Code § 63G-2-301(2)(b) states that “the name, gender, gross compensation, job title, job description, business address, business email address, business telephone number, number of hours worked per pay period, dates of employment, and relevant education, previous employment, and similar job qualifications of a current or former employee or officer of the governmental entity...” are public records.
3. In the present case, the Respondent argued that disclosure of the records would create a competitive disadvantage, and that the records were protected and are records that may be kept protected for reasons set forth in Utah Code § 63G-2-305.
4. After hearing testimony and reviewing the parties' arguments, the Committee finds there are no provisions in Utah Code § 63G-2-305 that support the Respondent’s arguments. Accordingly, the Committee holds that records disclosing the gross compensation of the Kane County Hospital CEO are public records pursuant to Utah Code § 63G-2-301(2)(b).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kelly James on behalf of Proletariat-Watch, GRANTED.
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 its 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 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 25th day of September 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WANDA AMANN, Petitioner, v.
UTAH EXECUTIVE BRANCH ETHICS COMMISSION, Respondent.
ORDER OF CONTINUANCE
Case No. 17-39
By this appeal, Petitioner, Wanda Amann, seeks access to records held by Respondent, Utah Executive Branch Ethics Commission.
FACTS
On or about July 7, 2017, Wanda Amann (“Petitioner”), made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). The Petitioner requested information relating to the hiring of a specific person within the Utah Executive Branch Ethics Commission. On July 19, 2017, Respondent denied the request and on July 25, 2017, Petitioner appealed the initial denial. Thereafter, Respondent elected not to respond, resulting in a technical denial of the appeal pursuant to Utah Code § 63G-2-401(5)(b).
Petitioner filed an appeal with the Committee, and on October 12, 2017, a hearing was before the State Records Committee (“Committee”), where the parties were allowed to present their legal arguments. A motion was made by a Committee member to review the disputed records in camera. After a determination that the volume of records would make it difficult for the Committee to review the records during the hearing, the Committee voted unanimously to continue the hearing to a later date.
ORDER
THEREFORE, IT IS ORDERED THAT the hearing is CONTINUED to a later date to allow the Committee to properly review the disputed records.
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.
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 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 October 2017.
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MIKE ANDERSON on behalf of KSL-TV, Petitioner, v.
KAYSVILLE CITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 17-47
By this appeal, Petitioner, Mike Anderson, on behalf of KSL-TV, seeks access to records held by Respondent, Kaysville City Police Department.
FACTS
On or about July 21, 2017, Mr. Anderson made a records request on behalf of KSL-TV pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Anderson requested police body camera footage from February 12, 2017, where an individual may have been involved in an altercation (“suspect”) with police officers inside that person’s home. On July 28, 2017, Respondent denied Petitioner’s request based on the determination that the records were private because they contained “data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.” See, Utah Code § 63G-2-302(2)(d).
Petitioner filed an appeal with the chief administrative officer for Respondent pursuant to Utah Code § 63G-2-401. In a letter dated August 8, 2017, Shayne Scott, City Manager for Respondent, affirmed the decision denying the request for the body camera footage, noting that other than the suspect, “there are other family members depicted in the video, some of whom we understand to be minors, who would suffer a ‘clearly unwarranted invasion of personal privacy’ if the body cam video were to be released.”
Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on December 14, 2017, now 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. Records containing data on individuals, the disclosure of which constitutes a “clearly unwarranted invasion of personal privacy,” are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
3. Additionally, audio and video recordings created by a body-worn camera as defined in Utah Code § 77-7a-103, that record sound or images inside a home or residence, are private records if properly classified by a governmental entity except for recordings that: (1) Depict the commission of an alleged crime; (2) Record any encounter between a law enforcement officer and a person that results in death or bodily injury, or includes an instance when an officer fires a weapon; or (3) Contain an officer involved critical incident as defined in Utah Code § 76-2-408(1)(d). See, Utah Code § 63G-2-302(2)(g)(i), (ii), & (iv).
4. When a record contains both public and private information, the governmental entity is obligated to segregate the records by classification and provide access to information to which the requester is entitled. Winters v. W. Jordan City Police Dept., State Records Committee Case No. 17-28 (Aug. 21, 2017), following Utah Code § 63G-2-308. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1).
5. A review of the plain language of Utah Code § 63G-2-302(2)(g) shows a legislative intent to preserve the privacy inside a person’s residence when a body-worn camera is used by a police officer except for specifically enumerated instances provided in Utah Code § 63G-2-302(2)(g)(i-v). See also Utah Code § 63G-2-305(66), which similarly protects records of body-worn cameras recording sounds or images inside a hospital, a health care facility, a clinic of a health care provider, or a human service program. However, even though the requested police body camera footage contains information that is public pursuant to Utah Code § 63G-2-302(2)(g)(i), (ii), and (iv), it would be a clearly unwarranted invasion of personal privacy to allow personally identifiable information concerning individuals who are not the suspect or the police officers to become public. Accordingly, the requested police body camera footage is a public record, but may be released only after the private information regarding individuals who are not the suspect or the police officers involved in the incident are redacted as required by Utah Code § 63G-2-308.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mike Anderson on behalf of KSL-TV, is GRANTED insofar as stated above.
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 its 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 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 26th day of December 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EVAN JOHNSON, Petitioner, v.
SANDY CITY, Respondent.
DECISION AND ORDER
Case No. 18-05
By this appeal, Petitioner, Evan Johnson, seeks access to records held by Respondent, Sandy City.
FACTS
On or about November 8, 2017, Mr. Johnson made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Johnson requested, “legal and PR invoices for the time period of Jan 1, 2016 to present.” On the Utah Government Record Request Form, Mr. Johnson checked the box that stated, “I understand I may be responsible for fees associated with copying charges or research charges” and authorized costs up to $100.00. Mr. Johnson also checked the box that stated that he was “requesting a waiver of copy costs.” In a letter dated November 21, 2017, the City Recorder for Respondent notified Petitioner that there were no records available for the PR invoices, but would provide the remaining requested records after paying a deposit of $80.00.
Petitioner filed an appeal to Scott Bond, Chief Administrative Officer for Respondent. In a letter dated December 15, 2017, Mr. Bond affirmed the decision of the City Recorder. Petitioner was unsatisfied with the amount of the fee and filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on February 8, 2018, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. Mr. Johnson argued that he believed the fee being charged by Respondent was unreasonable. However, the Committee does not have the authority to determine the “reasonableness” of a fee charged by a governmental entity. Instead, the Committee has the authority pursuant to Utah Code § 63G-2-203(6)(a) to determine whether “there has been an unreasonable denial of a fee waiver.”
5. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Respondent did not unreasonably deny Mr. Johnson’s request for a fee waiver.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Evan Johnson, is DENIED.
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.
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 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 20th day of February 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LEE DAVIDSON, on behalf of SALT LAKE TRIBUNE Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 17-34
By this appeal, Petitioner, Lee Davidson a reporter for the Salt Lake Tribune, seeks access to records held by Respondent, Utah Attorney General’s Office (“AG’s Office”).
FACTS
In a letter dated June 21, 2017, Mr. Davidson made a records request of the AG’s Office, pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Davidson requested a “copy of the legal opinion requested by legislative leaders about the special election process” to fill the congressional seat held by Representative Jason Chaffetz. Mr. Davidson stated that Utah “House Speaker Greg Hughes says he was told that opinion was completed and signed, but not given to legislative leaders.” In a letter dated June 28, 2017, Lonny J. Pehrson, Government Records Counsel for the AG’s Office denied Mr. Davidson’s records request. Mr. Pehrson stated that the legal opinion letter (“opinion letter”) had been classified by the AG’s Office as protected pursuant to Utah Code §§ 63G-2-305(18) & -305(22).
Mr. Davidson filed an appeal with the AG’s Office’s Chief Administrative Officer, arguing that the opinion letter had been requested “to help clarify duties for special elections of the executive and legislative branches, not for a lawsuit.” Mr. Davidson also argued that the opinion letter was not a draft because “it was completed, reviewed, and signed.” In a letter dated July 17, 2017, Tyler R. Green, Solicitor General for the AG’s Office, denied the appeal, affirming the determination that the opinion letter was properly classified as protected pursuant to Utah Code §§ 63G-2-305(18) & -305(22).
Petitioner has filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties, reviewing the opinion letter in camera, and carefully considering the requested relief 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. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).
3. Drafts unless they are otherwise classified as public, are protected records pursuant to Utah Code § 63G-2-305(22). Drafts that have never been circulated to anyone other than a governmental entity, political subdivision, a federal agency, a government-managed corporation, or a contractor/private provider, are normally public. Utah Code § 63G-2-301(3)(j). Additionally, drafts that have never been finalized but were relied upon by a governmental entity carrying out action or policy, are also normally public. Utah Code § 63G-2-301(3)(k).
4. The opinion letter was written in response to a May 23, 2017, request made by the Utah Legislature. The request letter, signed by Utah Representative Gregory Hughes, Speaker of the House, and Senator Wayne L. Niederhauser, Senate President, was made pursuant to Utah Code § 67-5-1(7), which states that the duties of the Utah Attorney General include giving an “attorney general’s opinion in writing…to the Legislature…when required, upon any question of law relating to their respective offices.” The letter asked specific questions related to the process required by law to fill the potential vacancy occurring with the resignation of Rep. Chaffetz from the United States Congress. Questions in the request letter included: (1) When does a vacancy occur; (2) What is the scope of the Governor of Utah under the United States Constitution for issuing a writ of election; (3) Who has the authority to establish the election process for a vacancy; and (4) Does either the Governor or Lieutenant Governor have the authority to establish their own process for electing an individual to fill a midterm vacancy.
5. Petitioner argued that the opinion letter should not be considered attorney work product pursuant to Utah Code § 63G-2-305(18) because it was not prepared “in anticipation of litigation.” Petitioner claimed that the AG’s Office failed in its burden to establish that the opinion letter was prepared primarily for use in pending or imminent litigation.
6. The AG’s Office claimed that it clearly anticipated that quasi-judicial or administrative proceedings before the Utah State Bar might result if the opinion letter was delivered to the Legislature. Further, a lawsuit regarding the special election “was commenced while the [AG’s Office’s] legal opinion was still being drafter, and another lawsuit was filed shortly thereafter.”
7. After hearing the arguments of the parties, the Committee is not convinced that, at the time the opinion letter was prepared, the opinion letter was prepared “for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding” as is required by Utah Code § 63G-2-305(18). The evidence instead shows that the letter was drafted pursuant to a request by the Legislature through the statutory provisions of Utah Code § 67-5-1(7). Accordingly, the Committee finds that the opinion letter was incorrectly classified as “protected” by the AG’s office pursuant to Utah Code § 63G-2-305(18).
8. The AG’s Office also argued that the opinion letter could be protected as a “draft” pursuant to Utah Code § 63G-2-305(22). The AG’s Office stated that the opinion letter was “a preliminary version of a document because it was never finalized for delivery and was kept in word processing format for further editing or revision.” A paralegal was instructed to add each of the author’s electronic signatures to the document on May 26, 2017, but revisions continued after that date and a copy was printed on May 30, 2017. According to Mr. Pehrson: “No official hardcopy of the document was ever created and it was last edited and saved on June 1, 2017.” Additionally, the AG’s Office never provided a copy of the opinion letter to the Legislature due to “ethics concerns.”
9. Based upon the facts as presented by the AG’s Office, the Committee is convinced that the opinion letter was a “draft” that was never circulated outside of the AG’s office or relied upon by a governmental entity in carrying out action or policy. Accordingly, the Committee finds that the AG’s Office appropriately classified the opinion letter as protected pursuant to Utah Code § 63G-2-305(22).
10. Except as provided in Utah Code § 63G-2-406, the Committee may upon consideration and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private, controlled, or protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access. Utah Code § 63G-2-403(11)(b).
11. When considering the public interest in the opinion of the Utah Attorney General’s Office concerning the process of the election to fill the vacancy of a U.S. Congressman, and after having reviewed the opinion letter in camera, the Committee unanimously finds that the public interest favoring access is greater than the interest favoring restriction of access. Accordingly, the Committee finds that the opinion letter should be released to the public.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Lee Davidson, on behalf of the Salt Lake Tribune, is GRANTED.
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 its 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 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 October 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ALBERT CRAMER, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 17-50
By this appeal, Petitioner, Albert Cramer, seeks access to records held by Respondent, Utah Attorney General’s Office.
FACTS
On or about June 23, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested “(1) The documents created to report my concerns to Sean Reyes…; (2) Mail log for this letter; (3) Sean Reyes response or instructions to his attorney about my concerns; (4) Any other records created as a result of my concerns about AG Attorneys.” Petitioner further requested a fee waiver stating that (1) the request benefitted the public, (2) he was the subject of the record and (3) he was impecunious.
Respondent provided 465 pages of public records while withholding 56 pages of responsive records stating that they were protected under Utah Code §§ 63G-2-305(17) attorney client privilege, -305(18) attorney work product, and -305(22) draft communications. Respondent also denied Petitioner’s request for a fee waiver and assessed a fee of $100.00 for fulfilling his request. On September 5, 2017, Petitioner submitted an appeal of the decision withholding the 56 pages and his request for a fee waiver. On September 20, 2017, Chief Civil Deputy Bridget K. Romano, acting as Chief Administrative Officer for Respondent, denied Petitioner’s appeal.
Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the records, in camera, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony at a hearing held on December 14, 2017, now 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. The following records are protected if properly classified by a governmental entity: (1) Records that are subject to the attorney client privilege; (2) Records prepared for or by an attorney of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding; and (3) Drafts, unless otherwise classified as public. Utah Code §§ 63G-2-305(17), -305(18), & -305(22).
3. After review of the 56 pages in camera, the Committee determined that Respondent properly classified the records as protected records pursuant to Utah Code §§ 63G-2-305(17), -305(18), & -305(22).
4. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
5. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
6. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
7. After having reviewed the written and oral arguments of the parties related to the fee waiver request, the Committee finds that Respondent’s denial of Petitioner’s request for a waiver of the $100.00 fee was not an unreasonable denial. The Committee is not convinced that releasing the records primarily benefits the public rather than Petitioner, that Petitioner’s legal rights are directly implicated by the information in the records, or that Petitioner is impecunious.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Albert Cramer, is DENIED.
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 its 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 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 26th day of December 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
MORGAN COUNTY ATTORNEY’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 18-16
By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, the Morgan County Attorney’s Office.
FACTS
On or about February 5, 2018, Mr. Gollaher made a records request to the Morgan County Attorney’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested “[a]ll communications, billing records received and payments made to, from or concerning [a specific individual] and [an Appellate and District Case No.] from March 1, 2016 to the date of reply to this request, including but not limited to email, invoices, payment records, transmittals, etc. by and employee/official of Morgan County.” In response to the request, Respondent provided six pages of records.
In a letter dated February 26, 2018, Mr. Gollaher appealed the response to Ned Mecham, the Morgan County Council Chair and designated Chief Administrative Officer. Mr. Gollaher stated that he believed detailed records were being withheld from him, and requested that any record being withheld as privileged, “please identify that record, the date of that record, the subject matter of that record, and Mr. Farris’s presumption of privilege.” No response was given by Mr. Mecham, and Mr. Gollaher deemed the failure to provide a response to be a decision affirming the access denial pursuant to Utah Code § 63G-2-401(5)(b)(i).
Mr. Gollaher filed an appeal with the State Records Committee (“Committee”), and on June 14, 2018, a hearing was before the Committee where the parties were allowed to present their legal arguments. After reviewing all materials presented to the Committee and considering the evidence presented at the hearing, the Committee now 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. Based upon the arguments made by the parties, the Committee concludes that in order to make a determination whether Mr. Gollaher’s records request has been fulfilled, further documentation is needed including copies of records that could be responsive to Mr. Gollaher’s records request. Accordingly as agreed upon by the parties, the Committee finds that it is necessary to continue the present case to the next scheduled Committee hearing in order to allow Respondent to provide records to the Committee for an in camera review as required by Utah Admin. Code R. 35-1-2(5) (“The governmental entity must bring the disputed records to the hearing to allow the Committee to view records in camera if it deems an in camera inspection necessary.”).
ORDER
THEREFORE, IT IS ORDERED THAT the present hearing is CONTINUED to a later date to allow the Committee to properly review the disputed records.
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.
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).
Entered this _25__ day of June 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CHAD BENNION, Petitioner, v.
GOVERNOR’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 18-32
By this appeal, Petitioner, Chad Bennion, seeks access to records allegedly held by Respondent, the Governor’s Office.
FACTS
On January 22, 2018, Mr. Bennion submitted a records request with Respondent pursuant to the Government Records Access and Management Act (“GRAMA”) regarding 2014 Senate Bill 54. Mr. Bennion filed an appeal with the State Records Committee (“Committee”) on May 10, 2018 and the matter was scheduled for a hearing to be held on September 13, 2018.
On August 31, 2018, Mr. Bennion requested a postponement of the hearing. Mr. Bennion’s request for a postponement was denied by the Chair of the Committee and one other Committee member pursuant to Utah Admin. Code R. 35-1-2(12). On September 13, 2018, the Committee held a hearing and Mr. Bennion asked for a continuance of his case, stating that the parties were currently mediating the case with the Government Records Ombudsman and additional time was needed for a potential settlement. After both parties confirmed during the hearing that they were willing to have a continuance, the Committee voted to continue the present case for a period not longer than six months.
ORDER
THEREFORE, IT IS ORDERED THAT the hearing is CONTINUED for a period not longer than six months.
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.
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).
Entered this _24_ day of September 2018
BY THE STATE RECORDS COMMITTEE
___________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WANDA G. AMANN, Petitioner, v.
UTAH INDEPENDENT EXECUTIVE BRANCH ETHICS COMMISSION, Respondent.
DECISION AND ORDER
Case No. 17-45
By this appeal, Petitioner, Wanda G. Amann, seeks access to records held by Respondent, Utah Independent Executive Branch Ethics Commission (“Commission”).
FACTS
On or about July 7, 2017, Petitioner filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) with the Commission. Petitioner requested records and communications of the Commission related to the hiring, retaining, employing, or contracting of Chuck Conrad as legal counsel for the Commission. On July 19, 2017, Justin Atwater, Executive Director for the Commission, denied Petitioner’s request finding that the requested records had been classified with restricted access pursuant to Utah Code §§ 63G-2-201(3) and -201(6).
In a letter dated July 25, 2017, Paul G. Amann, husband and acting legal counsel for Petitioner, filed an appeal with the Commission arguing that the “denial is without basis” claiming that any documentation governing the hiring of Mr. Conrad should be made public and available online. In an email message dated August 8, 2017, Mr. Atwater stated that a “decision has been made to not respond to your appeal” and that “no response is equivalent to [an] affirmation of the initial access denial.” See, Utah Code § 63G-2-401(5)(b).
On August 25, 2017, Petitioner filed an appeal with the State Records Committee (“Committee”). A hearing was held by the Committee on October 12, 2017. See, Amann v. Utah Executive Branch Ethics Comm., State Records Committee Order No. 17-39 (Oct. 23, 2017). During the hearing, a member of the Committee made a motion that the hiring records should be made public pursuant to Utah Code § 63G-2-301(2)(b) because she did not believe the Commission “gets a carve out on how it hires people.” The motion passed 5-1. Thereafter, a motion was made that the remaining records were appropriately classified as “private” pursuant to Utah Code § 63G-2-301(2)(e). This motion passed 6-0. A third motion was then made to review the records in camera in order to consider whether the properly classified private records should be made public pursuant to Utah Code § 63G-2-403(11)(b). This motion passed 5-1. Since the records were not available from the Commission at the time of the hearing, a fourth motion was made to continue the hearing to a later date in order to “allow the Committee to properly review the disputed records.” See, Amann. The motion passed 6-0.
The disputed documents were later provided by the Commission to the Committee and the hearing was continued until December 14, 2017, when the Committee closed the meeting and reviewed the records in camera. During both hearings, Petitioner was legally represented by her husband Paul G. Amann. After having reviewed the written arguments of the parties, having heard the oral arguments of the parties, and having reviewed the records in camera, the Committee now 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. Records received by or generated by or for the Commission are private records “except as otherwise expressly provided in Title 63A, Chapter 14, Review of Executive Branch Ethics Complaints. Utah Code § 63G-2-302(1)(e).
3. After having reviewed all of the requested records in camera, and having reviewed Title 63A, Chapter 14, the Committee finds that all of the requested records were properly classified by the Commission as private records. Even though Utah Code § 63G-2-301(2)(b) requires certain records of a current or former employee of a governmental entity to be made public, the more specific provisions found in Utah Code § 63G-2-302(1)(e) requires the requested records to be classified as private records. An in camera review of the records showed that the requested records were records “received or generated” by the Commission and were therefore, not subject to disclosure under any provision found in Title 63A, Chapter 14. Accordingly, the Committee finds that the Commission properly classified the requested records to be private records pursuant to the plain language of Utah Code § 63G-2-302(1)(e). This finding reverses the previous motion made by the Committee on October 12, 2017, finding that the hiring records should be made public pursuant to Utah Code § 63G-2-301(2)(b). However, the Committee is able to take this action because: (1) Subsequent to the motion, the records were reviewed by the Committee in camera, and (2) The December 14, 2017, hearing was a continuation of the October 12, 2017, hearing allowing the Committee to revisit prior motions not yet memorialized in an appealable written Order and Decision of the Committee.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Wanda G. Amann, is DENIED.
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 its 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 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 26th day of December 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MINE SHAFT BREWING PC, Petitioner, v.
SUMMIT COUNTY, Respondent.
DECISION AND ORDER
Case No. 18-06
By this appeal, Petitioner, Mine Shaft Brewing PC, seeks access to records held by Respondent, Summit County.
FACTS
On or about June 26, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records and information relating to the Blue Ribbon Commission. On July 14, 2017, Respondent provided a number of records relating to the request, with some redactions and explanations for said redactions.
Petitioner was unsatisfied with the provided documents and filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on February 8, 2018, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i). In response to an appeal filed with the Committee, the Committee is authorized to: (1) Grant the relief sought, in whole or in part of a records committee appellant; or (2) Uphold the governmental entity’s access denial, in whole or in part. Utah Code § 63G-2-403(11)(a).
2. Summit County argued that all public records responsive to Petitioner’s request had been produced other than aerial maps that were brought to the Committee’s hearing. Summit County voluntarily offered to produce copies of the aerial maps to Petitioner, which would then result in all records responsive to Petitioner’s request being provided by Summit County.
3. Having reviewed Petitioner’s records request and the arguments and testimony of the parties, the Committee is convinced that Summit County has already provided to Petitioner all records that are responsive to their records request, except for aerial maps, which Respondent has agreed to provide. Therefore, the Committee cannot order Summit County to provide records to Petitioner that it does not possess.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mine Shaft Brewing PC, is DENIED.
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.
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 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 20th day of February 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KEN CROMAR, Petitioner, v.
CEDAR HILLS, Respondent.
DECISION AND ORDER
Case No. 18-19
By this appeal, Petitioner, Ken Cromar seeks access to records allegedly held by Respondent, Cedar Hills.
FACTS
On October 9, 2017, Mr. Cromar, a researcher for Cedar Hills Citizens for Responsible Government, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Cromer requested from Respondent “all public records regarding all individuals or groups who have golfed for FREE at the Cedar Hills owned golf course over the past three years…” In a letter dated October 20, 2017, the City Recorder for Respondent wrote that the “records you are requesting are not maintained in one simple format so the information requires the time of staff members to gather, sort, and compile.” On November 6, 2017, the City Recorder provided two electronic files via e-mail containing information on free rounds of golf at the Cedar Hills Golf Club.
Believing that all documents had not been provided to him, Mr. Cromar filed an appeal with Respondent on November 17, 2017. The City Recorder responded on November 20, 2017 stating that the “city does consider your GRAMA requests completed and fulfilled.” Thereafter, Mr. Cromar filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on June 14, 2018, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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, subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). However, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
2. During the hearing, the City Recorder for Respondent testified that every document responsive to Mr. Cromar’s records request which was within the custody and control of Respondent, had been provided to Mr. Cromar. The City Recorder also testified that some of the requested records concerning golfers at the golf course could not be provided because the company that kept the records (Par 9) had gone out of business.
3. After having considered the written and oral arguments of the parties, the Committee finds that all records responsive to Mr. Cromar’s records request within the custody and control of Respondent have been provided to Mr. Cromar. The Committee also finds that Respondent is not required to create any records pursuant to Utah Code § 63G-2-201(8)(a)(i).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ken Cromar, is DENIED.
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.
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).
Entered this _25__ day of June 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RAYMOND CLINTON, Petitioner, v.
TOOELE SCHOOL DISTRICT Respondent.
DECISION AND ORDER
Case No. 18-38
By this appeal, Petitioner, Raymond Clinton, seeks access to records allegedly held by Respondent, the Tooele School District.
FACTS
On or about June 13, 2018, Mr. Clinton made a records request to the Tooele School District ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Clinton had been the Varsity Baseball Coach for Stansbury High School and had been recently terminated from his position. Mr. Clinton requested all records and correspondence the Stansbury High School Principal had relating to the Stansbury High Baseball program and Mr. Clinton as the former coach.
On July 10, 2018, Respondent granted, in part, Mr. Clinton’s request and provided two records from what would have been considered a personnel file. Respondent denied the remainder of the request stating that the records were protected pursuant to Utah Code §§63G-2-305(10) and (25) and private under Utah Code §63G-2-302(2)(a). Mr. Clinton appealed the denial to the Chief Administrative Officer, Dr. Scott A. Rogers, and on July 23, 2018, Dr. Rogers denied the appeal.
Mr. Clinton filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on October 11, 2018, and carefully considering the requested relief 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. Additionally, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. An in camera review of the records shows that they may be categorized as follows: the first category consists of a personnel record of another individual; the second category consists of student statements regarding another individual; the third category consists of correspondence to the principal from parents; and category four consists of records of the school principal’s notes.
3. The record in category one (Bates #1) has been classified by Respondent as a private record pursuant to Utah Code § 63G-2-302(1)(g) (employment records concerning a current or former employee that would disclose an individual’s home address, home telephone number, social security number, insurance coverage, marital status, or payroll deductions, are private records). Although this is the correct classification and pursuant to Utah Code § 63G-2-202(1)(a)(i), GRAMA allows disclosure of a private record to “the subject of the record,” the Committee finds that Respondent is not required to disclose this record to Mr. Clinton at this time because he is not the subject of the record and it is not responsive to Mr. Clinton’s request for records about the petitioner as the former coach.
4. Records in category two (Bates #2-5) have been classified by Respondent as protected under Utah Code § 63G-2-305(10) as student witness statements and as student records are not subject to disclosure pursuant to Utah Code § 63G-2-107(2) (the disclosure of an education record as defined in the Family Educational Rights and Privacy Act…that is controlled or maintained by a governmental entity shall be governed by the Family Educational Rights and Privacy Act…”). An in camera review of the records shows that they are student statements not related to the petitioner and not responsive to the request. Moreover, they are education records, and pursuant to the Family Education Rights and Privacy Act (“FERPA”), may not be released without: (1) The written consent of the student’s parents; or (2) The written consent from a student who has attained eighteen years of age or is attending an institution of postsecondary education. 20 U.S.C. § 1232g(b)(1) & (d). Accordingly, the Committee finds that Respondent may not be required to disclose the records pursuant to the requirements of FERPA.
5. Records in category three (Bates #6-21) and category four (Bates #22-26) includes parents’ correspondence, community member correspondence, and the school principal’s notes referencing the communications. The Committee finds that these records are responsive to Mr. Clinton’s records request.
6. Records that are created or maintained for civil, criminal, or administrative enforcement purposes are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to disclose the identity of a source who is not generally known outside of government. Utah Code § 63G-2-305(10)(d). Further, records, other than personal evaluations, that contain a personal recommendation concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal privacy, or disclosure is not in the public interest, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(25).
7. After having reviewed records in categories three and four in camera, the Committee finds that these records are protected records pursuant to Utah Code §§ 63G-2-305(10)(d) and (25). The records contain names, e-mail address, addresses, phone numbers, and other references to students that make these records protected records. However, to the extent that this personal information can be redacted and any criticisms or complaints can be made public without identifiable information of the individual, Respondent should provide these records with redactions.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Raymond Clinton is 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.
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).
Entered this 26th day of October 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MCKHELYN JONES on behalf of THE UVU REVIEW, Petitioner, v.
UTAH VALLEY UNIVERSITY, Respondent.
DECISION AND ORDER
Case No. 18-13
By this appeal, Petitioner, McKhelyn Jones, on behalf of The UVU Review, seeks access to records held by Respondent, Utah Valley University.
FACTS
On or about November 2, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records regarding a specific person’s employment status, complaints/audits made against said person or the Title IX office, and the redaction of a document showing said person’s annualized base pay.
Respondent indicated that the records were private and protected pursuant to Utah Code § 63G-2-302 and -305 and issued a denial. Petitioner appealed the denial to Respondent’s Vice President of Administration and Legislative Affairs, Val Peterson. Thereafter, the denial was upheld.
Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having reviewed the records in camera and having heard oral argument and testimony on April 12, 2018, now 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. In the present case, there are eight different files that are the subject of Petitioner’s records request. At the hearing, Respondent agreed to release the records contained in File #2 based upon a reclassification of the records to be public records as allowed by Utah Code § 63G-2-307(3) (“A governmental entity may redesignate a record series or reclassify a record or record series, or information within a record at any time”). Accordingly, File #2 should be released to Petitioner, without redaction.
3. Regarding the remaining seven record files, Respondent has classified the records as either protected records pursuant to Utah Code § 63G-2-305(10)(a-d), or private records pursuant to Utah Code § 63G-2-302(2)(a).
4. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity, if release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; (2) Reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; (3) Would create a danger of depriving a person of a right to a fair trial or impartial hearing; or (4) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(a-d).
5. Records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, are generally private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a).
6. After having reviewed the written and oral arguments of the parties and having reviewed the records in camera, the Committee finds that Respondent properly classified File #1 and Files #3 through #8 as non-public records pursuant to Utah Code §§ 63G-2-305(10)(a), -305(10)(b), -305(10)(c), -305(10)(d), and/or -302(2)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, McKhelyn Jones, on behalf of The UVU Review, is 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.
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).
Entered this 23rd day of April 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NELSON BROWN, Petitioner, v.
WEBER AREA DISPATCH 911 AND EMERGENCY SERVICES, Respondent.
DECISION AND ORDER
Case No. 18-26
By this appeal, Petitioner, Nelson Brown, seeks access to records allegedly held by Respondent, the Weber Area Dispatch 911 and Emergency Services.
FACTS
On or about April 6, 2018, Petitioner made a records request to the Weber Area Dispatch 911 and Emergency Services ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “[a] phone call made by [an individual] requesting sheriffs deputies to respond to my house located at [a specific location] Monday evening, 26 February 2018 sometimes between [a specific time].” Respondent denied the request indicating that the information is classified as protected and contains “information that, if released, would jeopardize the safety of an individual.”
Petitioner appealed the denial to the Executive Director, Tina Mathieu, and on April 23, 2018, the denial was upheld pursuant to Utah Code § 63G-2-304. Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on July 12, 2018, reviewing the records in camera, and carefully considering the requested relief 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. The following records are controlled if properly classified by a governmental entity: (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. See, Utah Code § 63G-2-304(2)(a).
3. The Committee listened to the 911 recording in camera. The Committee finds that based upon the information contained within the recording, the record was properly classified by Respondent as a controlled record pursuant Utah Code § 63G-2-304(2)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nelson Brown is DENIED.
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.
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).
Entered this 23rd day of July 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
HYDE PARK CITY, Respondent.
DECISION AND ORDER
Case No. 18-45
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Hyde Park City.
FACTS
On or about September 10, 2018, Mr. Eames made a records request to Hyde Park City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested records relating to any and all documentation of the penal bonds which have been issued, any and all documentation of the oaths of office, and any and all respective agreements relating to the Utah Local Governments’ Trust (“ULGT”).
On or about September 19, 2018 Respondent mailed all available bond information to Mr. Eames. Mr. Eames was not satisfied with the response and filed an appeal to the Chief Administrative Officer. No response was provided by the Respondent, and Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on November 8, 2018, and carefully considering the requested relief 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. Additionally, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall make and maintain adequate documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities. Utah Code § 63A-12-103(4).
3. Utah Code § 10-3-819 provides that elected officials for municipalities to execute a bond with good and sufficient sureties payable to the municipality and the requirements for the bond. Any political subdivision may create and maintain a reserve fund or may jointly with one or more other political subdivisions, make contributions to a joint reserve fund “for the purpose of purchasing liability insurance to protect the cooperating subdivisions from any or all risks created by this chapter.” Utah Code § 63G-7-703(2).
4. In order to comply with the requirements of Utah Code § 10-3-819, they have a contract with ULGT pursuant to Utah Code § 63G-7-703.
5. Utah Code § 10-3-827 provides that offices of a municipality shall subscribe and file an oath of office.
6. After having reviewed all written arguments and hearing testimony presented by the parties, the Committee finds that Respondent shall provide Mr. Eames with all records of oaths of offices and records of the interlocal agreement with ULGT.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 20th day of November 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH LOCAL GOVERNMENTS TRUST, Respondent.
DECISION AND ORDER
Case No. 18-61
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Utah Local Governments Trust.
FACTS
Mr. Eames made ten records requests to Utah Local Governments Trust ("Respondent") between August 2nd and August 30th, 2018, pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested electronic access to public records related to public officials’ bonds, oaths, and interlocal ULGT records. Respondent informed Mr. Eames that the records responsive to his request would be available for inspection at the Respondent’s offices on or after specified dates in August and September of 2018, should Mr. Eames pay the applicable fees associated with producing said records. Respondent also indicated that some of the requested records do not exist.
On or about September 18, 2018, Mr. Eames filed an appeal with Steve Hansen, Chief Executive Officer with Respondent. Mr. Eames stated that he had been “constructively denied” access to and inspection of the requested records. After failing to receive a response from Respondent, Mr. Eames filed an appeal with the State Records Committee (“Committee”) on or about October 18, 2018. After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief 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 governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Hourly charges for providing a record may not exceed the salary of the lowest paid employee who, in the discretion of the custodian of the records, has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). The governmental entity may not charge for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c). A governmental entity may require payment of past fees and future estimated fees before beginning to process a request if: (1) Fees are expected to exceed $50; or (2) The requester has not paid fees from previous requests. Utah Code § 63G-2-203(8)(a).
3. Counsel for Respondent stated that in response to Mr. Eames’ records request, either the documents have already been provided to Mr. Eames or fees need to be paid by Mr. Eames in order to have access to certain documents.
4. After having reviewed all written arguments and hearing testimony presented by the parties, the Committee is persuaded that Respondent has conducted a search and is willing to provide Mr. Eames the requested records in the preferred electronic format if Mr. Eames pays the fees associated with providing the records. Accordingly, there is no issue before the Committee because there has not been a denial of the records or a denial of providing the record in a requested format. A review of the documentation also shows that Mr. Eames has not requested a fee waiver.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is DENIED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RAPHAEL CORDRAY, Petitioner, v.
UTAH SCHOOL AND INSTITUTIONAL TRUST LANDS ADMINISTRATION (SITLA). Respondent.
DECISION AND ORDER
Case No. 18-36
By this appeal, Petitioner, Raphael Cordray, seeks access to records allegedly held by Respondent, the Utah School and Institutional Trust Lands Administration.
FACTS
On or about February 1, 2018, Petitioner made a records request to the Utah School and Institutional Trust Lands Administration ("SITLA"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records pertaining to a retreat held by SITLA Board of Trustees in January 2018.
Respondent produced a number of records relating to the request but indicated that some records were withheld because they were classified as “protected” pursuant to Utah Code § 63G-2-305. Petitioner appealed the denial to Dave Ure, Director of SITLA. In response to the appeal, SITLA provided additional records by letter dated March 21, 2018, and denied other requests indicating again that they were classified as “protected” pursuant to Utah Code § 63G-2-305.
Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on September 13, 2018 and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The disclosure of a record to which access is governed or limited pursuant to another state statute is governed by the specific provisions of that statute insofar as GRAMA is not inconsistent with the statute. Utah Code § 63G-2-201(6).
2. The records that are the subject of this appeal are records associated with a closed meeting of SITLA. According to the Open and Public Meetings Act (“OPMA”), transcripts, minutes, or reports of the closed portion of a meeting of a public body are protected records if properly classified by a governmental entity except as provided in Utah Code § 52-4-206. Utah Code § 63G-2-305(32). A recording, transcript, report, and written minutes of a closed meeting are protected records under GRAMA “except that the records may be disclosed under a court order only as provided under Section 52-4-304.” Utah Code § 52-4-206(5).
3. In Chapman v. Salt Lake City Corp., State Records Case No. 17-18 (May 22, 2017), the Committee held that it “does not have the authority to release the requested records pursuant to Utah Code § 52-4-206(5).” The Committee found that there is a “Legislative intent to limit disclosure of closed meeting records only through court action, and not through the State Records Committee.” Id. Subsequent to the Committee’s decision in Chapman, the Legislature amended Utah Code § 52-4-304 to also allow “a public body to reclassify a record…as provided in Section 63G-2-307.” Utah Code § 63G-2-304(3). Utah Code § 63G-2-307 allows a governmental entity to “redesignate a record series or reclassify a record or record series, or information within a record at any time.” Utah Code § 63G-2-307(3).
4. After having considered the arguments and testimony presented by the parties, the Committee finds that it does not have the authority to order release of records associated with a closed meeting. Records associated with a closed meeting may only be released through a court order pursuant to Utah Code § 52-4-304, or through a reclassification of the records by the governmental entity pursuant to Utah Code § 63G-2-307.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Raphael Cordray is DENIED.
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.
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).
Entered this _24_ day of September 2018
BY THE STATE RECORDS COMMITTEE
___________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
SMITHFIELD CITY, Respondent.
DECISION AND ORDER
Case No. 18-60
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Smithfield City.
FACTS
On or about September 10, 2018, Mr. Eames made a records request to Smithfield City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested “to access and inspect certain opinions, interpretations and correspondences regarding penal bonds executed and filed by certain persons elected or appointed as certain officers…”
On September 25, 2018, after receiving no response from the Respondent, Mr. Eames filed an appeal to the person he believed was the Chief Administrative Officer. Again, no response was provided by the Respondent, and Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief 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. Additionally, records “to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation,” are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall “make and maintain adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities.” Utah Code § 63A-12-103(4).
3. After having reviewed all written arguments and hearing testimony presented, the Committee finds that opinions and final interpretations are public records and that the Respondent shall provide Mr. Eames with all records of such, if available.
4. Additionally, if there are any correspondence(s) related to the above, the Respondent has an obligation to classify such records, and provide Mr. Eames with all public correspondences. If any records are classified as restricted, the Respondent shall provide reasons and/or citations as to why said records are restricted.
5. If the Respondent does not have any records available that are responsive to Mr. Eames’ request, the Respondent shall formally indicate that they don’t have any responsive records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL BACON, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 19-19
By this appeal, Petitioner, Michael Bacon, seeks access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On or about February 8, 2019, Mr. Bacon made a records request to Utah Department of Corrections (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Bacon requested the “policy that governs that allows inmates to send out urine analysis to an outside independent lab to be re-tested.”
On the same day, Respondent denied the request indicating that a copy of the department policy regarding urine analysis “is available for prisoners” in the Inmate Reference Library. Mr. Bacon appealed the denial on or about February 14, 2019. Respondent’s Chief Administrative Officer upheld the denial in a letter dated March 21, 2019 noting that the requested policy “is an AP&P policy that does not apply to inmates” and that the “records do not reference you specifically”.
Mr. Bacon then made an additional records request on or about February 11, 2019 for the “policy on recalibration after each use & maintenance records of urine analysis machine dates of each calibration done between Nov. 1st 2018 to Feb 1st 2019.” On the same day, Mr. Bacon’s request was denied because the request was “not directly related to” Mr. Bacon nor was Mr. Bacon named specifically. While the request was denied, Respondent did inform Mr. Bacon that the machine is calibrated daily. Mr. Bacon appealed the denial on or about February 14, 2019, and the denial was upheld by Respondent’s Chief Administrative Officer in a letter dated March 21, 2019.
Thereafter, Mr. Bacon filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on July 11, 2019, 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 §63G-2-201(2). However, 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 with the exception of the first five record requests submitted to the governmental entity by or on behalf of an individual who is confined in a jail or other correctional facility during any calendar year requesting only a record that contains a specific reference to the individual. Utah Code §63G-2-201(10).
2. During the hearing, Respondent argued that the policy that Mr. Bacon is requesting does not reference him specifically; however, the records referencing Mr. Bacon specifically were made available to him. Respondent also informed the Committee that the policy that Mr. Bacon is requesting do not exist for an incarcerated inmate.
3. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the record does not contain a specific reference to Mr. Bacon.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Bacon, is DENIED.
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.
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).
Entered this 22nd day of July 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KARRA PORTER on behalf of UTAH COLD CASE COALITION, Petitioner, v.
BEAVER COUNTY SHERIFF’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 19-35
By this appeal, Petitioner, Karra Porter on behalf of Utah Cold Case Coalition, seeks access to records allegedly held by Respondent, the Beaver County Sheriff’s Office.
FACTS
On or about February 10, 2019, Ms. Porter made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Porter requested records relating to the murder of Karen Lee Jarvis, which occurred on or about February 8, 1998. On February 12, 2019 her request for records was denied. Ms. Porter appealed the denial of the records request and on March 28, 2019, Beaver County Sheriff Cameron M. Noel, upheld the initial denial pursuant to Utah Code § 63G-2-305(10).
On June 3, 2019, Ms. Porter filed an appeal with the State Records Committee (“Committee”) and the parties appeared before the Committee for a hearing on September 12, 2019. At the hearing, the Committee determined that the matter would need to be continued to allow for an in camera review of the records and a review of the records classification log provided by the Respondent for each of the responsive records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Karra Porter on behalf of Utah Cold Case Coalition, is CONTINUED until the next scheduled Committee hearing.
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.
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).
Entered this 23rd day of September 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS and STUDENTS FOR ANIMAL WELFARE, Petitioners, v.
UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 18-40
By this appeal, Petitioners, People for the Ethical Treatment of Animals (“PETA”) and Students for Animal Welfare (“SAW”), seek access to records allegedly held by Respondent, the University of Utah.
FACTS
On or about June 29, 2018, Petitioners made a records request to the University of Utah ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioners requested records relating to the “University of Utah’s use of animals in experimentation.” Petitioners provided a detailed description of the specific records that were being requested.
On July 16, 2018, Renee Bay, Records Coordinator for Respondent, provided a Notice of Prepayment Required form stating that “[t]he University estimates the fees associated with your request to be at least $5,000.00… [W]e are requiring prepayment of this amount before we take further action in connection with your request.” On August 13, 2018, Petitioners appealed to the Chief Administrative Officer for Respondent, arguing that public interest justifies a fee waiver. Petitioners contended that Respondent had “already squandered significant taxpayer money and betrayed the public trust by needlessly killing animals in violation of approved animal use protocols and federal law.” Petitioners further stated that Respondent “is compounding its malfeasance by demanding exorbitant fees for records that will help the public better understand how these avoidable acts of negligence and violation of federal animal welfare laws keep occurring.” In response to the appeal in a letter dated August 20, 2018, Gregory C. Thompson upheld the denial of the fee waiver.
Petitioners filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on November 8, 2018, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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, subject to Utah Code §§ 63G-203 & -204. A governmental entity shall provide a person with a certified copy of a record if the person: (1) Requesting the record has a right to inspect it; (2) Identifies the record with reasonable specificity; and (3) Pays the lawful fees. Utah Code § 63G-2-201(7).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
3. GRAMA also specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
4. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
5. Petitioners stated that they are non-profit organizations whose stated purposes are rejecting speciesism and opposing the use and abuse of animals in any way, as food, clothing, entertainment, or research subjects. Petitioners claim that it would be a public benefit to release the requested records and therefore, the fee waiver should be granted.
6. After reviewing the written materials provided to the Committee, and listening to the testimony provided by the parties, the Committee is not convinced that the $5,000.00 fee assessed by Respondent reflects estimated “actual costs” for providing the records to Petitioners. Instead, it appears that Respondent is relying upon prior requests and prior assessed fees to make their determination of what amount should be charged to Petitioners. The evidence also does not show that Respondent properly considered the factors outlined by the Utah Legislature in Utah Code § 63G-2-203(4)(a-c) in making its determination that Petitioners’ request for a fee waiver should be denied. This type of denial relying upon previous requests without considering the statutory factors is similar to the Deseret News case where the Utah Supreme Court found that a governmental entity cannot “deny access based solely on its advance categorical classification.” Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26, ¶19, 182 P.3d 372, 378.
7. The Committee finds that Petitioners have met their burden demonstrating that release of these records would primarily benefit the public rather than a person. Additionally, Respondent has not provided sufficient evidence or justifications for the fee being charged or for the denial of Petitioners’ request for a fee waiver. Accordingly, the Committee finds that Respondent’s denial of Petitioners’ request for a fee waiver was an unreasonable denial and instead should have been granted.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, People for the Ethical Treatment of Animals (“PETA”) and Students for Animal Welfare (“SAW”), is hereby GRANTED.
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.
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).
Entered this 20th day of November 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
HYDE PARK CITY, Respondent.
DECISION AND ORDER
Case No. 18-56
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Hyde Park City.
FACTS
On or about September 10, 2018, Mr. Eames made a records request to Hyde Park City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested “to access and inspect certain opinions, interpretations and correspondences regarding penal bonds executed and filed by certain persons elected or appointed as certain officers…”
On September 25, 2018, after receiving no response from the Respondent, Mr. Eames filed an appeal to the person he believed was the Chief Administrative Officer. Again, no response was provided by the Respondent, and Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief 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. Additionally, records “to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation,” are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall “make and maintain adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities.” Utah Code § 63A-12-103(4).
3. After having reviewed all written arguments and hearing testimony presented, the Committee finds that opinions and final interpretations are public records and that the Respondent shall provide Mr. Eames with all records of such, if available.
4. Additionally, if there are any correspondence(s) related to the above, the Respondent has an obligation to classify such records, and provide Mr. Eames with all public correspondences. If any records are classified as restricted, the Respondent shall provide reasons and/or citations as to why said records are restricted.
5. If the Respondent does not have any records available that are responsive to Mr. Eames’ request, the Respondent shall formally indicate that they don’t have any responsive records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANTHONY FIERRO, Petitioner, v.
SALT LAKE CITY SCHOOL DISTRICT Respondent.
DECISION AND ORDER
Case No. 19-09
By this appeal, Petitioner, Anthony Fierro, seeks access to records allegedly held by Respondent, the Salt Lake City School District.
FACTS
On January 15, 2019, Mr. Fierro filed an appeal with the State Records Committee (“Committee”), of a denial notice from the Salt Lake City School District dated December 18, 2018. The parties appeared before the Committee for a hearing on April 11, 2019. At the hearing, the parties jointly requested a continuance of the appeal in order to allow time for the parties to settle the case.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Anthony Fierro, is CONTINUED until the next scheduled Committee hearing.
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.
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).
Entered this 22nd day of April 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
Page Last Updated April 22, 2019 .
",Continuance,2019-04-22T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
GORDON THOMAS, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 19-25
By this appeal, Petitioner, Gordon Thomas, seeks access to records allegedly held by Respondent, the Utah Department of Corrections (“Corrections”).
FACTS
On or about May 28, 2019, Mr. Thomas made a records request to Corrections for mental health records relating to himself pursuant to the Government Records Access and Management Act (“GRAMA”). His request was initially denied in a letter dated June 5, 2019. Mr. Thomas filed an appeal with Corrections’ Chief Administrative Officer and after no response was given, Mr. Thomas filed an appeal with the State Records Committee (“Committee”) on July 11, 2019. On August 8, 2019, the parties appeared in person and by telephone at hearing held by the Committee. At the hearing, Mr. Thomas stated that he had not yet received a copy of the “Response to GRAMA Appeal” filed by legal counsel for Corrections, and therefore, he was not adequately prepared to argue against issues raised in Corrections’ response at the hearing. Accordingly, the parties jointly requested a continuance of the appeal hearing in order to allow Mr. Thomas adequate time to review Corrections’ response filed with the Committee.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Gordon Thomas, is CONTINUED until the next available Committee hearing.
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.
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).
Entered this 19th day of August 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
PROVIDENCE CITY, Respondent.
DECISION AND ORDER
Case No. 18-43
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Providence City.
FACTS
On or about August 10, 2018, Mr. Eames made a records request to Providence City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested records relating to any and all documentation of the penal bonds which have been issued, any and all documentation of the oaths of office, and any and all respective agreements relating to the Utah Local Governments’ Trust (“ULGT”).
In a letter dated August 13, 2018, Respondent notified Mr. Eames that the request did not meet the expedited standard, and that the request would be treated as a standard request. Respondent further indicated that they believed ULGT would be responding to the request on behalf of Providence City. Through what appears to be a miscommunication, Mr. Eames’ request was not responded to, and therefore deemed a denial. Thereafter, Mr. Eames filed an appeal to the Chief Appeals Officer.
Respondent granted, in part, Mr. Eames’ request by providing copies of oaths of office and billing statements for the bond held by Western Surety Company, responsive to his request. Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on November 8, 2018, and carefully considering the requested relief 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. Additionally, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall make and maintain adequate documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities. Utah Code § 63A-12-103(4).
3. Utah Code § 10-3-819 provides that elected officials for municipalities to execute a bond with good and sufficient sureties payable to the municipality and the requirements for the bond. Any political subdivision may create and maintain a reserve fund or may jointly with one or more other political subdivisions, make contributions to a joint reserve fund “for the purpose of purchasing liability insurance to protect the cooperating subdivisions from any or all risks created by this chapter.” Utah Code § 63G-7-703(2).
4. In order to comply with the requirements of Utah Code § 10-3-819, they have a contract with ULGT pursuant to Utah Code § 63G-7-703.
5. After having reviewed all written arguments and hearing testimony presented by the parties, the Committee finds that Respondent shall provide Mr. Eames with all records of penal bonds, all records of insurance in lieu of penal bonds, any remaining oaths of office, and records of the interlocal agreement with ULGT.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 20th day of November 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH LOCAL GOVERNMENTS TRUST, Respondent.
DECISION AND ORDER
Case No. 18-59
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Utah Local Governments Trust.
FACTS
On August 29, 2018, Mr. Eames made a records request to Utah Local Governments Trust ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested records relating to “any and all faithful performance bonds and/or indemnification bonds and/or other bonds required by any Utah law which have been acquired and filed by any elected and public officers…” Respondent’s records officer denied the request finding that there were no documents responsive to the request.
On September 18, 2018, Mr. Eames filed an appeal with Steve Hansen, Chief Executive Officer with Respondent. Mr. Eames stated that he had been “constructively denied” access to the requested records. After failing to receive a response from Respondent, Mr. Eames filed an appeal with the State Records Committee (“Committee”) on October 18, 2018. After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief 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 governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Hourly charges for providing a record may not exceed the salary of the lowest paid employee who, in the discretion of the custodian of the records, has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). The governmental entity may not charge for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c). A governmental entity may require payment of past fees and future estimated fees before beginning to process a request if: (1) Fees are expected to exceed $50; or (2) The requester has not paid fees from previous requests. Utah Code § 63G-2-203(8)(a).
3. Counsel for Respondent stated that in response to Mr. Eames’ records request, either the documents have already been provided to Mr. Eames or fees need to be paid by Mr. Eames in order to have access to certain documents.
4. After having reviewed all written arguments and hearing testimony presented by the parties, the Committee is persuaded that Respondent has conducted a search and is willing to provide Mr. Eames the requested records in the preferred electronic format if Mr. Eames pays the fees associated with providing the records. Accordingly, there is no issue before the Committee because there has not been a denial of the records or a denial of providing the record in a requested format. A review of the documentation also shows that Mr. Eames has not requested a fee waiver.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is DENIED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DOUGLAS SAGERS, Petitioner, v.
TOOELE COUNTY, Respondent.
DECISION AND ORDER
Case No. 19-12
By this appeal, Petitioner, Douglas Sagers, seeks access to records allegedly held by Respondent, Tooele County.
FACTS
On November 5, 2018, Mr. Sagers made a request to Tooele County (“County”) for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sagers requested all County records associated with the Utah Motorsports Campus. Mr. Sagers specifically requested copies of all:
County audited and unaudited financial records, budges, contracts, management agreements, leases, purchase orders, invoices for equipment, O&M, vehicles, marketing, operating supplies, restaurant furnishings and equipment, ATVS, computers, contracts and agreements entered into between Tooele County and lessees, managers, contractors, consultants, professional service providers, appraisers, and or other parties involved or retained by Tooele County to manage, assist, consult, or advise Tooele County in the operation and or sale of the Tooele County Owned Utah Motorsports Park.
Mr. Sagers also requested copies of contracts, agreements, leases, or related documents “that denote past and future financial incumbrances and or liabilities that have been or may be incurred” by the County pursuant to operations, management, and or sale of the Utah Motorsports Campus. In an e-mail dated November 21, 2018, the Tooele County Clerk/Auditor denied Mr. Sagers’ records request stating that all of the requested records are protected records pursuant to Utah Code § 63G-2-305(6) because the sale of the Utah Motorsports Campus was still pending and release of these records could impair the sale of the facility.
Mr. Sagers filed an appeal to the Tooele County Commission through a letter dated January 16, 2019. Mr. Sagers argued that the requested records were public despite the sale of the Utah Motorsports Campus because the records were considered public records during the time Tooele County owned the property. Counsel for the County responded to Mr. Sagers through a letter dated February 15, 2019, denying the appeal on behalf of the County stating that “the County is not the holder of the records you request.” Counsel further stated that although “the County has the contractual right to access the records, it does not possess them and, therefore, it cannot provide them to you.” Counsel added that if “in the future the County does possess the records, then the County will provide them to you.”
Mr. Sagers filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on May 9, 2019, and carefully considering the arguments of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every person has the right to inspect a record free of charge, and the right to take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1) (2018). A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2).
2. A “record” means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical for or characteristics: (1) That is prepared, owned, received, or retained by a governmental entity or political subdivision; and (2) Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a).
3. The following records are normally public subject to any exemptions from disclosure as expressly restricted in Utah Code §§ 63G-2-302, -304, or -305: (1) Records documenting a contractor’s or private provider’s compliance with the terms of a contract with a governmental entity; (2) Records documenting services provided by a contractor or a private provider to the extent the records would be public if prepared by the governmental entity; (3) Contracts entered into by a governmental entity; and (4) Any account, voucher, or contract that deals with the receipt or expenditure of funds by a governmental entity. Utah Code § 63G-2-301(3)(b-e).
4. After reviewing the written documentation provided to the Committee, and hearing arguments and evidence presented by the parties, the Committee is persuaded that Tooele County is the holder of the requested records and has the ability to provide access/copies of the records under GRAMA. The County stated in its February 15, 2019 response that it has access to the requested records. Simply because a governmental entity does not physically possess a record does not obviate the governmental entity’s obligation to provide access/copies of a record it legally owns to a records requester even though the records are in the possession of a non-governmental entity. The Committee also finds that many if not all of the requested records should be classified as public records pursuant to Utah Code § 63G-2-301(3)(b-e). Accordingly, the Committee finds that the County should provide Mr. Sagers with copies of the requested records subject to any exemptions from disclosure as expressly restricted in Utah Code §§ 63G-2-302, -304, or -305. See, Utah Code § 63G-2-301(3).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Douglas Sagers, is hereby GRANTED.
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.
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).
Entered this 17th day of May 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UTAH NEWS NOW, Petitioner, v.
GOVERNOR’S OFFICE OF ECONOMIC DEVELOPMENT, Respondent.
DECISION AND ORDER
Case No. 19-27
By this appeal, Petitioner, Utah News Now, seeks access to records allegedly held by Respondent, the Governor’s Office of Economic Development (“GOED”).
FACTS
On November 9, 2018, GOED received a records request pursuant to Utah’s Government Records Access and Management Act (“GRAMA”) from “UtahNewsNow.” The request stated that “I understand Josh romney (sic) is a member of [GOED’s] team” and requested “documents related to Josh Romney…in electronic form via email attachment.” The request provided an address of “222 S. Main Street” Salt Lake City, Utah, a daytime phone number, and an e-mail address “utahnewsnow@[...].com.”.
An e-mail exchange began between Aimee Edwards, Director of Strategic Outreach and Media Relations for GOED and the requester. On October 8, 2018, Ms. Edwards asked that the requester “fill out the detailed form attached. This will help us with the details of the request.” The requester responded by e-mail on November 18, 2018 stating:
I don’t understand. You have retained legal counsel to prevent the release of basic public information? Is this typical for all GRAMA request[s] or only request[s] involving people named Romney? Is there some issue or theory of law you are citing for the refusal to produce the documents?
In response, Ms. Edwards wrote via e-mail that it was “standard protocol to engage our legal counsel in all GRAMA requests as to ensure we are correctly following statute.” Ms. Edwards further wrote that there were “no issues,” but requested “per the statute” a name and a mailing address and “I will complete the request.” After the requester stated that adequate information had been provided for the records request, Ms. Edwards stated in an e-mail dated April 16, 2019 that “[w]e’ve attempted to reach out to the phone number you provided without success and the address appears to be incorrect.” Ms. Edwards further stated that “we have verified that there is no organization in the state of Utah with the name you provided.”
In an e-mail dated April 22, 2019, the requester appealed to the chief administrative officer of GOED. In a letter dated May 1, 2019, Q. Val Hale, Executive Director for GOED denied the requester’s appeal stating that: (1) The appeal was untimely; (2) The records request lacked reasonable specificity; and (3) The appeal was not legally sufficient because Utah News Now is not an entity registered as a business organization in Utah, and the mailing address and phone number were “not a valid means of contacting you.”
On May 22, 2019, Utah News Now filed an appeal with the State Records Committee (“Committee”). On August 8, 2019, a hearing was held before the Committee where the Petitioner was represented by a person appearing by telephone and legal counsel for GOED appeared in person. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Pursuant to GRAMA, every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1) (2018).
2. A person making a request for a record shall furnish the governmental entity with a written request containing: (1) The person’s name, mailing address, and daytime telephone number, if available; and (2) A description of the record requested that identifies the record with “reasonable specificity.” Utah Code § 63G-2-204(1) (2018).
3. Mr. Hale stated in his May 1, 2019 letter, that Petitioner’s appeal was untimely because an appeal to the chief administrative officer should have been filed sometime in December 2018. Utah Code § 63G-2-401(1)(a) states that a requester “may appeal an access denial to the chief administrative officer of the governmental entity by filing a notice of appeal with the chief administrative officer within 30 days after”: (1) The governmental entity sends a notice of denial under Utah Code § 63G-2-205; or (2) The record request is considered denied under Utah Code § 63G-2-204(9) if that subsection applies. Utah Code § 63G-2-401(1).
4. A review of the e-mail exchanges between the requester and representative of GOED shows that the initial request was never denied by GOED. Ms. Edwards requested more information from the requester with the purpose of providing the requested records to the requester. In an e-mail dated April 18, 2019, the requester stated that “I have also never received a rejection letter.”
5. It also appears from the record before the Committee that the requester appealed to GOED’s chief administrative officer after being dissatisfied with the responses from Ms. Edwards’ and GOED’s legal counsel in April 2019. Accordingly, the Committee finds that Petitioner filed a timely appeal with the chief administrative officer of GOED as required by Utah Code § 63G-2-401(1). Further, Petitioner’s appeal with the Committee on May 22, 2019 was also timely because it was filed with the executive secretary of the Committee within 30 days after the date of issuance of the decision being appealed which was dated May 1, 2019. See, Utah Code § 63G-2-403(1)(a).
6. During the hearing, the person representing the Petitioner clarified that he was seeking uniquely created records by Josh Romney in his official capacity while at the GOMB. The Committee finds that with this clarification, Petitioner’s request was reasonably specific as required by Utah Code § 63G-2-204(1).
7. GRAMA states 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, and a “person” making a request for a record shall furnish the governmental entity with a written request containing the “person’s name, mailing address, and daytime telephone number,” if available. See, Utah Code § 63G-2-201(1) (2018) & -204(1) (2018). GRAMA requires a defines a “person” as an individual, a nonprofit or profit corporation, a partnership, a sole proprietorship, other type of business organization, or any combination acting in concert with one another. Utah Code § 63G-2-103(17).
8. When the person on the telephone representing the Petitioner was asked where “Utah News Now” was incorporated, he said it was “outside of Utah” but refused to specify which state Utah News Now was located. No evidence was presented of any business activities of Utah News Now other than the present records request. Additionally, GOED was unable to contact the requester through the phone number and/or address provided by the requester. Accordingly, the Committee finds that insufficient evidence was presented to show that “Utah News Now” is a “person” as defined by Utah Code § 63G-2-103(17), having the right to make a records request to inspect public records as required by Utah Code § 63G-2-204(1). See also Jordanelle Special Services District v. Office of the Utah State Auditor, State Records Comm. Case No. 16-02 (Jan. 16, 2016).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Utah News Now, is hereby DENIED.
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.
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).
Entered this 19th day of August 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 18-57
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, the Utah Department of Corrections.
FACTS
On or about August 12, 2018, Mr. Sullivan made a records request to the Utah Department of Corrections ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested, “[a]ll incident reports, initial contact reports, IR-1, IR-2, etc. from 6-1-18 to present, up to $8.00 worth.”
On or about August 22, 2018, Respondent granted a portion of the request, providing 3 pages of records. Records classified as protected drafts were not provided at that time. Mr. Sullivan appealed the response stating that he was told that there was another record available regarding Introduction of Contraband.
On or about September 6, 2018, Respondent received three additional GRAMA requests, all enclosed in one envelope, from Mr. Sullivan. Two of these requests were denied because Mr. Sullivan had already received records in response to four GRAMA requests during the year.
On September 7, 2018, the Deputy Director responded to Mr. Sullivan indicating that two other incident reports were finalized after the initial request. Both records were provided to Mr. Sullivan at no charge. Mr. Sullivan filed a second appeal objecting to redactions that were made and indicating that additional records should be provided.
On or about September 19, 2018, Mr. Sullivan appealed the decision to limit him to five GRAMA requests per year, arguing Respondent abused its discretion.
On or about October 15, 2018, the Deputy Director stated that the redactions were no longer necessary and revised the records that were provided. The Deputy Director denied the remainder of the appeal, and also noted that Mr. Sullivan had received additional records under GRAMA which brought his total number of requests to five for the calendar year.
Thereafter, Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on December 13, 2018 now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies “every 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, subject to Utah Code §§ 63G-2-203 & -204.”
2. “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(9)(a). However, this restriction does not apply to: (1) The first five record requests submitted to the governmental entity by or in behalf of an individual described in -201(9)(a) during any calendar year; or (2) A record request that is submitted by an attorney of an individual described in -201(9)(a). Utah Code § 63G-2-201(9)(b).
3. Counsel for Respondent argued that pursuant to Utah Code § 63G-2-201(9), a governmental entity is not required to respond to an inmate’s request after an inmate submits five requests in a calendar year. Respondent further argued that this matter was a policy argument but noted that Respondent still responds to every request that is received.
4. After having reviewed the written arguments of the parties and considering all evidence presented at the hearing, the Committee finds that Respondent was not required to respond to Mr. Sullivan’s records request based upon the plain language of Utah Code § 63G-2-201(9). The Committee is persuaded that: (1) Mr. Sullivan is currently confined in a jail or other correctional facility; and (2) Mr. Sullivan has made at least five records requests of which he is the individual described in -201(9)(a) within the calendar year. Accordingly, the Committee upholds Respondent’s decision to not respond to Mr. Sullivan’s records requests and not provide records responsive to Mr. Sullivan’s requests. Additionally, the Committee also finds that a Respondent shall “treat a request for multiple records as separate record requests and respond sequentially to each request”. Utah Code § 63G-2-204(6)(c). Further, the weighing provision found in Utah Code § 63G-2-403(9) does not apply in the present case because a governmental entity is not required to respond to a records request if the conditions outlined within Utah Code § 63G-2-201(9) have been satisfied.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is hereby DENIED.
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.
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 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 22nd day of December 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CHAD BENNION, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE Respondent.
DECISION AND ORDER
Case No. 19-10
By this appeal, Petitioner, Chad Bennion, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On January 22, 2018, Mr. Bennion made a records request to the Utah Attorney General’s Office ("AG’s Office"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Bennion requested all records demonstrating costs, fees, charges or payment, incurred by the AG’s Office in any litigation regarding Senate Bill 54 (2014). In a letter dated February 2, 2018, Lonny J. Pehrson, Government Records Counsel for the AG’s Office, wrote that the only responsive records were eight pages of invoices for litigation expenses related to SB 54. Mr. Pehrson added that the AG’s Office “did not create and does not maintain any other records responsive to your request.”
On March 4, 2018, Mr. Bennion filed an appeal with the AG’s Office stating that “[w]hile I do appreciate the records provided, I have reason to think and believe the office may have additional records responsive to my request.” In a letter dated March 12, 2018, Tyler R. Green, Solicitor General for the AG’s Office, stated that an additional four pages of records responsive to Mr. Bennion’s records request had been found and would be provided to Mr. Bennion, stating that it “appears these records were inadvertently overlooked in our original search. We regret the oversight.” Mr. Green further stated that the AG’s Office “has now provided all records we have located in response to your request…”
On April 13, 2018, Mr. Bennion filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on April 11, 2019, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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 subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
2. In the present case, Mr. Bennion argued that the AG’s Office was required to follow the Utah Rules of Professional Conduct Rule 1.5(b) which states in part that the scope of attorney representation and the basis or rate of the fee and expenses for which the client will be responsible “shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.” Mr. Bennion contended that Rule 1.5(b) required the AG’s Office to detail the basis of the fees and expenses the office incurred defending S.B. 54.
3. Mr. Pehrson, legal counsel for the AG’s Office, argued that all records responsive to Mr. Bennion’s records request had been provided to him. Mr. Pehrson stated that prior to the implementation of Internal Service Fund billing within the AG’s Office on July 1, 2018, the office “did not separately track such information for this type of litigation, which largely explains the limited number of responsive records found.”
4. After having considered the oral and written arguments of the parties, the Committee finds that based upon the evidence presented by the AG’s Office, all records responsive to Mr. Bennion’s records request have been provided to Mr. Bennion. The Committee is persuaded by the AG’s Office’s contention that generally these types of billing records were not created by the AG’s Office prior to July 1, 2018.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Chad Bennion is DENIED.
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.
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).
Entered this 22nd day of April 2019
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
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”).
FACTS
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.
ORDER
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.
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).
Entered this 23rd day of September 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
UNIFIED POLICE DEPARTMENT OF GREATER SALT LAKE, Respondent.
DECISION AND ORDER
Case No. 19-41
By this appeal, Petitioner, Paul Amann, seeks access to records allegedly held by Respondent, Unified Police Department of Greater Salt Lake.
FACTS
In 2019, Mr. Amann made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Amann requested records relating to an investigation performed by Detective Dan Child “as referenced in an email dated June 12, 2017 at 8:15 a.m. from AG ICAC agent Alan White.” The investigation purportedly involved “‘an envelope that as mailed to [a specific person] in August 2015.’”
On or about June 19, 2019, the records request was denied and Mr. Amann appealed the denial of the records request. No response by the Respondent was provided. Thereafter, Mr. Amann filed an appeal with the State Records Committee (“Committee”). The parties appeared before the Committee for a hearing on November 14, 2019. At the hearing, the parties asked that all briefs filed with the Committee should be withdrawn including the Notice of Non-Compliance, and requested a continuance of the matter to allow more time to potentially settle the matter. Further, the parties stated that they were working together towards having an agreed upon a protective order regarding the release of the records. The Committee found that the matter should be continued in order to allow the parties to have additional time to come to an agreement.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul Amann, is CONTINUED until the December 12, 2019 Committee hearing.
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.
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).
Entered this 25th day of November 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
MILLVILLE CITY, Respondent.
DECISION AND ORDER
Case No. 18-54
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Millville City.
FACTS
On or about September 10, 2018, Mr. Eames made a records request to Millville City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested “to access and inspect certain opinions, interpretations and correspondences regarding penal bonds executed and filed by certain persons elected or appointed as certain officers…”
On September 25, 2018, after receiving no response from the Respondent, Mr. Eames filed an appeal to the person he believed was the Chief Administrative Officer. Again, no response was provided by the Respondent, and Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief 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. Additionally, records “to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation,” are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall “make and maintain adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities.” Utah Code § 63A-12-103(4).
3. After having reviewed all written arguments and hearing testimony presented, the Committee finds that opinions and final interpretations are public records and that the Respondent shall provide Mr. Eames with all records of such, if available.
4. Additionally, if there are any correspondence(s) related to the above, the Respondent has an obligation to classify such records, and provide Mr. Eames with all public correspondences. If any records are classified as restricted, the Respondent shall provide reasons and/or citations as to why said records are restricted.
5. If the Respondent does not have any records available that are responsive to Mr. Eames’ request, the Respondent shall formally indicate that they don’t have any responsive records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TAYLOR STEVENS on behalf of the SALT LAKE TRIBUNE, Petitioner, v.
GRANTSVILLE CITY, Respondent.
DECISION AND ORDER
Case No. 19-08
By this appeal, Petitioner, Taylor Stevens, a reporter for the Salt Lake Tribune, seeks access to records held by Respondent, Grantsville City.
FACTS
On or about November 19, 2018, Ms. Taylor made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Taylor requested, “[a]ny and all documents and final reports pertaining to the outside investigation into Mayor Brent Marshall’s behavior.”
In a letter dated December 3, 2018, Christine Webb, Grantsville City Recorder denied Petitioner’s request indicating that the records were designated as protected pursuant to Utah Code § 63G-2-305(17) because an outside attorney was hired to complete the investigation. Ms. Taylor appealed the denial, and in an email dated December 17, 2018, the denial was upheld by Respondent.
Ms. Taylor filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on March 14, 2019, carefully considering the requested relief of the parties, and reviewing the records in camera, 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. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity, if release of the records reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(d).
3. Records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, are generally private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a).
4. In the present case, Respondent classified the records as protected pursuant to Utah Code §§ 63G-2-305(17) (records that are subject to the attorney client privilege), and –305(18) (records prepared for or in anticipation of litigation or a judicial, quasi-judicial, or administrative proceeding), in addition to classifying them as protected pursuant to -305(10).
5. After having reviewed the written and oral arguments of the parties, the Committee finds that Respondent improperly classified the records as protected records pursuant to Utah Code §§ 63G-2-305(17) and –305(18). See, S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, 200 P.3d 643. Simply because the work was done by attorneys does not automatically qualify the records to be considered protected records pursuant to §§ 63G-2-305(17) and -305(18).
6. However, the Committee finds that Respondent properly classified the records as protected records pursuant to Utah Code § 63G-2-305(10)(d), and also finds that the records should be considered non-public records and classified as private records pursuant to Utah Code § 63G-2-302(2)(a) because the Mayor is an employee of Respondent.
7. However, Utah Code § 63G-2-403(11)(b) allows the Committee upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private or protected “if the public interest favoring access is greater than or equal to the interest favoring restriction of access.”
8. After having reviewed the requested records in camera, the Committee finds that based upon Utah Code § 63G-2-403(11)(b), Respondent should release the requested records to Petitioner subject to redactions of any information that would reasonably be expected to disclose the identity of a source who is not generally known outside of government or disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. See, Utah Code § 63G-2-305(10)(d). Since the subject of the request is the Grantsville City Mayor, the Committee finds that the public interest in the records outweighs the interest favoring restriction of access subject to the above stated redactions.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Taylor Stevens on behalf of the Salt Lake Tribune, 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.
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).
Entered this 25th day of March 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
OZWALD BALFOUR, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 19-24
By this appeal, Petitioner, Ozwald Balfour, seeks access to records held by Respondent, Utah Department of Corrections (“Corrections”).
FACTS
On or about April 12, 2019, Corrections received Mr. Balfour’s request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Balfour requested records relating to himself including notes, assessments, reports, case action plans, post-conviction reports, and communications.
On or about April 12, 2019, Corrections granted in part Mr. Balfour’s request, but denied his request for F-track and O-track records because it was “too vague.” On May 2, 2019, Mr. Balfour submitted a revised request and a second denial was sent to Mr. Balfour indicating that O-track “has many, many documents from many departments” requiring Mr. Balfour to be more specific.
On June 6, 2019, Mr. Balfour appealed the denial. Corrections’ Deputy Director James Hudspeth, denied Mr. Balfour’s appeal finding that the request lacked specificity. Thereafter, Mr. Balfour filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on August 8, 2019, carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with “reasonable specificity.” Utah Code § 63G-2-204(1)(b) (2018).
2. After having reviewed the written and oral arguments of the parties, the Committee finds that Mr. Balfour’s request lacked reasonable specificity. The Committee agrees with Corrections’ argument that the request is for all records contained in multiple databases, does not sufficiently specify which record he is requesting, and without a more specific description of his records, Corrections cannot fulfill his request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ozwald Balfour, is hereby DENIED.
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.
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).
Entered this 19th day of August 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRENT COBB, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 19-39
By this appeal, Petitioner, Brent Cobb, seeks access to records held by Respondent, Utah Department of Corrections.
FACTS
On June 26, 2019, the Utah Department of Corrections (“Corrections”) received a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Mr. Cobb. Mr. Cobb requested records related to investigation reports. Mr. Cobb indicated that he was indigent and requested a fee waiver.
On or about June 28, 2019, Corrections denied the request informing Mr. Cobb that he had already reached Correction’s 100-page limit for free copies of records for the calendar year. Mr. Cobb appealed the denial to the Chief Administrative Officer, and James Hudspeth, Deputy Director for Corrections, upheld the denial noting that Mr. Cobb could again request a fee waiver during the next calendar year. Mr. Cobb filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on November 14, 2019 and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). A hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. Counsel for Corrections argued that Mr. Cobb should not receive a fee waiver because the records he requested do not benefit the public, Mr. Cobb’s rights are not directly implicated by the records, and Mr. Cobb may be able to obtain the records through a pending civil suit against Corrections. Counsel also noted that Corrections had already provided Mr. Cobb 300 pages of records free of charge in 2019, which is well above the 100 pages allotted pursuant to Corrections’ policy.
5. After having reviewed the evidence presented, and the written and oral arguments of the parties, the Committee finds that Corrections’ denial of Mr. Cobb’s request for a fee waiver was not an unreasonable denial. Mr. Cobb has not shown that he is entitled to a fee waiver pursuant to Utah Code § 63G-2-203(4)(a, - c). Additionally, Corrections had already provided Mr. Cobb with 300 pages of records free of charge in 2019, and the Committee is persuaded that this is not an unreasonable denial pursuant to Utah Code § 63G-2-203(4)(b).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brent Cobb, is hereby DENIED.
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.
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).
Entered this 25th day of November 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JANALEE RAELYNN ROBERTS, Petitioner, v.
UTAH DEPARTMENT OF HUMAN SERVICES, DIVISION OF CHILD AND FAMILY SERVICES, Respondent.
DECISION AND ORDER
Case No. 19-11
By this appeal, Petitioner, Janalee Raelynn Roberts, seeks access to records held by Respondent, the Utah Department of Human Services, Division of Child and Family Services (“DCFS”).
FACTS
On a form dated December 31, 2018, Ms. Roberts made a request to DCFS for records pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Roberts requested final reports for DCFS Case numbers 2446067 or 244758, and for records related to an interview conducted by the Children’s Justice Center (“CJC”) on July 12, 2018 including the final report findings. Ms. Roberts noted that the records “may be private,” but explained that she was the legal guardian and had physical custody over the individual who was the subject of the record.
In a letter dated January 16, 2019, the GRAMA Specialist for DCFS denied Ms. Roberts’ records request stating that pursuant to Utah Code § 63G-2-202, a record contained in the DCFS Management Information System that is found to be unsubstantiated, unsupported, or without merit may not be disclosed to any person except the person who is alleged in the report to be a perpetrator of abuse, neglect, or dependency. Ms. Roberts appealed the denial to the chief administrative officer for the Department of Human Services (“Department”) arguing that she needed the information to help ensure the safety of her son.
In a letter dated February 4, 2019, Sonia Sweeney, Chief Administrative Officer for the Department, upheld in part the decision of DCFS denying Ms. Roberts’ records request. Ms. Sweeney stated that pursuant to Utah Code § 62A-4a-412(1)(e), Ms. Roberts as the legal parent of a minor child who was the subject of the records, was entitled to the records after necessary redactions were made consistent with the Utah Code. Concerning the video or audio recording by CJC, Ms. Sweeney found that this record could not be provided because it is not a record as defined by GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(xv).
Ms. Roberts filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on May 9, 2019, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every person has the right to inspect a record free of charge, and the right to take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1) (2018). A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2).
2. GRAMA defines what is and what is not considered a “record” in Utah Code § 63G-2-103(22). According to Utah Code § 63G-2-103(22)(b), a “record” does not mean “a video or audio recording of an interview, or a transcript of the video or audio recording, that is conducted at a Children’s Justice Center…” Accordingly, Ms. Roberts cannot obtain a copy of a video or audio recording of an interview, or a transcript of the video or audio record conducted by CJC through a records request pursuant to GRAMA because it is not considered a “record” under GRAMA.
3. GRAMA also provides that if a record to which access is restricted pursuant to another state statute, the record is not considered a public record. Utah Code § 63G-2-201(3)(b). The disclosure of a record to which access is governed or limited pursuant to another state statute “is governed by the specific provisions of that statute…” Utah Code § 63G-2-201(6)(a). GRAMA applies to these types of records only “insofar as [GRAMA] is not inconsistent with the statute…” Utah Code § 63G-2-201(6)(b).
4. Title 62A, Chapter 4a, Part 4 provides that “except as provided in Subsection 63G-2-202(10),” reports made under Part 4 may only be available to “a subject of the report, the natural parents of the child, and the guardian ad litem.” Utah Code § 62A-4a-412(1)(e). However, a record contained in the Management Information System, created in Utah Code § 62A-4a-1003, that is found to be unsubstantiated, unsupported, or without merit, may not be disclosed to any person except the person who is alleged in the report to be a perpetrator of abuse, neglect, or dependency. Utah Code § 63G-2-202(10).
5. After having considered all arguments by the parties, both written and oral, the Committee finds that DCFS has provided all records to Ms. Roberts that are allowable under Utah Law. DCFS cannot provide records related to audio or video interviews by CJC because they are not considered records under GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(xv). Concerning the reports contained in the Management Information System created pursuant to Utah Code § 62A-4a-1003, Ms. Roberts cannot be provided with copies of these records because the report has been found to be unsubstantiated, unsupported, or without merit. See, Utah Code §§ 62A-4a-412(1)(e) and 63G-2-202(10).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Janalee Raelynn Roberts, is hereby DENIED.
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.
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).
Entered this 17th day of May 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LEROY WIRZ, Petitioner, v.
UTAH STATE TAX COMMISSION, Respondent.
DECISION AND ORDER
Case No. 19-26
By this appeal, Petitioner, LeRoy Wirz, seeks access to records held by Respondent, Utah State Tax Commission.
FACTS
On or about March 20, 2019, Mr. Wirz made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to the Motor Vehicle Enforcement Division (“Division”) of the Utah State Tax Commission (“Commission”). Mr. Wirz requested records relating to an investigator’s closing report and findings for a specific case number. In a letter dated March 29, 2019, the Disclosure Officer of the Division stated that she would be able to provide some documents responsive to Mr. Wirz’s records request, but investigation reports including citations, complaints and claims had been classified by the Division as protected records.
On April 8, 2019, Mr. Wirz appealed the denial to the Chief Administrative Officer. In a letter dated April 15, 2019, Scott W. Smith, Executive Director for the Commission, upheld the denial indicating that the records were properly classified as protected pursuant to Utah Code § 63G-2-305(15). Thereafter, Mr. Wirz filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on August 8, 2019, carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A person has the right to inspect a public record and take a copy of a public record subject to Utah Code §§ 63G-2-203 & 204. Utah Code § 63G-2-201(1). A governmental entity may classify a particular record, record series, or information within a record at any time, but is not required to classify a particular record, record series, or information until access to the record is requested. Utah Code § 63G-2-307(2).
2. At the hearing, counsel for the Commission stated that the investigation which was the subject of the report had closed and there was no longer any need to keep the record from being disclosed to Mr. Wirz. However, the Commission was concerned that release of the records to Mr. Wirz would set a precedent requiring the release of similar records to requesters.
3. A governmental entity is required to conduct a “conscientious and neutral evaluation” of a record’s GRAMA status “without regard to existing designations or classifications.” Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26, ¶24, 182 P.3d 372, 379. Additionally, “[i]f a governmental entity becomes aware that circumstances that contributed to the denial of a record request have changed during the appeal,...the legislative intent and statutory structure of GRAMA requires the entity to reassess the classification of the record and, if appropriate, alter its classification as permitted” by Utah Code § 63G-2-307. Id.
4. Based upon the representations of the Commission’s legal counsel that the Commission is willing to provide the record to Mr. Wirz based upon a change in circumstances (the investigation having concluded), the Committee finds that the record should be provided to Mr. Wirz as allowed by Utah Code §§ 63G-2-201(1), -307, and the Deseret News case.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, LeRoy Wirz, is hereby GRANTED.
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.
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).
Entered this 19th day of August 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
UNIFIED POLICE DEPARTMENT OF GREATER SALT LAKE. Respondent.
DECISION AND ORDER
Case No. 20-08
By this appeal, Petitioner, Paul Amann, seeks to have access to a computer hard drive in the possession of Respondent, the Unified Police Department of Greater Salt Lake.
FACTS
On November 14, 2019, the parties appeared for a hearing before the State Records Committee (“Committee”). See, Amann v. Unified Police Dept. of Greater Salt Lake, State Records Committee Case No. 19-41 (Nov. 25, 2019). At the hearing, the parties asked that all briefs filed with the Committee should be withdrawn including the “Notice of Non-Compliance” filed by Mr. Amann, and requested a continuance of the matter to allow more time for the parties to potentially settle the matter. Id.
After being unable to reach a settlement, the parties again appeared before the Committee on January 9, 2020. During the hearing it was determined that the requested disputed records are contained on a computer hard drive which is currently in the possession of Respondent. However, Respondent did not have a copy of the computer hard drive at the time of the hearing for the Committee to review the disputed records. Therefore, in order for the Committee to properly review the disputed records, the Committee requested that Respondent provide a copy of the computer hard drive to the Committee. Further, after considering the number of records contained on the computer hard drive as represented by Respondent’s legal counsel, the Committee determined that members of the Committee will need time to review the disputed records once the copy of the computer hard drive has been provided by Respondent. Accordingly, the Committee voted unanimously for a second continuance of the matter.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul Amann, is CONTINUED until the next available Committee hearing.
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.
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 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 21st day of January 2020.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RAYMOND FITZGERALD, Petitioner, v.
DIVISION OF CONSUMER PROTECTION, Respondent.
DECISION AND ORDER
Case No. 20-13
By this appeal, Petitioner, Raymond Fitzgerald on behalf of Day Pacer LLC, seeks access to records held by Respondent, Division of Consumer Protection.
FACTS
On a form dated on about July 22, 2019, Mr. Fitzgerald submitted a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Fitzgerald requested records relating to a Complaint that was filed against Day Pacer, LLC including an unredacted copy of the Complaint.
On August 5, 2019, a records officer for Respondent notified Mr. Fitzgerald that his records request had been denied because the records were classified as protected pursuant to Utah Code § 63G-2-305(10)(d). Mr. Fitzgerald appealed the denial and on September 11, 2019, an individual designated by the chief administrative officer for the Utah Department of Commerce upheld the records officer’s denial.
On October 9, 2019, Mr. Fitzgerald filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on February 21, 2020, reviewing the records in camera and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
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.
Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(d).
In the present case, Mr. Fitzgerald has been provided with a redacted copy of the Complaint. However, Mr. Fitzgerald has requested an unredacted copy of the Complaint in order to determine the identity of the person who filed a complaint against Day Pacer, LLC. Respondent argued that protecting the identity of the person who filed the complaint is very important because the “complainant here informed Respondent that the complainant fears retaliation from Petitioner.”
After having reviewed the written and oral arguments of the parties and having conducted an in camera review of the Complaint, the Committee finds that Respondent properly classified the Complaint as a protected record pursuant to Utah Code § 63G-2-305(10)(d). The Committee is persuaded by Respondent’s argument that release of an unredacted copy of the Complaint reasonably could be expected to disclose the identity of a source who is not generally known outside of government.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Raymond Fitzgerald on behalf of Day Pacer, LLC is hereby DENIED.
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).
Entered this 3rd day of March 2020
BY THE STATE RECORDS COMMITTEE
____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MCKHELYN JONES on behalf of the UVU REVIEW, Petitioner, v.
UTAH VALLEY UNIVERSITY, Respondent.
DECISION AND ORDER
Case No. 19-37
By this appeal, Petitioner, Mckhelyn Jones, on behalf of the UVU Review student newspaper, seeks access to records held by Respondent, Utah Valley University (“UVU”).
FACTS
On or about February 8, 2019, Ms. Jones made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Jones requested eight initial contact reports from the UVU Police Department regarding specific incidents involving the UVU Police Department. She also made a request for a fee waiver stating “I am a member of the media who is collecting data that will be used for publication.”
Except for one report which was still under active investigation, UVU fulfilled Petitioner’s records request without redactions, but denied the fee waiver request. Ms. Jones appealed the denial of the fee waiver to UVU’s Chief Administrative Officer, Val Peterson, claiming that “unreasonable fees” were being placed on Petitioner regarding access to initial contact reports. On or about April 2, 2019, Mr. Peterson upheld the fee waiver denial, stating that the fee being charged was a reasonable fee because it did not exceed the salary of the lowest paid employee who had the necessary skills and training to perform the records request.
On April 23, 2019, Petitioner filed an appeal with the State Records Committee (“Committee”) regarding the denial of the fee waiver request. After hearing oral argument and testimony on October 10, 2019, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c). A governmental entity may not charge a fee for inspecting a record. Utah Code § 63G-2-203(5)(b).
2. Initial contact reports are normally public. Utah Code § 63G-2-301(3)(g). Additionally, a governmental entity may not use the physical form, electronic or otherwise, in which a record is stored, to deny or unreasonably hinder the rights of a person to inspect and receive a copy of a record under GRAMA. Utah Code § 63G-2-201(13). If a governmental entity receives a request for access to a record that contains both information that the requester is entitled to inspect, and information that the requester is not entitled to inspect, the governmental entity shall allow access to the information the requester is entitled to inspect and also deny access to the information that is exempt from disclosure. Utah Code § 63G-2-308.
3. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
4. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
5. In the present case, Ms. Jones argued that Petitioner is a student paper of UVU with limited resources, and the records are needed in order to do newspaper stories concerning the UVU Police Department. Ms. Jones stated that prior to the Fall of 2017, Petitioner had been allowed to inspect and take photographs of UVU Police Department initial contact reports free of charge. However, a change in UVU policy required a payment of $5.00 per incident report. Ms. Jones argued that charging a flat fee for access to each report “makes it difficult for the general public to access this information and difficult for reporters to report on it.”
6. Counsel for UVU argued that the right to inspect a public record free of charge does not apply to records only accessible by a computer or other electronic device owned or controlled by the governmental entity when part of the electronic file contains non-public information that cannot readily be segregated. See, Utah Code § 63G-2-201(1)(b). Counsel stated that a fee of $35.00 for the requested records was a reasonable fee since the reports had to be obtained from a software system used by other law enforcement agencies.
7. After having reviewed the written arguments of the parties and considering the evidence presented by the parties during the hearing, the Committee finds that UVU’s denial of Petitioner’s request for a fee waiver was an unreasonable denial.
8. The Committee is not persuaded that the records are only accessibly by a computer. The records system provides output to formats normally maintained by the governmental entity. Further, the governmental entity has established a standard process to readily segregate information within the initial contact report. The slowness of the record keeping system, allowing the responder fulfilling the request also to do other governmental duties while fulfilling the request, cannot be considered actual costs of providing a record.
9. Petitioner was able to demonstrate that the requested records primarily benefits the public and not a person in that the records were to be used by the UVU student newspaper. The subject matter of the requests (harassment, stalking, fraud, alcohol offense, disorderly conduct, criminal mischief) are subjects of interest to UVU students. Further, Ms. Jones’ argument that “reporting on campus crime is critical to inform the campus of safety risks; it helps inform students, staff, and faculty about the types of crime happening on their campus so that they might take safety precautions” is persuasive. Given the nature of the requests, the purpose of the requests, and past procedures of UVU responding to similar requests, the Committee believes UVU should allow Petitioner to have access to the requested public records free of charge after being segregated from any non-public records as allowed by Utah Code § 63G-2-308.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is hereby GRANTED.
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.
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).
Entered this 22nd day of October 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, Petitioner, v.
UTAH DEPARTMENT OF NATURAL RESOURCES, Respondent.
DECISION AND ORDER
Case No. 20-16
By this appeal, Petitioner, Eric Peterson, a reporter with the Utah Investigative Journalism Project, seeks access to records held by Respondent, the Utah Department of Natural Resources.
FACTS
On October 29, 2019, Mr. Peterson filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Peterson requested from the Utah Department of Natural Resources (“DNR”) expenditure reports from Big Game Forever from 2015 to the present and any conflict of interest statements filed by Big Game Forever since the organization began receiving Utah state funds. In a letter dated November 12, 2019, the Communications Director for DNR provided some records, but then noted that the subcontractor’s names had been redacted. The letter further stated that Big Game Forever had filed a claim of business confidentiality for the information.
Mr. Peterson filed an appeal with DNR, and in a letter dated December 5, 2019, DNR’s Communications Director on behalf of DNR’s Executive Director, denied Mr. Peterson’s appeal. On December 10, 2019, Mr. Peterson filed an appeal with the State Records Committee (“Committee”). On February 21, 2020, the Committee held a hearing regarding the appeal, and after carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are classified as private, protected, or controlled pursuant to Utah Code §§ 63G-2-302, -303, -304 and -305, are not public records pursuant to Utah Code § 63G-2-301(3)(a).
Trade secrets as defined in Utah Code § 13-24-2 are protected records if properly classified by a governmental entity if the person submitting the trade secret has provided the governmental entity with the information specified in Utah Code § 63G-2-309.
Commercial information obtained from a person in a record is protected if: (1) Disclosure of the information could reasonable be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future; (2) The person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and (3) The person submitting the information has provided the governmental entity with the information specified in Utah Code § 63G-2-309.
Counsel for DNR argued that Big Game Forever had requested that the names of subcontractors be protected pursuant to Utah Code §§ 63G-2-305(1) & -305(2) and had provided the necessary information specified in Utah Code § 63G-2-309. Mr. Peterson argued that because of the use of public funds, the interest of the public outweighed the interest in prohibiting access to the public.
After having considered the written and oral arguments of the parties, the Committee finds that the requested records should be classified as public records. The Committee found that this information while not “trade secrets,” was also information that was normally public pursuant to Utah Code §§ 63G-2-301(3)(c). Further, the Committee finds persuasive the argument that there is a public interest in the public obtaining access to information regarding the spending of public funds.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson is hereby GRANTED.
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).
Entered this 3rd day of March 2020
BY THE STATE RECORDS COMMITTEE
____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARK GAJKOWSKI, Petitioner, v.
UTAH STATE TAX COMMISSION, Respondent.
DECISION AND ORDER
Case No. 20-24
By this appeal, Petitioner, Mark Gajkowski, seeks access to records held by Respondent, Tax Commission.
FACTS
On October 10, 2019, Mr. Gajkowski filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) with Respondent. Mr. Gajkowski requested all investigation documents, officer notes, and reports regarding a specific investigation case. Mr. Gajkowski noted that he was the subject of the records. In a letter dated October 21, 2019, the Executive Director for Respondent denied Mr. Gajkowski’s request stating that investigative reports including citations, complaints, and claims are classified as protected records pursuant to Utah Code § 63G-2-305(10) and -305(15). Mr. Gajkowski filed an appeal of this decision, which was denied in a letter dated December 12, 2019 by Respondent.
Mr. Gajkowski filed an appeal with the State Records Committee (“Committee”). Prior to hearing the case, Respondent provided documents to Mr. Gajkowski because the investigation had closed and the file could be provided to him with appropriate redactions. On June 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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. At the hearing, counsel for Respondent argued that all records responsive to Mr. Gajkowski’s records request in the control of Respondent had been provided. Counsel noted that some records were records of the Utah Department of Public Safety through its Bureau of Criminal Identification and Driver License Divisions, and therefore, could not be provided by Respondent. Counsel also noted that some redactions had occurred for documents that contained third party or personally identifying information pursuant to Utah Code §§ 63G-2-305(51), 41-1a-116, and Driver’s Privacy Protection Act (DPPA).
3. After considering the arguments and evidence presented by the parties, the Committee finds that all public records possessed by Respondent in response to Mr. Gajkowski’s records request have been produced with appropriate redactions for third party or personally identifying information.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Gajkowski, is hereby DENIED.
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.
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).
Entered this 19th day of June 2020.
BY THE STATE RECORDS COMMITTEE
KENNETH WILLIAMS, Chair Pro-Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TREVOR LEE, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 20-31
By this appeal, Petitioner, Trevor Lee, counsel for Patrick Sullivan, seeks access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On or about January 9, 2020, Mr. Lee, counsel for Patrick Sullivan made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Lee requested various records and communications, most of which related to Patrick Sullivan. Mr. Lee also requested a fee waiver because Mr. Sullivan is the subject of the records and is impecunious.
On January 23, 2020, Respondent notified Mr. Lee that due to the voluminous nature of the request, Respondent would need additional time to either approve or deny the request. Also included in the response was a request for clarification on a few additional matters.
Mr. Lee provided clarification on the additional matters and also notified Respondent that he would not narrow the search term from his initial request. Respondent notified Mr. Lee that they would treat his request for multiple records as separate requests and would respond sequentially. Respondent also gave Mr. Lee a fee estimate of $541.00.
Mr. Lee appealed the response and disputed both the denial of a fee waiver and the decision to separate his request into multiple requests claiming that time was of the essence and the records were needed as soon as possible. On or about March 3, 2020, Mr. Lee’s appeal was denied.
Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). On August 13, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Mr. Lee argued that a fee waiver should be granted for Mr. Sullivan because Mr. Sullivan is the subject of the records, his legal rights are directly implicated by the information in the record, and Mr. Sullivan is impecunious. See, Utah Code § 63G-2-203(4)(b) & (c).
2. After hearing arguments from both parties, the Committee is convinced that for some of the records, Mr. Sullivan is the subject of the records and his legal rights may be directly implicated by the records. The Committee is also convinced that Mr. Sullivan is impecunious. Accordingly, the Committee finds that a fee waiver should be granted by Corrections for those records which Mr. Sullivan is the subject of the records and also directly implicate his legal rights. However, for the remainder of the requested records, Corrections’ determination that a fee waiver should be denied is hereby affirmed.
3. Regarding the request for an expedited response and the voluminous nature of the records request, the parties agreed to work together regarding a schedule for production of records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Trevor Lee, 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.
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).
Entered this 24 day of August 2020.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
UNIFIED POLICE DEPARTMENT OF GREATER SALT LAKE. Respondent.
DECISION AND ORDER
Case No. 20-10
By this appeal, Petitioner, Paul Amann, seeks to have access to a computer hard drive in the possession of Respondent, the Unified Police Department of Greater Salt Lake.
FACTS
In January 2020, the parties appeared for a hearing before the State Records Committee (“Committee”). See, Amann v. Unified Police Dept. of Greater Salt Lake, State Records Committee Case No. 20-08 (Jan 21, 2020). At the hearing, the parties requested a continuance of the matter. The Committee voted unanimously for a continuance until the next available Committee hearing, which was thereafter scheduled for February 21, 2020.
At the February 21, 2020 Committee hearing, the parties requested an additional continuance to try to resolve the matter. The Committee voted unanimously for an additional continuance.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul Amann, is CONTINUED until the next available Committee hearing.
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 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 3rd of March 2020.
BY THE STATE RECORDS COMMITTEE
___________________________________
PATRICIA SMITH-MANSFIELD, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JOHN G. BLOOM, Petitioner, v.
UTAH DIVISION OF OIL, GAS, and MINING, Respondent.
DECISION AND ORDER
Case No. 20-14
By this appeal, Petitioner, John G. Bloom seeks access to records held by Respondent, the Utah Division of Oil, Gas, and Mining.
FACTS
On or about August 27, 2019, Mr. Bloom filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Bloom requested from the Utah Division of Oil, Gas, and Mining (“Division”) two reports: (1) The May 2008 “Western Energy Hub Project Area, Structural Interpretation” prepared by Serra GeoConsulting LLC for Magnum Energy LLC; and (2) The August 2016 “Location and Character of Faults in the Vicinity of the Magnum Energy Facility” by author Steven Schamel. On August 29, 2019, the records officer for the Division denied Mr. Bloom’s request finding that the records had been classified as restricted access pursuant to Utah Code §§ 63G-2-201(3) & -201(6). The denial notice stated the entity that submitted the records complied with Utah Code § 63G-2-309 to designate the records as confidential.
Mr. Bloom filed an appeal with the Director of the Division, arguing that he did not believe “two scientific investigations of a geologic nature should be classified as protected…” Mr. Bloom stated that the information was needed “to determine the response of the salt dome and caverns to a major earthquake.” In a letter dated November 1, 2019, John R. Baza, Director of the Division, upheld the records officer’s denial. On November 29, 2019, Mr. Bloom filed an appeal with the State Records Committee (“Committee”). On February 21, 2020, the Committee held a hearing regarding the appeal, and after carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are classified as private, protected, or controlled pursuant to Utah Code §§ 63G-2-302, -303, -304 and -305, are not public records pursuant to Utah Code § 63G-2-301(3)(a).
Trade secrets as defined in Utah Code § 13-24-2 are protected records if properly classified by a governmental entity if the person submitting the trade secret has provided the governmental entity with the information specified in Utah Code § 63G-2-309.
Commercial information obtained from a person in a record is protected if: (1) Disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future; (2) The person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and (3) The person submitting the information has provided the governmental entity with the information specified in Utah Code § 63G-2-309.
In the present case, counsel for the Division argued that the public’s interest in disclosure is outweighed by the interest in restricting access because the reports contain trade secret information. The Division stated that Sawtooth Caverns LLC (“Sawtooth Caverns”), which is a subsidiary of Magnum Energy LLC, asserted in their confidentiality letter that the information contained in the reports “derives independent economic value as it sets forth information critical to the design of the cavern well field and individual storage caverns.” Counsel contended that if the information is disclosed, it would allow another entity to use the data to build a competing facility. Stewart Peay, legal counsel for Sawtooth Caverns, who made an appearance at the hearing as a third party intervenor, argued that disclosure of the reports would cause undue financial loss and unfair competitive injury to Sawtooth Caverns.
After having considered the written and oral arguments of the parties and reviewing the records in camera, the Committee finds that the requested records were properly classified as protected records pursuant to Utah Code §§ 63G-2-305(1) and/or -305(2). The Committee is persuaded by the arguments presented by the Division and Sawtooth Caverns that the requested records contain trade secrets and that Sawtooth Caverns complied with the requirements of Utah Code § 63G-2-309. The Committee further finds that disclosure of the information within the records could reasonably be expected to result in unfair competitive injury to Sawtooth Caverns, impair the ability for the Division to obtain similar necessary information in the future, and that Sawtooth Caverns has a greater interest in prohibiting access than the public in obtaining access.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jack Bloom is hereby DENIED.
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).
Entered this 3rd day of March 2020
BY THE STATE RECORDS COMMITTEE
____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v.
DEPARTMENT OF WORKFORCE SERVICES. Respondent.
DECISION AND ORDER
Case No. 20-38
By this appeal, Petitioner, the Center for Biological Diversity, seeks access to records allegedly held by Respondent, the Department of Workforce Services.
FACTS
In a letter dated October 14, 2019, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records from the Utah Department of Workforce Services, Utah Permanent Community Impact Fund Board (“CIB”). The requested records related to the Uinta Basin Railway including its funding and communications by CIB. Petitioner also requested a fee waiver because “the disclosure of the requested information is in the public interest and will contribute significantly to public understanding of CIB’s activities as they relate to the Railway.”
On November 5, 2019, Respondent notified Petitioner that it would take 4-5 weeks to compile the records. Respondent also stated that the request for a fee waiver was being denied, provided the approximate cost to fulfill the records request, and in consideration of the public interest in the records, would be willing to waive 50% of the cost of production of the requested records.
In a letter dated November 13, 2019, Petitioner submitted an appeal of the fee waiver denial, but expressed a willingness to pay the associated fees with the request but “under protest.” On November 29, 2019, Jon Pierpont, Executive Director for Respondent, denied the request for a fee waiver and affirmed that Respondent was willing to reduce the fees by 50%. The parties continued to correspond concerning the progress of the production of the records. However, in a letter dated April 14, 2020, Petitioner stated that it was appealing Respondent’s “constructive denial” of the records request because Petitioner failed to provide responsive records within the specified time periods.
Petitioner filed an appeal with the State Records Committee (“Committee”) through a letter dated May 7, 2020. On August 27, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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. Respondent argued that the records should be protected pursuant to Utah Code § 63G-2-305(3) which allows a governmental entity to protect records that contain commercial or financial information acquired or prepared by a governmental entity to the extent that disclosure would cause substantial financial injury to the governmental entity or state economy.
3. After having reviewed the disputed records in camera, the Committee was not persuaded that release of the records would cause substantial financial injury to the governmental entity or state economy pursuant to Utah Code § 63G-2-305(3). The Committee also found that even if the records were properly classified as protected records, the public interest in the records outweighs the interest favoring restriction of access and therefore, the records should be disclosed. See, Utah Code §§ 63G-2-403(11)(b) & 63G-2-102.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Center for Biological Diversity is hereby GRANTED.
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.
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).
Entered this 8 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH LEAGUE OF CITIES AND TOWNS. Respondent.
DECISION AND ORDER
Case No. 20-53
By this appeal, Petitioners, Brady Eames, seeks access to records allegedly held by Respondent, the Utah League of Cities and Towns.
FACTS
Mr. Eames submitted on May 29, 2020 a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested, “[a]ny and all documentation of any rules of order and procedure with respect to the open and public meetings convened by the [Respondent’s] Board of Directors or any other public body of [Respondent].”
Respondent denied the appeal pursuant to Utah Code §§ 63G-2-201(1)(b)(i) and -201(8)(d) based on a previous request from December 12, 2019. Mr. Eames appealed the denial to Executive Director Cameron Diehl specifying that he wanted a copy of “Robert’s Rules of Order” which is mentioned in Respondent’s Constitution as governing all meetings held by Respondent unless otherwise specified. Respondent denied the appeal and thereafter Mr. Onysko filed his appeal with the State Records Committee (“Committee”).
On October 8, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A person has the right to inspect a public record free of charge, and a right to take a copy of a public record during normal working hours except as provided in §§ 63G-2-201(1)(b), -203, & -204. Utah Code § 63G-2-201(1)(a). A right under -201(1)(a) does not apply with respect to a record a copy of which the governmental entity has already provided to the person. Utah Code § 63G-2-201(1)(b)(i).
2. A right to inspect and/or take a copy of a record does not apply to a record that is publicly accessible online and the governmental entity specifies to the person requesting the record where the record is accessible online. Utah Code § 63G-2-201(1)(b)(ii) & (8)(e). Additionally, a “record” does not mean a book that is cataloged, indexed, or inventoried and contained in the collections of a library open to the public. Utah Code § 63G-2-103(22)(b)(vii).
3. Based upon the evidence presented, the Committee finds that Respondent has provided all records responsive to Mr. Eames’ records request as required by Utah Code § 63G-2-201(1). Further, Respondent was not required to provide access to or a copy of “Robert’s Rules of Order” because it is a book that is contained and readily accessible in collections of public libraries, and is therefore, not considered a “record” pursuant to Utah Code § 63G-2-103(22)(b)(vii).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is hereby DENIED.
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 party’s 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).
Entered this 20 day of October 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
GARFIELD COUNTY TAXPAYER’S ASSOCIATION, Petitioner, v.
UTAH TAX COMMISSION, Respondent.
DECISION AND ORDER
Case No. 20-04
By this appeal, Petitioner, the Garfield County Taxpayer’s Association, seeks access to records held by Respondent, Utah Tax Commission.
FACTS
In August 2019, Byron Ellis on behalf of the Garfield County Taxpayer’s Association (“Petitioner”) submitted a records request to the Property Tax Division of the Utah State Tax Commission pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested:
[C]opies of the records which were used to calculate Garfield County’s statistics as presented in the 2019 Assessment/Sales Ratio Study. Such records would include the 33 residential and 46 vacant land surveys which were returned to, collected by and used by the Property Tax Division in the calculations…
Pins of the 79 properties and copies of all correspondence between the Property Tax Division and the Garfield County Tax Assessor’s office relating to the 2019 Assessment/Sales Ratio Study, including email, spreadsheets, forms, or written requests.
In a letter dated August 21, 2019, Respondent’s Disclosure Officer rejected Petitioner’s request. Petitioner filed an appeal with Respondent’s Executive Director, Scott W. Smith, who upheld the denial of Petitioner’s request in a letter dated August 28, 2019.
On September 11, 2019, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 9, 2020 and carefully considering the requested relief 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. Commercial information or nonindividual financial information obtained from a person is a protected record if properly classified by a governmental entity if: (1) Disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future; (2) The person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and (3) The person submitting the information has provided the governmental entity with the information specified in Utah Code § 63G-2-309. Utah Code § 63G-2-305(2)(a-c).
3. Mr. Ellis appearing on behalf of Petitioner, stated that the Garfield County Taxpayer’s Association was formed to help educate citizens of Garfield County concerning the use of taxpayers’ money. Mr. Ellis testified that a review of Garfield County’s assessed values and listed values/actual sale values for properties showed a large discrepancy between the two values. Mr. Ellis argued that obtaining the requested records is necessary in order to allow a determination of how the assessed value of the properties were calculated which form the basis of the property tax rates within Garfield County.
4. Counsel for Respondent argued that the requested records should be considered protected records because they include commercial information gathered from realtors and individuals who have bought or sold a home. Counsel claims that it is reasonable to assume that some of the survey respondents (in particular realtors) do not want this information disclosed because disclosure would impair the governmental entity from obtaining necessary information in the future. See, Utah Code § 63G-2-305(2)(a). Respondent also provided a copy of a contract stating a written claim of business confidentiality by the Wasatch Front Regional Multiple Listing Service, Inc. with Respondent regarding the information.
5. After having carefully considered the written and oral arguments of both parties, the Committee finds that the requested records should be given to Petitioner. Although Utah Code § 63G-2-305(2)(a) provides that a record may be protected if disclosure “would impair the ability of the governmental entity to obtain necessary information in the future,” Utah Code § 63G-2-305(2)(b) provides that there must also be a greater interest in prohibiting access than there is for the public obtaining access. Since the nature of Petitioner’s request is to determine assessed value of properties forming the basis of the Garfield County property tax rates, the Committee finds that Petitioner having access to the requested information concerning the 79 properties is a public interest that is greater than the private interest for non-disclosure.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, the Garfield County Taxpayer’s Association, is hereby GRANTED.
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.
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).
Entered this 21st day of January 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JILL McCLUSKEY, Petitioner, v.
UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 20-23
By this appeal, Petitioner, Jill McCluskey, natural mother and personal representative of the estate of Lauren McCluskey, seeks access to records allegedly held by Respondent, the University of Utah.
FACTS
On October 22, 2018, Lauren McCluskey, a student at the University of Utah, was kidnapped and murdered by Melvin Shawn Rowland. On December 17, 2019, Petitioner made a records request of Respondent for “all student counseling records regarding Lauren McCluskey…including but not limited to records from the University Counseling Center and the Psychology and Wellness service…” Petitioner also requested “any other records that might indicate who has accessed Lauren McCluskey’s counselling records…”
On January 27, 2020, Respondent denied Petitioner’s request, stating that to the extent any records exist, the records would be classified as controlled records pursuant to Utah Code § 63G-2-304, and therefore, would not be released to Petitioner. Petitioner filed an appeal of this decision and in a letter dated March 4, 2020, Gregory C. Thompson, Appeals Officer for Respondent, affirmed the denial of Petitioner’s records request. Mr. Thompson stated that “a student’s mental health records, including those of a deceased student, are classified as ‘controlled’” records under the Government Records Access and Management Act (“GRAMA”). Mr. Thompson also stated that if Lauren McCluskey had sought and received counseling from a mental health professional at the University, “her records would not have been shared with anyone outside of those providing counseling unless Ms. McCluskey herself had requested the release of such records.”
In a letter dated March 27, 2020, Petitioner filed an appeal with the State Records Committee (“Committee”). On June 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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 considered a controlled record if properly classified by a governmental entity and: (1) The record contains medical, psychiatric, or psychological data about an individual and; (2) Releasing the information in the record would constitute a violation of normal professional practice and medical ethics. Utah Code § 63G-2-304.
3. Under GRAMA, access to a controlled record by the subject of the record can only be granted through a court order pursuant to Utah Code § 63G-2-202(7). See, Utah Code § 63G-2-202(2)(a)(ii)(A). However, GRAMA also states that the disclosure of a record to which access is governed or limited pursuant to court rule, another state statute, federal statute, or federal regulation, is governed by the specific provisions of that statute, rule, or regulation. Utah Code § 63G-2-201(6).
4. A mental health therapist under the Mental Health Professional Practice Act, may not disclose any confidential communication with a client or patient without the express consent of either: (1) The client or patient, or (2) The authorized agent of the client or patient. Utah Code § 58-60-114(1)(a) & (c). Similarly, a psychologist under the Psychologist Licensing Act, may not disclose any confidential communication with a client or patient without the express consent of either: (1) The client or patient, or (2) The authorized agent of the client or patient. Utah Code § 58-61-602(1)(a) & (c).
5. Based upon the representations of attorney James W. McConkie at the hearing that he is legal counsel for Jill McCluskey and that Jill McCluskey is the personal representative of the estate of Lauren McCluskey, the Committee finds that Petitioner is the authorized agent of Lauren McCluskey. Accordingly, the requested records if they exist, should be released by Respondent to Petitioner pursuant to §§ 58-60-114(1)(a) & (c) and 58-61-602(1)(a) & (c). See also, Utah Code § 63G-2-201(6).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jill McCluskey, is hereby GRANTED.
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.
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).
Entered this 19th day of June 2020.
BY THE STATE RECORDS COMMITTEE
KENNETH WILLIAMS, Chair Pro-Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BLAKE JOHNSON, Petitioner, v.
JUDICIAL CONDUCT COMMISSION. Respondent.
DECISION AND ORDER
Case No. 20-32
By this appeal, Petitioner, Blake Johnson, seeks access to records allegedly held by Respondent, the Judicial Conduct Commission.
FACTS
On or about January 31, 2020, Blake Johnson, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Johnson requested:
…all documents, decisions, findings, conclusions, etc. related to the investigation into Honorable Thomas L. Kay and his conduct regarding Roush vs. Greene’s Inc., Case No. 160700091. Trial took place September 25-26, 2017. The conduct investigated occurred at the Post Trial Hearing that took place on January 19, 2018.
On February 3, 2020, Respondent denied Mr. Johnson’s request pursuant to Utah Code § 78a-11-112. Petitioner appealed the denial, and on March 17, 2020, Respondent considered the appeal at one of its regularly scheduled meetings. After review and deliberation, the Respondent denied the appeal.
Thereafter, Mr. Johnson filed an appeal with the State Records Committee (“Committee”). On August 13, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Counsel for Respondent requested that Mr. Johnson’s appeal should be dismissed because GRAMA’s Part 4, Appeals, does not apply to Respondent.
2. GRAMA specifies that the judiciary is subject to the provisions of GRAMA “except as provided” in Utah Code § 63G-2-702. Utah Code § 63G-2-702(1); See also, Utah Code § 63G-2-103(11)(a)(iii). Pursuant to Utah Code § 63G-2-702(2)(a), the judiciary is not subject to Part 4, Appeals, except as provided in Utah Code § 63G-2-702(5). Utah Code § 63G-2-702(5) provides that rules governing appeals from denials of request for access “shall substantially comply with the time limits provided in Section 63G-2-204 and Part 4, Appeals.”
3. The Utah Judicial Conduct Commission “is established” by the Utah Constitution under Article VIII titled “Judicial Department”. See, Utah Const. Art. VIII, § 13; Utah Code § 78A-11-101. The Utah Constitution establishes that Respondent “shall investigate and conduct confidential hearings regarding complaints against any justice or judge.” Respondent may order the reprimand, censure, suspension, removal, or involuntary retirement of any justice or judge for items listed in the Utah Constitution subject to review of the Utah Supreme Court. Utah Const. Art. VIII, § 13.
4. Further duties and procedures of the Judicial Conduct Commission are delineated by the Utah Legislature in Title 78A “Judiciary and Judicial Administration”, Chapter 11. This is similar to how duties and procedures of other governmental entities who are considered part of the judicial branch of government are outlined including the Utah Supreme Court (Chapter 3), the Utah Court of Appeals (Chapter 4), Utah District Courts (Chapter 5), Juvenile Courts (Chapter 6), Justice Courts (Chapter 7), and Small Claims Courts (Chapter 8). Additionally, Respondent has the ability to issue subpoenas “in aid of an investigation of a complaint filed with the commission” with the subpoenas having “the same authority as an order of the district court.” Utah Code § 78A-11-113(1).
5. After having reviewed the applicable provisions of the Utah Constitution and Utah Code, the Committee finds that Respondent is part of the judiciary. Respondent was created by the Utah Constitution under Article VIII “Judicial Department”, its duties and procedures are delineated in Title 78A similar to the judiciary, its responsibilities are to investigate and conduct hearings for justices and judges who are within the judiciary, and its ability to investigate is aided by issuing subpoenas with the “same authority as an order of the district court.” Accordingly, the Committee finds that it does not have jurisdiction over appeals from denials of request for access to records from Respondent pursuant to Utah Code § 63G-2-702(2)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Blake Johnson, is hereby DISMISSED.
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.
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).
Entered this 24 day of August 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL RICHINS, Petitioner, v.
DAVIS COUNTY. Respondent.
DECISION AND ORDER
Case No. 20-41
By this appeal, Petitioner, Paul Richins, seeks access to records allegedly held by Respondent, Davis County.
FACTS
On or about September 16, 2019, Mr. Richins made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) via letter to the Davis County Assessor’s office. Mr. Richins requested all “tangible” and “intangible” records related to Respondent’s valuation of his real property. Over the course of the next several months, Mr. Richins reaffirmed his request multiple times. In each correspondence with the Respondent, Mr. Richins requested access to the records relied upon by Respondent to determine the market value of his real property.
Respondent initially viewed Mr. Richins’ request as part of an administrative appeal of the valuation of his property and scheduled an appeal before the County Board of Equalization. On December 13, 2019, Mr. Richins filed an appeal with the Davis County Chief Administrative Officer. A decision was not provided until January 2020.
Thereafter Mr. Richins filed an appeal with the State Records Committee (“Committee”). On August 27, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 63G-2-201(2). 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a).
2. Counsel for Respondent argued that access to all records responsive to Mr. Richins’ records request has already occurred. Respondent relied upon a Declaration by Davis County Assessor Dale Peterson, which stated that on four separate occasions in July 2020, Mr. Richins was allowed to inspect all records maintained and relied upon by Respondent to determine the market value of Mr. Richins’ property and the properties in his immediate neighborhood.
3. After having considered the arguments of the parties, and hearing oral arguments and testimony, the Committee finds that Respondent provided access to all records that are responsive to Mr. Richins’ records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul Richins is hereby DENIED.
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.
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).
Entered this 8 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DANIEL MOVAHHED Petitioner,v.
SALT LAKE COUNTY SHERIFF’S OFFICE Respondent.
DECISION AND ORDER
Case No. 20-26
The present appeal was scheduled to be heard by the State Records Committee on June 12, 2020. Unfortunately, Petitioner, Daniel Movahhed, was unable to attend the hearing in person or electronically. Accordingly, the Committee unanimously voted to continue the hearing to a time in which Mr. Movahhed will be able to participate.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Daniel Movahhed, is CONTINUED until a future Committee hearing date at which Mr. Movahhed will be able to participate.
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.
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 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 19 day of June 2020.
BY THE STATE RECORDS COMMITTEE
KEN WILLIAMS, Chair Pro-Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WASATCH TAXPAYER ASSOCIATION, Petitioner, v.
WASATCH COUNTY SCHOOL DISTRICT. Respondent.
DECISION AND ORDER
Case No. 20-33
By this appeal, Petitioner, Tracy Taylor, for herself and on behalf of Wasatch Taxpayer Association, seeks access to records allegedly held by Respondent, the Wasatch County School District.
FACTS
On or about January 8, 2020, Petitioner, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records related to the “Bio-West Wetlands Delineation Report” prepared for Respondent related to a proposed new high school in Wasatch County. On January 23, 2020, Respondent responded to the request by providing Petitioner a copy of invoices related to engineer studies performed on the New High School site and directing Petitioner to a related website.
On February 13, 2020, Petitioner submitted an additional request to which the Respondent provided additional information and invoices for Bio-West Engineers, and stated that the draft completed by Bio-West Engineers was excluded pursuant to Utah Code § 63G-2-305(22). Dissatisfied with Respondent’s response, Petitioner filed an appeal with the Chief Administrative Officer, who on April 10, 2020, notified Petitioners that “the original decision was correct and am therefore denying your appeal.”
Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). On August 13, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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. Respondent argued that pursuant to Utah Code § 63G-2-305(22), the requested records should be considered “drafts” and therefore were properly classified as protected non-public records. Petitioner contended that the taxpayers of the Wasatch County School District should have access to the reports that had been submitted to Respondent even if the reports were considered drafts, the information within the reports were relied upon by Respondent. See, Utah Code § 63G-2-301(3)(k).
3. After hearing the arguments by the parties, the Committee found that the records were inappropriately classified as drafts pursuant to Utah Code § 63G-2-305(22). The Committee was persuaded by Petitioner’s arguments that the taxpayers should have access to the report even though it may not have been completed because it contains information that was relied upon by Respondent. Accordingly, the requested records should be considered public records pursuant to Utah Code § 63G-2-201(2).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Wasatch Taxpayer Association, is hereby GRANTED.
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.
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).
Entered this 24 day of August 2020.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LARRY AGEE, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 20-42
By this appeal, Petitioner, Larry Agee, seeks access to records allegedly held by Respondent, the Utah Department of Corrections (“Corrections”).
FACTS
On or about October 31, 2019, Mr. Agee, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Agee requested the “employee misconduct record” concerning a specific employee for Corrections from 2012 to 2019. Mr. Agee stated that the request was needed for “litigation purposes on a criminal complaint.” On November 25, 2019, Mr. Agee’s request was denied by a records officer for Corrections finding that the specified employee’s misconduct record should be considered a private record.
Mr. Agee filed an appeal to Corrections Deputy Director James Hudspeth. In the appeal, Mr. Agee referenced a specific Utah District Court case number, stating that his “legal rights are directly implicated in my request for these records.” On February 10, 2020, Mr. Hudspeth affirmed the denial stating that the records were properly classified as private records pursuant to Utah Code § 63G-2-302(2)(d). Mr. Hudspeth also stated that Mr. Agee was not entitled to the records because Mr. Agee was not referenced in the requested records.
In a letter dated March 7, 2020, Mr. Agee filed an appeal with the State Records Committee (“Committee”). On August 27, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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. However, the person making the records request needs to identify the requested record with “reasonable specificity” to allow the governmental entity to fulfill the records request. Utah Code § 63G-2-201(7)(b).
2. During the hearing, it was clarified that the purpose of Mr. Agee’s records request was to find records related to a specific incident involving Mr. Agee and the employee for whom Mr. Agee was requesting the records. It was also determined that the court case number referenced by Mr. Agee was an incorrect case number.
3. After having reviewed the evidence and the arguments by the parties, the Committee determined that Mr. Agee’s records request was not reasonably specific as required by Utah Code § 63G-2-201(7)(b). The Committee found that a more specific records request using the correct court case number would better allow Corrections to fulfill Mr. Agee’s records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Larry Agee is hereby DENIED.
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.
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).
Entered this 9 day of September 2020
BY THE STATE RECORDS COMMITTEE
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee/
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LEO HOLTZ, Petitioner, v.
UTAH STATE TREASURERS OFFICE. Respondent.
DECISION AND ORDER
Case No. 20-50
By this appeal, Petitioner, Leo Holtz, seeks access to records allegedly held by Respondent, Utah State Treasurer’s Office.
FACTS
On or about June 17, 2020, Mr. Holtz made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Holtz requested “an opportunity to inspect or obtain copies of public records of the Surplus / Excess Funds list (7 years of data) from tax foreclosure sale auctions conducted by counties, whose unclaimed surplus funds have been transferred to and held by the Utah State Treasury.”
In a letter dated June 22, 2020, Respondent notified Mr. Holtz that the office does not “keep existing records in the form of lists” that have been requested. Mr. Holtz appealed and the appeal was denied. Thereafter, Mr. Holtz filed an appeal with the State Records Committee (“Committee”). On September 24, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). However, a record to which access is restricted pursuant to another state statute is not a public record. Utah Code § 63G-2-201(3)(b).
2. Records of the Deputy State Treasurer and his or her agent related to the administration of the Revised Uniform Unclaimed Property Act (Utah Title 67, Chapter 4a), are confidential and exempt from public inspection or disclosure except as otherwise provided in the Act. Utah Code § 67-4a-1402(1)(a).
3. In response to a records request pursuant to GRAMA, a governmental entity is not required to fill a person’s request if the requested record is publicly accessible online and the governmental entity specifies to the person requesting the record where the record is accessible online. Utah Code § 63G-2-201(8)(e).
4. After carefully reviewing the evidence and the arguments of the parties, the Committee finds that Respondent is not required to fulfill Mr. Holtz’s records request. Some of the records are confidential and exempt from public inspection/disclosure pursuant to Utah Code § 67-4a-1402(1)(a), and the remaining public records are already accessible online. See, Utah Code § 63G-2-201(8)(e).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Leo Holtz is hereby DENIED.
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.
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).
Entered this 30 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CHARLES BASCOMB, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 20-28
By this appeal, Petitioner, Charles Bascomb, seeks access to records allegedly held by Respondent, the Utah Department of Corrections.
FACTS
On or about January 27, 2020, Daniel J. McDonald, legal counsel for Mr. Bascomb, made a request for records on behalf of Mr. Bascomb pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. McDonald requested documents related to Mr. Bascomb’s incarceration in the Draper and Gunnison corrections facilities. In a letter dated February 19, 2020, the GRAMA coordinator for Respondent provided records to Mr. McDonald, but also denied access to other records because they were classified as non-public records.
An appeal was filed with James Hudspeth, Deputy Director for Respondent. Respondent alleges that a response letter was sent to Mr. McDonald, but prior to the letter being received, an appeal was filed with the State Records Committee (“Committee”) on April 21, 2020. On July 9, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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) 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; and (3) The governmental entity has properly classified the record. Utah Code § 63G-2-304.
3. Records the disclosure of which would jeopardize the life or safety of an individual, or records if disclosed would jeopardize the security or safety of a correctional facility, are protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(11) & (13).
4. Counsel for Respondent argued that the remaining records that have not been released to Mr. McDonald involve Mr. Bascomb’s mental health records, and that release of the records may endanger either Mr. Bascomb or other individuals. Counsel also argued that release of photographs from incident reports, investigative records, or housing information from the correctional facility, would jeopardize the life or safety of individuals, or jeopardize the security or safety of the correctional facility.
5. After having considered the arguments of the parties, the Committee finds that Respondent properly classified the remaining responsive records as non-public records pursuant to Utah Code §§ 63G-2-304 and -305(11) & (13). The Committee is persuaded by Respondent’s arguments that release of the records would jeopardize the health and safety of individuals requiring that the records remain non-public and not be disclosed to Mr. Bascomb. See also, Fruhwirth v. Utah Dept. of Corrections, State Records Committee Order No. 11-02 (Jan. 20, 2011).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Charles Bascomb, is hereby DENIED.
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.
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).
Entered this 21st day of July 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SUE STEEL and RONI WILCOX, Petitioners, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 20-37
By this appeal, Petitioners, Sue Steel and Roni Wilcox, seek a fee waiver for access to records allegedly held by Respondent, the Utah Department of Corrections (“Corrections”).
FACTS
On January 13, 2020, Petitioners made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioners made three requests regarding a search of Corrections’ Google Vault for all e-mail sent or received by Corrections’ employees regarding Petitioners from September 1, 2019 to the present. Petitioners additionally requested a fee waiver stating that they were the subject of the requested records. In a letter dated February 10, 2020, Corrections’ GRAMA Coordinator rejected Petitioner’s request stating that it was not reasonably specific, but requested Petitioners to be more specific by naming which employee’s accounts they wanted to have searched.
On February 14, 2020, Petitioners filed an appeal with Corrections’ Deputy Director, James Hudspeth. In a letter dated February 28, 2020, Mr. Hudspeth explained that the original response by the GRAMA Coordinator was not intended to be a denial, but instead was a request for additional information. Mr. Hudspeth granted Petitioners’ appeal with the exception that Petitioners would need to specify which accounts would need to be searched. Petitioners’ request for a fee waiver was not mentioned as part of the appeal.
Thereafter, Petitioners filed an appeal with the State Records Committee (“Committee”). On August 27, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The single issue presented to the Committee in the present appeal is whether Petitioners were entitled to a fee waiver. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. After having considered the arguments of the parties, and hearing oral arguments and testimony, the Committee finds that Corrections’ denial of Petitioners’ request for a fee waiver was not an unreasonable denial. Some discretion is given to a governmental entity regarding decisions involving fee waivers, and Petitioners did not present sufficient evidence to show that they were entitled to receive a fee waiver from Corrections.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioners, Sue Steel and Roni Wilcox is hereby DENIED.
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.
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).
Entered this 8 day of September 2020.
BY THE STATE RECORDS COMMITTEE
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MIKE FAVERO, Petitioner, v.
LOGAN CITY SCHOOL DISTRICT. Respondent.
DECISION AND ORDER
Case No. 20-45
By this appeal, Petitioners, Mike Favero, seeks access to records allegedly held by Respondent, the Logan City School District.
FACTS
On or about March 2, 2020, Mr. Favero made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Favero requested “all emails and text messages exchanged to and or from Superintendent Frank Schofield, Principal Ken Auld and Board member Ann Geary on Logan City Schools Districts computers or cell phones.”
Respondent partially denied Mr. Favero’s request indicating that a portion of the request was protected under GRAMA under the attorney client privilege. Mr. Favero filed an appeal with the Chief Administrative Officer and received a denial of his appeal on July 23, 2020.
Thereafter, Mr. Favero filed an appeal with the State Records Committee (“Committee”). On September 10, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA states that a record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). A record that is private, controlled, or protected under §§ 63G-2-302, -303, -304, & -305 are not public records. Utah Code § 63G-2-201(3)(a). Additionally, records to which access is restricted pursuant to federal statute or federal regulation are not public records. Utah Code § 63G-2-201(3)(b).
2. Respondent provided to the Committee copies of the disputed records with a three page listing of 93 separate e-mails grouped by date, which also showed time, sender, recipient, subject, and GRAMA statutory references for each e-mail.
3. The Committee reviewed all 93 e-mails in camera, and hereby uphold Respondent’s classifications of the records as non-public based upon Respondent’s records classifications and statutory references except as otherwise noted in this Order.
4. The e-mails between November 28, 2018 to March 6, 2019 should be classified as public records but subject to redactions for protected attorney correspondence, attorney opinions, and names pursuant to Utah Code § 63G-2-305(17) & (18).
5. The two e-mails dated June 3, 2019 and the e-mail dated June 7, 2019 should be classified as public records.
6. The name appearing on Page 238 of the provided documents should be redacted.
7. The three e-mails on June 24, 2019 at 8:01 PM, 8:16 PM, & 8:18 PM are public records subject to redactions pursuant to Utah Code § 63G-2-305(17) & (18). Additionally the e-mail from June 24, 2019 at 10:32 PM should be similarly made public subject to the same redactions because it is part of the same thread of the previous three e-mails from June 24, 2019.
8. The e-mail dated September 16, 2019 and the two e-mails dated September 19, 2019 are public records subject to redactions pursuant to Utah Code § 63G-2-305(10(d).
9. The e-mail dated March 6, 2020 is a public record.
10. All records that have been ordered to be disclosed are also under the requirement that any student names appearing in the records should be redacted pursuant to Utah Code § 63G-2-107(2).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mike Favero 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.
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).
Entered this 21 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
OZWALD BALFOUR, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 20-52
By this appeal, Petitioner, Ozwald Balfour, seeks access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On or about April 6, 2020, Mr. Balfour made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Balfour requested “[e]ntries in [Respondent’s] Offender History Report...made after 04/21/2016 to present.”
On or about April 16, 2020, Respondent notified Mr. Balfour that his request was denied and asked that Mr. Balfour specify which records he needed stating that there were too many offender history reports. Mr. Balfour appealed the denial. Deputy Director James Hudspeth denied the appeal restating that Mr. Balfour would need to clarify what type of entries were being sought and provide further clarification.
Thereafter, Mr. Balfour filed an appeal with the State Records Committee (“Committee”). On October 8, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. During the hearing, counsel for Respondent suggested that the parties be given time to meet and determine if Mr. Balfour’s request could be made more specific. Accordingly, the Committee unanimously voted to continue the hearing to the next scheduled hearing date.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ozwald Balfour is hereby CONTINUED.
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 party’s 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).
Entered this 20 day of October 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
EMIGRATION IMPROVEMENT DISTRICT. Respondent.
DECISION AND ORDER
Case No. 20-44
By this appeal, Petitioner, Steven Onysko, seeks access to records allegedly held by Respondent, Emigration Improvement District.
FACTS
On or about March 13, 2020, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested “all records and documents relating to lead in, including but not limited to, lead contamination of, public drinking water in Emigration Improvement District.”
Respondent notified Mr. Onysko that there would be a fee assessed in order to fulfill the records request. Mr. Onysko considered this a de facto denial of his records request and filed an appeal with Respondent’s Chief Administrative Officer. On April 21, 2020, the Chief Administrative Officer invited Mr. Onysko to resubmit his appeal. On May 6, 2020, Mr. Onysko resubmitted his appeal, but the appeal was not answered the second time.
On June 19, 2020, Mr. Onysko filed an appeal with the State Records Committee (“Committee”). On September 10, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1).
2. A governmental entity shall as soon as reasonably possible, but no later than 10 business days after receiving a written request: (1) Approve the request and provide a copy of the record; (2) Deny the request in accordance with Utah Code § 63G-2-205; (3) Notify the requester that it does not maintain the record and then provide information concerning the governmental entity that does maintain the record; or (4) Notify the requester that one of the “extraordinary circumstances” listed in Utah Code § 63G-2-204(6) exist. Utah Code § 63G-2-204(4)(b).
3. “Extraordinary circumstances” may exist allowing a governmental entity to delay approval or denial by a period of additional time if the request is for a voluminous quantity of records or a record series containing a substantial number of records. Utah Code § 63G-2-204(6)(c).
4. Respondent argued that the language of Mr. Onysko’s records request was so broad that it “would encompass any letters, emails, meeting minutes, bond documents, website pages, etc. from the time [Respondent] was formed to the present that have any mention of lead.” Respondent added that it is a small local district that does not have a system that allows a computerized search of “lead” which would require Respondent to review every document it has, many of which only exist in paper form.
5. After considering the arguments of the parties, the Committee finds that extraordinary circumstances exist allowing for additional time for Respondent to approve or deny Mr. Onysko’s records request. Since the records have not been gathered and classified by Respondent, the Committee does not have the ability to determine whether the requested records are considered public or non-public records.
6. Concerning the amount of fees Respondent can charge Mr. Onysko, a governmental entity may charge a reasonable fee to cover its actual cost of providing the records to a requester pursuant to Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person’s needs when the governmental entity compiles a record in a form other than that normally maintained by the governmental entity, however, the petitioner specifically requested records in a form normally maintained by the respondent. Utah Code § 63G-2-203(2)(a)(i). Actual costs may also include an hourly charge that does not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b).
7. A governmental entity may not charge for: (1) The first quarter hour of staff time pursuant to Utah Code § 63G-2-203(2)(c); or (2) Reviewing a record to determine whether it is subject to disclosure or for inspecting a record pursuant to Utah Code § 63G-2-203(5). Additionally, a governmental entity may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of a person to inspect and receive a copy of a record under GRAMA. Utah Code §63G-2-201(13).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko is hereby DENIED.
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.
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).
Entered this 21 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ALEXANDER CRAMER, Petitioner, v.
SUMMIT COUNTY. Respondent.
DECISION AND ORDER
Case No. 20-62
By this appeal, Petitioner, Alexander Cramer, seeks access to records allegedly held by Respondent, Summit County.
FACTS
On May 6, 2020, Petitioner Alexander Cramer, on behalf of The Park Record, requested correspondence between April 13, 2020 and May 1, 2020 regarding Respondent’s Joint Public Health Order 2020-05 issued on April 30, 2020. Mr. Cramer stated that he should receive a fee waiver for the records because they would be used “in newspaper articles in furtherance of the public good in knowing how its government has responded to the COVID-19 pandemic.”
In an e-mail dated May 11, 2020, Blaine S. Thomas, Deputy County Attorney for Respondent, denied Mr. Cramer’s records request. Mr. Thomas stated that the records were classified as protected records because they contain sensitive information the disclosure of which would jeopardize the security of governmental programs contrary to law or public policy pursuant to Utah Code § 63G-2-305(12). Mr. Thomas further stated that most of the records are protected by the attorney-client privilege under Utah Code § 63G-2-305(17) or drafts under Utah Code § 63G-2-305(22).
On May 28, 2020, Mr. Cramer filed an appeal with Respondent’s Chief Administrative Office. On June 4, 2020, Thomas S. Fisher, County Manager for Respondent, issued a decision partially granting the appeal for 26 records, but denying the appeal for the remaining requested records. Mr. Cramer filed an appeal with the State Records Committee (“Committee”) on July 2, 2020. The present appeal was first heard by the Committee on September 24, 2020 with each of the parties participating electronically. At that hearing, the Committee unanimously voted to continue the hearing to November 12, 2020, in order to allow the Committee members to properly review the records provided by the Respondent in camera. See, Cramer v. Summit Cty., State Records Committee Order No. 20-51 (Sept. 30, 2020). After having reviewed the records in camera, the Committee held a hearing on November 12, 2020 and 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 § 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. Records that are subject to the attorney client privilege, or prepared for or by an attorney of a governmental entity for, or in anticipation of litigation, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17) & (18). Drafts, unless otherwise classified as public, are also protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(22).
3. After having reviewed the records in camera, the Committee finds that the disputed records should be released to Mr. Cramer as public records. The Committee notes that the review of the records show that they involve the conduct of the public’s business regarding COVID-19, an issue for which there is great public interest regarding the actions of governmental entities. See, Utah Code § 63G-2-102(1)(a).
4. The Committee found that some of the records are records that Respondent claims to be covered by the attorney-client privilege pursuant to Utah Code § 63G-2-305(17). However, many of the records that are claimed to be protected pursuant to Utah Code § 63G-2-305(17) do not involve legal counsel or attorney impressions, and instead appear to be records generated pursuant to the “ordinary course of business” of Respondent dealing with the COVID-19 pandemic without the prospect of litigation. See, S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88 ¶ 25, 200 P.3d 643, 652. Additionally, some of the records involved drafts which can be classified as protected records pursuant to Utah Code § 63-2-305(22).
5. Accordingly, the Committee upon consideration and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order disclosure of the records. Many of the records should be considered public records, but even for records where the information was properly classified as protected, the public interest favoring access is greater than the interest favoring restriction of access. Utah Code § 63G-2-403(11)(b). The Committee finds that Mr. Cramer has established by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access. See, Utah Code § 63G-2-406(1). However, private information contained in the employee newsletter shall be redacted by Respondent as non-public information prior to release of the records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Alexander Cramer is hereby GRANTED.
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.
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).
Entered this 23 day of November 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 20-59
By this appeal, Petitioner, Steven Onysko, seeks access to records allegedly held by Respondent, Attorney General’s Office.
FACTS
On or about October 24, 2019, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested “all records and documentation relating to … alteration, changes, reprogramming, deactivation, or other conduct” with respect to a former Civil Deputy’s building access cards.
On November 7, 2019, Respondent notified Mr. Onysko that they were not responsible for handling building access cards and directed Mr. Onysko to the appropriate state agency that handled said building access cards. Mr. Onysko filed an appeal with the Chief Administrative Officer noting that there should be records of communications instructing the deactivation of the building access card. On November 26, 2019, Respondent granted Mr. Onysko’s appeal and provided a one-page exchange of text messages which included the request to disable the building access card. However, the personal mobile telephone number of the former Chief Deputy was redacted.
On December 4, 2019, Mr. Onysko filed an appeal with the State Records Committee (“Committee”) appealing the redaction of the record provided by Respondent. On November 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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. Government records concerning a current or former employee with a governmental entity that would disclose that individual’s home telephone number is a private record. Utah Code § 63G-2-302(1)(g). Because of the technology advances in today’s society, a personal mobile telephone number should also be considered a private non-public record similar to an individual’s home telephone number under Utah Code § 63G-2-302(1)(g). See, Uno v. Salt Lake City Sch. Dist., State Records Committee Case No. 10-18 (Sept. 16, 2010), ¶¶ 6 & 8.
3. The Committee agrees with Respondent’s argument that a personal mobile telephone number of a former government employee is private non-public information pursuant to Utah Code § 63G-2-302(1)(g). Accordingly, the Committee finds that Respondent’s redaction of the former Civil Deputy’s personal mobile telephone number from the document provided to Mr. Onysko was appropriate.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko is hereby DENIED.
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.
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).
Entered this 23 day of November 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UTAH ANIMAL RIGHTS COALITION, Petitioner, v.
DEPARTMENT OF AGRICULTURE & FOOD. Respondent.
DECISION AND ORDER
Case No. 21-06
Petitioner, the Utah Animal Rights Coalition, appeals the decision of Respondent, the Utah Department of Agriculture & Food, to deny access to records requested by Petitioner pursuant to the Government Records Access and Management Act (“GRAMA”). The present appeal was originally heard by the State Records Committee (“Committee”) on December 10, 2020 with each of the parties participating electronically. See, Utah Animal Rights Coalition v. Dept. of Agric. & Food, State Records Committee Order No. 20-66 (Dec. 21, 2020). At that hearing, the Committee voted unanimously to continue the hearing to the next available Committee hearing date to allow for an in camera review of the records.
FACTS
In a letter dated October 14, 2020, Jeremy Beckham, Executive Director for Petitioner, made a request for records to Respondent pursuant to GRAMA. Petitioner generally requested records from Respondent regarding Utah mink farms including records detailing issues arising from the COVID-19 pandemic. Mr. Beckham wrote that Petitioner “intends to use these records to enhance public understanding of this important issue and to disseminate information to the news media and the public at large.”
In a letter dated October 19, 2020, Amanda Price, GRAMA Officer for the Division of Animal Industry, partially denied Petitioner’s records request. Ms. Price stated that some records are not prepared, owned, or maintained by Respondent, while other records are protected records because they are related to the identity of mink farms subject to ongoing investigations pursuant to Utah Code §§ 63G-2-305(10) & -305(49).
Petitioner filed an appeal with the Chief Administrative Officer with Respondent on November 12, 2020, arguing that the records should be made public because “mink are the only species known to readily transmit the [COVID-19] virus both to and from humans...” Petitioner’s appeal was denied by Deputy Commissioner Kelly Pehrson in an order dated November 24, 2020. Petitioner filed an appeal to the Committee, who after open deliberation during their January 14, 2020 hearing, 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 § 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. Records created or maintained for civil, criminal, or administrative enforcement purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity if release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; or (2) Reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings. Utah Code § 63G-2-305(10)(a) & (b).
3. Records of investigations of loss occurrences and analyses of loss occurrences that may be covered by the Risk Management Fund, the Employers’ Reinsurance Fund, the Uninsured Employers’ Fund, or similar division in other governmental entities, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(24).
4. Records, other than personnel evaluations, that contain a personal recommendation concerning an individual, is a protected record if properly classified by a governmental entity and if disclosure would either: (1) Constitute a clearly unwarranted invasion of personal privacy; or (2) Disclosure is not in the public interest. Utah Code § 63G-2-305(25).
5. Records provided by the United States or by a government entity outside the state that are given to a governmental entity with a requirement that they be managed as protected records, are considered protected records if properly classified by a governmental entity and the providing entity certifies that the record would not be subject to public disclosure if retained by it. Utah Code § 63G-2-305(31).
6. Records of the Department of Agriculture and Food that provides identification, tracing, or control of livestock diseases, including any program established under the Utah Livestock Brand (Title 4, Chapter 24) or Control of Animal Disease (Title 4, Chapter 31), are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(49).
7. Even though a record has been properly classified private, controlled, or protected by a governmental entity, the Committee may upon consideration and weighing various interests and public policies pertinent to the classification and disclosure or nondisclosure of a record, order the disclosure of information in the record if the public interest favoring access is greater than or equal to the interest favoring restriction of access. Utah Code § 63G-2-403(11)(b).
8. After considering all the evidence and arguments presented by the parties including an in camera review of the records, the Committee finds as follows:
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Utah Animal Rights Coalition, is hereby GRANTED IN PART and DENIED IN PART as stated above.
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.
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).
Entered this 25 day of January 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF DRINKING WATER. Respondent.
DECISION AND ORDER
Case No. 20-54
By this appeal, Petitioner, Steven Onysko, seeks access to records allegedly held by Respondent, Department of Environmental Quality, Division of Drinking Water.
FACTS
On November 4, 2019, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested “viewing access to all records and documents” related to lead contamination in public drinking water from the Emigration Improvement District. Mr. Onysko requested that he view or inspect the records only, and checked the box requesting a fee waiver because “[r]eleasing the record primarily benefits the public.”
On November 14, 2019, Respondent notified Mr. Onysko that they his request was being processed, but because it was so broadly worded and not limited by a time period, it would likely require significant time to complete his request. Mr. Onysko was also notified that no decision had been made on his fee waiver request until after Respondent had an opportunity to estimate the level of work required to perform the search.
After receiving a reply to Respondent’s initial response from Mr. Onysko on November 17, 2019, Marie E. Owens, Director of Respondent provided a seven page letter dated December 6, 2019 to Mr. Onysko. Ms. Owens stated in the letter that Mr. Onysko’s request to review the records in person was denied because providing physical copies of the records would cost approximately $2,934.56. Ms. Owens further stated that Respondent “is not willing to waive the recoverable fees” because the “work is expected to require significant time and resources” and with a limited staff and financial resources, Respondent “will likely be required to rely on staff from other divisions, for which it will be required to pay outside of its normal budget.”
In a letter dated January 3, 2020, Mr. Onysko filed an appeal with Kim Shelley, Director of Operations for the Utah Department of Environmental Quality (“DEQ”). Mr. Onysko claimed that the documents that had been provided were “incomplete and inaccurate.” Mr. Onysko also claimed that Respondent’s “denial of fee waiver for additional search of [Respondent’s] records is not consistent” with GRAMA. Mr. Onysko argued that the “demand of my payment of $2,934.56…is egregiously punitive in magnitude.”
In a letter dated January 17, 2020, Ms. Shelley as Designated Chief Administrative Officer for DEQ, denied Mr. Onysko’s appeal. Ms. Shelley noted that “there has been no denial of your record request,” and that the “decision to grant or deny a request for a fee waiver is in the discretion of the agency and does not involve the balancing test that applies to the record requested itself”
Mr. Onysko filed an appeal with the State Records Committee (“Committee”) on February 27, 2020. On October 8, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). This fee shall be approved by the governmental entity’s executive officer. Id. A governmental entity may not charge a fee for: (1) Reviewing a record to determine whether it is subject to disclosure except as permitted by Utah Code § 63G-2-203(2)(a)(ii); or (2) Inspecting a record. Utah Code § 63G-2-203(5).
3. A governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).
4. Although throughout the records request appeals process, the issue of “fee waiver” was addressed by both parties, Mr. Onysko argued before the Committee that his appeal involved denial of access to records and did not involve the issue of a fee waiver. Mr. Onysko instead claimed that Respondent’s request for payment of fees prior to Mr. Onysko having access to the records is “illegitimate.”
5. After having reviewed the written and oral arguments of the parties, the Committee finds that Mr. Onysko’s appeal should be denied. Based upon Mr. Onysko’s testimony, the issue of whether there was an unwarranted denial of a fee waiver is not before the Committee. GRAMA does not grant the Committee the authority to review the reasonableness of a fee unless fees are used as a way to effectively deny access to public records. See, Hancock v. Utah Transit Auth., State Records Committee Case No. 10-13 (June 17, 2010); Utah Code §§ 63G-2-402(1)(a)(i) & -203(6)(a). Accordingly, Respondent’s decision to require Mr. Onysko to pay a fee prior to having the requested records provided to him is upheld.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko is hereby DENIED.
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 party’s 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).
Entered this 20 day of October 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DARREN ROSENSTEIN, Petitioner, v.
UTAH DEPARTMENT OF TRANSPORTATION. Respondent.
DECISION AND ORDER
Case No. 21-08
The present appeal was originally heard by the State Records Committee (“Committee”) on January 14, 2021, with each of the parties participating electronically. See, Rosenstein v. Utah Dept. of Transp., State Records Committee Case No. 21-02 (Jan. 25, 2021). The Committee unanimously voted to continue the hearing to the next available Committee hearing date in order to allow the Committee the necessary time to complete an in camera review of the records. Id. After having reviewed all provided records in camera, the Committee held a second electronic hearing on February 11, 2021. The Committee determined that the sample that had been provided to the Committee for its in camera review did not include all eight parts of Mr. Rosenstein’s records request. The Committee also determined that Respondent needs to classify the records as public or non-public with appropriate citations in order to allow the Committee to determine if Respondent’s classifications of the records is correct.
During the hearing, the Committee addressed the issue of whether Respondent could deny Mr. Rosenstein’s records request made pursuant to the Government Records Access and Management Act (“GRAMA”). Respondent argued that since Mr. Rosenstein, the TEA Group, and its affiliated entities, were involved in informal adjudicative proceedings with Respondent, the requested records did not have to be disclosed because the Utah Administrative Procedures Act (“UAPA”) prohibited discovery. See, Utah Code § 63G-4-203(1)(e) & (f). Counsel for Respondent contended that if Respondent was not required to provide records to Mr. Rosenstein pursuant to UAPA, Respondent was also not required to provide records to Mr. Rosenstein pursuant to GRAMA.
After carefully considering Respondent’s arguments, the Committee finds that they have no merit. Although Utah Code § 63G-2-201(6)(a) states that if disclosure of a record is governed or limited pursuant to another state statute, disclosure is governed by the specific provisions of that statute, it would be illogical to deny a person access to a record that is otherwise considered a public record. A person has the right to inspect a public record free of charge and the right to take a copy of a public record subject to §§ 63G-2-203 & -204. A request for a public record under GRAMA is different than a discovery request or a subpoena. “Subpoenas and other methods of discovery under the state or federal statute or rules of civil, criminal, administrative, or legislative procedures are not written requests under Section 63G-2-204.” Utah Code § 63G-2-207(1). Additionally, UAPA does not apply to GRAMA except as provided in Utah Code § 63G-2-603. Utah Code § 63G-2-104.
A person’s right to inspect a public record and take a copy of a public record should not be limited simply because the person is involved in litigation or administrative proceedings. If such a limitation was allowed, it would lead to the absurd result that one person could be denied access to a public record while any other person requesting the same record would be granted. The intent of the Legislature through GRAMA is to “promote the public’s right of easy and reasonable access to unrestricted public records.” Utah Code § 63G-2-102(3)(a). Denial of access to a public record to any person subject only to the limitations of §§ 63G-2-203 & -204, is not consistent with the legislative intent to provide the public easy, reasonable, and unrestricted access to public records.
Accordingly, Respondent is ordered to continue gathering records responsive to Mr. Rosenstein’s records request, classify the records as public or non-public with appropriate citations, and provide the records to the Committee to review in camera. The present case is continued until the next available hearing date.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Darren Rosenstein is hereby CONTINUED.
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.
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).
Entered this 22 day of February 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TIFFANY GILMAN, Petitioner, v.
UNIFIED POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 20-22
By this appeal, Petitioner, Tiffany Gilman, seeks access to records held by Respondent, the Unified Police Department.
FACTS
On June 4, 2020, Ms. Gilman made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). She requested copies of "[a]ny records related to the missing person case of Nancy Wilcox." On June 10, 2020, Respondent's Records Supervisor denied Ms. Gilman's GRAMA request because the case was still active and unsolved. The Records Supervisor stated that the records were classified as protected non-public records pursuant to Utah Code § 63G-2-305(10)(a). Ms. Gilman appealed the denial to Harry Souvall, Respondent's Chief Legal Counsel. In a letter dated September 3, 2020, Mr. Souvall agreed that the case was unsolved and denied the appeal.
In a letter dated September 14, 2020, Ms. Wilcox appealed Respondent's GRAMA request denial to the State Records Committee ("Committee"). On March 11, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. See Gilman v. Unified Police Depart., State Records Committee Case No. 21-14 (March 22, 2021). At that hearing, the Committee ordered that the hearing be continued in order to review all the records in camera. Id. On April 8, 2021, the Committee again held an electronic hearing. After carefully considering the parties' arguments and the evidence presented, the Committee 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 § 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. Utah Code § 63G-2-305(10) generally protects criminal investigations allowing governmental entities to classify records as protected non-public records if disclosure of the records reasonably could interfere with the investigation, reasonably could be expected to disclose the identity of a source, or reasonably could be expected to disclose investigative techniques.
3. Nancy Wilcox was last seen on October 2, 1974. Convicted serial killer Ted Bundy claimed prior to his execution in 1989 that he was responsible for Ms. Wilcox’s murder and told law enforcement where her body could be located. However, Ms. Wilcox’s body has not been located and she is still considered by law enforcement to be a missing person.
4. Ms. Gilman argued that since Ms. Wilcox went missing more than 45 years ago, there is currently a greater benefit to the public for release of the information than there is for law enforcement keeping the information non-public for its criminal investigation. Ms. Gilman argued that much is known about Mr. Bundy, but little is known about the victims. Counsel for Respondent argued that although Mr. Bundy admitted to the murder of Ms. Wilcox, his confession days before his execution date may have been a stalling tactic and that law enforcement still considers Ms. Wilcox’s disappearance to be an open investigation requiring the investigation records to remain non-public.
5. After having reviewed the oral and written arguments of the parties and reviewing the requested records in camera, the Committee finds the requested documents should be classified as public subject to redaction of names not known outside of government pursuant to Utah Code § 63G-2-305(10)(d). Additionally, release of the records would not be considered a clearly unwarranted invasion of personal privacy because the story about Mr. Bundy is well known by the public and her disappearance occurred more than 45 years ago.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Tiffany Gilman, is hereby GRANTED subject to redactions pursuant to Utah Code § 63G-2-305(10)(d).
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.
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).
Entered this 19th day of April 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SAM STECKLOW, Petitioner, v.
SALT LAKE CITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 21-23
By this appeal, Petitioner, Sam Stecklow, seeks access to records held by Respondent, the Salt Lake City Police Department (“SLCPD”).
FACTS
In a letter dated October 5, 2020, Mr. Stecklow made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Stecklow requested digitally maintained records regarding closed SLCPD officer incidents involving the use of force, firearm discharges, traffic collisions, and police-involved shootings including those resulting in death. Mr. Stecklow stated in the letter that he was a journalist with the Invisible Institute, a nonprofit journalistic production company whose “mission is to enhance the capacity of citizens to hold public institutions accountable.”
On October 26, 2020, Candee Allred, GRAMA Coordinator for the SLCPD, stated that she was providing records since 2016 where the charges on which the disciplinary action was based were sustained and the time periods for administrative appeal had expired. Ms. Allred further stated that “[a]ll other Internal Affairs matters have been classified as private records” pursuant to Utah Code § 63G-2-302(2)(d).
In a letter dated October 26, 2020, Mr. Stecklow filed an appeal with the Salt Lake City Recorder’s Office. Mr. Stecklow argued that the records of un-sustained cases should be released because of a compelling public interest in the records. In a letter dated November 9, 2020, Rachel Otto, Chief of Staff for the Office of the Salt Lake City Mayor, denied Mr. Stecklow’s appeal. Ms. Otto found that GRAMA does not require the release of un-sustained discipline for police officers, and that release of data from the records would constitute a clearly unwarranted invasion of personal privacy pursuant to Utah Code § 63G-2-302(2)(d).
In a letter dated November 23, 2020, Mr. Stecklow appealed Respondent's GRAMA request denial to the State Records Committee ("Committee"). On April 29, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the parties' arguments and the evidence presented including an Amicus Brief from the City of South Jordan, the Committee 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 § 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. Records concerning a current or former employee of a governmental entity including performance evaluations and personal status information, are generally private if properly classified by a governmental entity but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o).” Utah Code § 63G-2-302(2)(a). Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy, are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
3. After having reviewed the records in camera and considering the arguments of the parties, the Committee finds that Respondent properly classified the requested records as protected records pursuant to Utah Code § 63G-2-302(2)(a). However, upon consideration and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, the Committee finds that the public interest favoring access is greater than the interest favoring restriction of access. See, Utah Code § 63G-2-403(11)(b). The requested records involve an issue of great public interest: the use of force by police officers. Although the requested records were properly classified as private records pursuant to Utah Code § 63G-2-302(2)(a), the Committee believes it is in the public’s interest to release these records. However, in order to preserve the personal privacy of the individuals named in the records, Respondent may redact the names of individuals prior to releasing the records. Accordingly, the Committee finds that the Category 1 & 2 records should be provided with redactions of individual names. Regarding the accident records, the Committee finds that they should remain private because the public interest is not greater than the public policy for keeping those records non-public.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sam Stecklow, 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.
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).
Entered this 10 day of May 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
J. ROBERT LATHAM, Petitioner, v.
UTAH DEPARTMENT OF HUMAN SERVICES. Respondent.
DECISION AND ORDER
Case No. 20-58
By this appeal, Petitioner, J. Robert Latham, seeks access to records allegedly held by Respondent, Utah Department of Human Services.
FACTS
On or about April 10, 2020, Mr. Latham made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Latham requested, “the Office of Quality and design’s source material…” for specific statements contained in its 2018 and 2019 Southwest Qualitative Case Review (“QCR”) reports.
Respondent made a determination that there were no records responsive to the request of which Mr. Latham was the subject of the records under Utah Code § 63G-2-202. Respondent also made a determination that records responsive to the request of which Mr. Latham was not the subject of the records should be classified as protected pursuant to Utah Code § 63G-2-305.
In a letter dated May 28, 2020, Mr. Latham appealed the denial to the Chief Administrative Officer. The Chief Administrative Officer upheld the denial. Thereafter, Mr. Latham filed an appeal with the State Records Committee (“Committee”). On November 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity if release of the records: (1) Reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; or (2) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would interfere with enforcement or audit efforts. Utah Code § 63G-2-305(10)(b) & (d).
3. Records the disclosure of which would jeopardize the security of governmental property, governmental programs, or governmental recordkeeping systems from damage, theft or other appropriation or use contrary to law or public policy, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(12).
4. Counsel for Respondent argued that the requested records were properly classified as protected records. Counsel stated that the QCR process involves interviewing participants in the child welfare process and is an audit and review function of the Utah Division of Child and Family Services. The comments in the report reflect the opinions of private citizens who are interviewed, and the interview comments/notes are summarized into a report that guides systemic improvement.
5. After having considered the written and oral arguments of the parties, the Committee finds that the requested records were properly classified as protected records pursuant to Utah Code §§ 63G-2-305(10)(b), -305(10)(d), and -305(12). The records are considered audit records and disclosure of the records would jeopardize the security of government programs for uses contrary to law or public policy. While Mr. Latham argues he has an interest in reviewing the records, Respondent has demonstrated a greater public interest in keeping these records non-public in order to allow the QCR process to properly continue.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, J. Robert Latham is hereby DENIED.
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.
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).
Entered this 23 day of November 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DESERET NEWS vs.
UNIVERSITY OF UTAH
DECISION AND ORDER, CASE No 94-04
By this appeal, Appellant, the Deseret News, seeks an order compelling the University of Utah to release to it records appellant described in its records request as follows:
Documents relating to amount of licensing fee and royalty in licensing University of Utah-developed "cold fusion" rights; documents relating to the cost to the University of Utah of developing "cold fusion" technology since Jan. 1, 1989. Documents requested include, but are not limited to, the following: information relating to the sale price, licensing fee or royalty to be paid to the University of Utah arising from the ENECO transaction; information about the cost to the university of research aimed at developing "cold fusion" technology.
Appellant appeared personally through employee/staff writer Joseph M. Bauman at the hearing held March 23, 1994. Appellee appeared at the hearing through counsel, Karen W. McCreary.
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal is denied and the appellee's withholding of the records is affirmed on the basis of Utah Code Ann. 53B-16-302 and Utah Code Ann. 63-2-304(2).
ORDER
WHEREFORE, IT IS ORDERED that appellant's appeal is denied.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-404 & 502(7). 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.
Entered this 29th day of March, 1994.
MAX J. EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WILLIAM REMINE, Appellant vs.
UTAH STATE DEPARTMENT OF CORRECTIONS, Appellee
DECISION AND ORDER, CASE NO 94-08
By this appeal, Appellant, William Remine, seeks an order compelling Appellee to release to him the following records:
1) Policy documents including FDr 25, FGr 25 and policy documents that govern anything required to be logged in the daily unit log;
2) A list of inmates (and USP numbers) who are housed in Section #4 of Uinta II from January 1993 through December 1993;
3) A list of staff who worked in Uinta II from January 1993 through December 1993.
Appellant appeared personally at the hearing held June 21, 1994. Appellee appeared at the hearing through employees.
The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the testimony and argument, now issues the following decision and order.
STATEMENT OF REASONS FOR DECISION
The appeal regarding the policy documents identified in 1) above, is denied. Those documents are "protected" under Utah Code Ann. 63-2-304(11) (1993 Supp.).
The appeal regarding release of the list of inmates identified in 2) above is granted/ insofar as the list of the indicated inmates is a general list not including USP numbers and not requiring further breakdowns or specifics. The classification of those records as "protected" under Utah Code Ann. 63-2-304(11) is confirmed, but the Committee concludes that the public interest favoring the indicated access under the facts of this case outweighs the interest favoring restriction of access. See Utah Code Ann. 63-2-403(11) (b) (1993 Supp.). The appeal regarding release of the list of staff identified in 3) above is granted, insofar as the list is general, not requiring specifics such as shifts worked or more specific information regarding assignments. The basis for release is the same as for the list of inmates discussed above.
ORDER
WHEREFORE, IT IS ORDERED that Appellant's appeal is granted in part and denied in part, the policy documents identified in 1) above not be released, but the lists identified in 2) and 3) above to be released to Appellant in accordance with the previously stated reasons for the decision and the limitations stated therein. The documents to be released shall be supplied at a reasonable cost to Appellant as set by Appellee.
RIGHT TO APPEAL
Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 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 by Utah Code Ann. 63-2-402 & 502(7). 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.
Entered this 23rd day of June, 1994.
MAX J EVANS,
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NICOLE NOREN on behalf of ESPN, Petitioner, v.
UNIVERSITY OF UTAH. Respondent.
DECISION AND ORDER
Case No. 20-49
By this appeal, Petitioner, Nicole Noren on behalf of ESPN, seeks access to records allegedly held by Respondent, University of Utah.
FACTS
In a document dated October 18, 2019, Ms. Noren, a Producer with the Cable Television Network “ESPN”, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to Respondent, the University of Utah. Ms. Noren requested access and copies of records held by Respondent relating to the murder of University of Utah student Lauren McCluskey. As part of her request. Mr. Noren asked specifically for records regarding three individuals who were working as police officers with the University of Utah Police Department.
On multiple occasions, Respondent contacted via e-mail Ms. Noren regarding requests for extensions of time to fulfill the request and the need for prepayment of fees. In a letter dated June 17, 2020, Ms. Noren stated that there had been “(6) missed deadlines in which the University Records Office has not completed the records request and requested another extension.” Ms. Noren further stated that she considered Respondent’s actions to be a “constructive denial” of her records requests. On June 29, 2020, Respondent stated that all records that could be provided had been provided but some records had been withheld and/or redacted including records the disclosure of which “would jeopardize the life or safety of those individuals”.
On August 2, 2020, Ms. Noren on behalf of ESPN, filed an appeal with the State Records Committee (“Committee”). On September 24, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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. Records the disclosure of which would jeopardize the life or safety of an individual are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(11).
3. The issue before the Committee was whether a video involving Lauren McCluskey and police officers for the University of Utah Police Department should be released with unredacted images of the officers in the video. Legal counsel for Respondent argued that the images of the officers “would most certainly expose the officers to additional risks to their safety and lives.” Legal counsel for ESPN argued that there would not be an additional safety risk for the officers because their images have already been made public including 99 high resolution photographs of one of the officers being released by the Logan City Police Department.
4. After considering the evidence and the arguments by the parties, the Committee is not convinced that release of the video unredacted “would jeopardize the life or safety” of the police officers. The evidence shows that images of the students were not redacted images of one of the police officers has already been released to the public and a further release by Respondent would have little impact on the public’s current knowledge of the officers. Accordingly, the Committee finds that the video should be released without redactions of the images of the officers.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nicole Noren on behalf of ESPN is hereby GRANTED.
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.
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).
Entered this 30 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH STATE TREASURER. Respondent.
DECISION AND ORDER
Case No. 20-56
By this appeal, Petitioners, Brady Eames, seeks access to records allegedly held by Respondent, the Utah State Treasurer.
FACTS
In an e-mail dated June 5, 2020, Mr. Eames made a request for records to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested “any and all mandated written reports documenting any and all deposits and investments made by the State Treasurer” as filed with the State Money Management Council on or before January 31st and July 31st of 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, and 2019. Mr. Eames also requested “any and all written reports filed by the State Treasurer” with the State Money Management Council which include: (1) The amount of public funds in the possession or control of the State Treasurer; (2) The details of the nature and extent of the deposit and investment of such public funds; and (3) The details of the rate of return on each deposit or investment of such public funds. Additionally, Mr. Eames asked for an expedited response and a fee waiver because the records “primarily benefits the public of Logan City and Cache County.”
In a letter dated May 29, 2020, Respondent notified Mr. Eames that his request lacked sufficient specificity to provide responsive records. Mr. Eames appealed the denial to the Chief Administrative Officer. In a letter dated June 19, 2020, Kirt W. Slaugh, Chief Deputy State Treasurer, provided the last four Deposit and Investment Reports submitted by Respondent to the Money Management Council, and stated that additional reports have been archived and are available upon payment of a $118.00 fee.
Mr. Eames filed an appeal with the State Records Committee (“Committee”). On November 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A person making a request for a record shall submit to the governmental entity that retains the record a written request that contains a description of the record requested that identifies the record with reasonable specificity. Utah Code § 63G-2-204(1)(a)(ii). In response to a request for a record, a governmental entity is not required to compile, format, manipulate, package, summarize, or tailor information. Utah Code § 63G-2-201(8)(b).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). A governmental entity is encourage to fulfill a record request without charge if it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record; or (3) The requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4).
3. A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee waiver and any determination under -203(4). Utah Code § 63G-2-203(6)(b).
4. Respondent argued that Mr. Eames’ appeal should be denied because: (1) Respondent does not maintain the records in the format requested; (2) The request fails to identify the records with enough specificity to enable Respondent to ascertain what records are being requested; (3) Financial information regarding the PTIF is publicly available; and (4) The denial of Mr. Eames’ request for a fee waiver was not unreasonable because there is no public benefit, Mr. Eames is not the subject of the records, and Mr. Eames’ legal rights are not implicated by the records.
5. A review of Mr. Eames’ records request to Respondent shows that it is not reasonably specific as required by Utah Code § 63G-2-204(1)(a)(ii). The request is broad and requests that information be compiled and tailored by Respondent for Mr. Eames. Further, Respondent properly referred Mr. Eames to online resources and governmental entities that have the records. A review of Respondent’s denial of Mr. Eames’ request for a fee waiver shows that it was not an unreasonable denial. Accordingly, the Committee finds that Respondent properly responded to Mr. Eames’ records request and his appeal should be denied.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is hereby DENIED.
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.
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).
Entered this 23 day of November 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JESSICA MILLER on behalf of the SALT LAKE TRIBUNE, Petitioner, v.
WEST VALLEY CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 20-65
By this appeal, Petitioner, Jessica Miller on behalf of the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the West Valley City Police Department.
FACTS
On or about July 27, 2020, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “[a]ll body camera footage from Aug 23, 2019 police shootings of” a specific individual. On September 6, 2019, Respondent released four separate officers body camera videos, each less than five minutes long, showing the actual incident. The Salt Lake District Attorney’s Office was notified of the request upon initial receipt and stated that they believed the release of the videos may impede their investigation. Respondent currently has in its possession and under its control a total of six videos with over 9 hours and 19 minutes of footage that have been classified as private.
Petitioner appealed the denial of those records. There was no response from Respondent regarding the appeal therefore, Petitioner filed an appeal with the State Records Committee (“Committee”). On December 10, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After hearing the arguments of the parties, the Committee unanimously voted to continue the hearing to the next scheduled hearing date in order to review the six videos in camera.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jessica Miller on behalf of the Salt Lake Tribune is hereby CONTINUED.
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.
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).
Entered this 21 day of December 2020
BY THE STATE RECORDS COMMITTEE
KENNETH WILLIAMS
Chair pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CODY YOUNG, Petitioner, v.
JUAB COUNTY, Respondent.
DECISION AND ORDER
Case No. 20-18
By this appeal, Petitioner, Cody Young, seeks access to records allegedly held by Respondent, Juab County.
FACTS
On or about August 26, 2019, Mr. Young submitted several requests for records pursuant to the Government Records Access and Management Act (“GRAMA”) to Respondent. Petitioner requested a number of records relating to his arrest and/or incarceration. On September 11, 2019, Respondent notified Mr. Young that his request had been denied and included very specific citations and reasoning concerning each request. Mr. Young appealed the denial and on October 4, 2019, the denial was upheld.
Thereafter, Mr. Young filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on April 9, 2020 and carefully considering the requested relief of the parties, the Committee 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 § 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. Records containing data on individuals, the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
3. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are considered protected records if properly classified if release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; or (2) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(a) and (d).
4. After considering the arguments of the parties, the Committee finds that the records that are in the possession of Respondent that have not been released to Mr. Young, were properly classified as non-public records pursuant to Utah Code §§ 63G-2-302(2)(d) & -305(10)(a) & (d), and therefore, not subject to disclosure.
5. Additionally, in response to a request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a). A governmental entity is not required to fill a person’s record request if the record requested is publicly accessible online or included in a public publication or product produced by the governmental entity receiving the request. Utah Code § 63G-2-201(8)(e). If a record is not maintained by a governmental entity but it is known which governmental entity maintains the record, the name and address of that governmental entity should be provided. Utah Code § 63G-2-204(4)(b)(iii).
6. After considering the evidence presented by Respondent, the Committee is convinced that Respondent does not possess any public records responsive to Mr. Young’s records request. The Committee finds that Respondent’s search for responsive records was thorough and commended the Respondent for answering each request individually and very specifically.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Cody Young is hereby DENIED.
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.
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).
Entered this 20th day of April 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH WILLIAMS, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH STATE TREASURER. Respondent.
DECISION AND ORDER
Case No. 20-57
By this appeal, Petitioners, Brady Eames, seeks access to records allegedly held by Respondent, the Utah State Treasurer.
FACTS
In an e-mail dated May 31, 2020, Mr. Eames made a request for records to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested “[a]ny and all financial institution records pertaining to the transfer of citizens tax money” to the Public Treasurer’s Investment Fund from the following institutes of higher education: Utah State University, the University of Utah, Weber State University, Southern Utah University, Snow College, Dixie State University, Utah Valley University, and Salt Lake Community College. Mr. Eames also requested any and all FINET records “pertaining to the transfer of citizens tax money to the PTIF” from the above named institutes of higher education. Mr. Eames further requested any and all investment income records pertaining to the transfer of citizens tax money to the PTIF from the above named institutes of higher learning.
In a letter dated June 12, 2020, Kirt W. Slaugh, Chief Deputy State Treasurer, stated that Mr. Eames’ request fails to provide a description of the record requested that identifies the record with reasonable specificity. Mr. Eames filed an appeal with Utah State Treasurer, David Damschen, in an e-mail dated June 17, 2020. Mr. Damschen affirmed Mr. Slaugh’s decision on July 1, 2020.
On July 17, 2020, Mr. Eames filed an appeal with the State Records Committee (“Committee”). On November 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1).
2. A person making a request for a record shall submit to the governmental entity that retains the record a written request that contains a description of the record requested that identifies the record with reasonable specificity. Utah Code § 63G-2-204(1)(a)(ii). Additionally, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
3. Counsel for Respondent argued that Respondent could not fulfill Mr. Eames’ request for records because he requested records “pertaining to the transfer of citizens tax money.” Counsel stated that ‘[t]here is no way to identify the sources of the monies deposited by educational institutions into the PTIF.” Money comes from multiple sources and cannot be identified solely as “citizens tax money.” Counsel noted that Mr. Eames should “contact the individual institutions for more detailed financial information” because Respondent “does not maintain or possess records that identify the transfer of tax money into the PTIF.”
4. After having considered the written and oral arguments of the parties, the Committee finds that Respondent does not have any records responsive to Mr. Eames’ request for “records pertaining to the transfer of citizens tax money” into the listed accounts by the names institutions of higher learning. Additionally, GRAMA does not require Respondent to create records in response to Mr. Eames’ records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is hereby DENIED.
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.
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).
Entered this 23 day of November 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JESSICA MILLER on behalf of the SALT LAKE TRIBUNE, Petitioner, v.
WEST VALLEY CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 21-03
The present appeal was previously heard by the State Records Committee (“Committee”) on December 10, 2020 with each of the parties participating electronically. See, Miller v. W. Valley Police Dept., State Records Committee Case No. 20-65 (Dec. 21, 2020). The Committee continued the case until January 11, 2021 in order to allow Committee members to have an opportunity to review six videos in camera related to the shooting of Michael Chad Breinholt while he was in police custody, resulting in his death on August 23, 2019. On January 11, 2021, the Committee held a hearing and deliberated concerning their in camera review of the records. After carefully considering the requested relief of the parties, the Committee 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 § 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. Records created or maintained for criminal enforcement purposes may be classified by a governmental entity as protected records if they reasonably could be expected to interfere with investigations undertaken for criminal or civil enforcement purposes, or would create a danger of depriving a person of a right to a fair trial or an impartial hearing. Utah Code § 63G-2-305(10)(a) & (c).
3. Counsel for Respondent argued that the six videos should remain non-public claiming that disclosure of the videos could interfere with Respondent’s investigation of the shooting death of Mr. Breinholt. Counsel also argued that release of the videos would create a danger of depriving the right of a fair trial for a person criminally charged relating to the circumstances surrounding Mr. Breinholt’s death.
4. After having considered the arguments of the parties and having reviewed the six videos in camera, the Committee finds that Respondent properly classified the videos as protected records pursuant to Utah Code § 63G-2-305(10). However, considering the fact that much of the video footage has already been released to the public including video of the actual shooting, and also considering the high public interest currently regarding police custody shootings, the Committee finds that the public interest favoring access is greater than or equal to the government’s interest favoring restriction of access. See, Utah Code § 63G-2-403(11)(b). Accordingly, the Committee finds that Petitioner’s records request should be granted and the videos should be released by Respondent as public records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jessica Miller on behalf of the Salt Lake Tribune is hereby GRANTED.
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.
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).
Entered this 25 day of January 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DARREN ROSENSTEIN, Petitioner, v.
UTAH DEPARTMENT OF TRANSPORTATION, Respondent.
DECISION AND ORDER
Case No. 21-35
On June 10, 2021, the State Records Committee (“Committee”) held an in-person hearing at the Taylorsville State Office Building, during which each of the parties participated electronically. The hearing was the fifth time the parties had appeared before the Committee, with the last appearance occurring on May 13, 2021. See, Rosenstein v. Utah Dept. of Transp., State Records Committee Case No. 21-29 (May 13, 2021). At the hearing, Respondent’s counsel requested that the hearing again be continued. The Committee voted unanimously to continue the present case until the Committee’s July 8, 2021 hearing.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Darren Rosenstein, is hereby CONTINUED.
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).
Entered this 21 day of June 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UTAH ANIMAL RIGHTS COALITION, Petitioner, v.
DEPARTMENT OF AGRICULTURE & FOOD. Respondent.
DECISION AND ORDER
Case No. 20-66
The present appeal was heard by the State Records Committee (“Committee”) on December 10, 2020 with each of the parties participating electronically. The Committee unanimously voted to continue the hearing to the next available Committee hearing date for an in camera review of the records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Utah Animal Rights Coalition, is hereby CONTINUED.
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.
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).
Entered this 21 day of December 2020
BY THE STATE RECORDS COMMITTEE
KENNETH WILLIAMS
Chair pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DARREN ROSENSTEIN, Petitioner, v.
UTAH DEPARTMENT OF TRANSPORTATION, Respondent.
DECISION AND ORDER
Case No. 21-53
On October 28, 2021, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. This hearing was a continuance from a previous appearance of the parties before the Committee, with the last appearance occurring on June 10, 2021. See, Rosenstein v. Utah Dept. of Transp., State Records Committee Case No. 21-35 (June 21, 2021). In order to allow the Committee members to have sufficient time to properly review the records in camera, the Committee voted unanimously to continue the hearing until the November 18, 2021 Committee hearing.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Darren Rosenstein, is hereby CONTINUED.
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).
Entered this 8 day of November 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CARALEE WOODS, Petitioner, v.
UTAH DEPARTMENT OF AGRICULTURE AND FOOD, Respondent.
DECISION AND ORDER
Case No. 21-11
By this appeal, Petitioner, Caralee Woods, seeks access to records allegedly held by Respondent, the Utah Department of Agriculture and Food.
FACTS
On September 2, 2020, Ms. Woods filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). The request to the Utah Department of Agriculture and Food (“UDAF”) was for any records regarding amendments to the Boulder Creek Canyon Ranch Conservation Easement (“BCCR Easement”). An e-mail was sent by UDAF dated September 11, 2020, that provided information regarding the request, including that the amendments for the BCCR Easement had not been finalized and UDAF did not possess a complete draft. Ms. Woods filed an appeal with Kelly Pehrson with UDAF, who upheld the original response by UDAF.
Ms. Woods filed an appeal with the State Records Committee (“Committee”). The Committee held a hearing on February 11, 2021, during which all parties were allowed to participate electronically. After carefully considering the requested relief of the parties, the Committee 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 § 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. Drafts unless otherwise classified as public records, are protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(22). However after considering the arguments of the parties and review of the requested records in camera, the Committee found that the records should not be classified as drafts.
3. Generally records the disclosure of which would impair governmental procurement proceedings, or give an unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity, are protected records if properly classified by the governmental entity and the bid, proposal, application, or other information submitted to or by a governmental entity is in response to a grant or other similar document. Utah Code § 63G-2-305(6).
4. The Committee finds that the records could be properly classified as protected records pursuant to Utah Code § 63G-2-305(6). The responsive records were a proposal to UDAF regarding an amendment to the BCCR Easement by a private landowner. Disclosure of the records could impair the proceedings by UDAF considering the proposal.
5. The Committee may upon consideration and weighing of the various interests and public policies to the classification of nondisclosure, order the disclosure of information properly classified as protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access. Utah Code § 63G-2-403(11)(b).
6. The Committee finds after having reviewed the requested records in camera and considering the arguments made by Ms. Woods and Julian Hatch regarding the public interest in the records, finds that although the records have been properly classified as protected records, the public interest favoring access is greater than to the interest favoring restriction of access. Accordingly, the Committee finds that the requested records should be released by UDAF.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Caralee Woods, is hereby GRANTED.
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.
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).
Entered this 22 day of February 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SAVE OUR CANYONS, Petitioner, v.
UTAH DEPARTMENT OF TRANSPORTATION, Respondent.
DECISION AND ORDER
Case No. 21-19
By this appeal, Petitioner, Save Our Canyons, seeks access to records allegedly held by Respondent, the Utah Department of Transportation. Save Our Canyons has requested records related to the State Route 210 project in Little Cottonwood Canyon located in Salt Lake County. The State Records Committee (“Committee”) held an electronic hearing on April 8, 2021 where the parties were allowed to present their arguments. During deliberation, the Committee voted unanimously to continue the hearing in order to: (1) Allow Respondent to provide a complete set of the requested records to the Committee with Respondent’s records classifications; and (2) Allow the Committee to review these records in camera.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Save Our Canyons, is hereby CONTINUED.
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.
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).
Entered this 19th day of April 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DARREN ROSENSTEIN, Petitioner, v.
UTAH DEPARTMENT OF TRANSPORTATION. Respondent.
DECISION AND ORDER
Case No. 21-02
The present appeal was heard by the State Records Committee (“Committee”) on January 14, 2021 with each of the parties participating electronically. The Committee unanimously voted to continue the hearing to the next available Committee hearing date in order to allow the Committee the necessary time to complete an in camera review of the records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Darren Rosenstein is hereby CONTINUED.
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.
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).
Entered this 25 day of January 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
J. ROBERT LATHAM, Petitioner, v.
WASHINGTON COUNTY, Respondent.
DECISION AND ORDER
Case No. 21-07
By this appeal, Petitioner, J. Robert Latham, seeks access to records allegedly held by Respondent, Washington County. After hearing arguments from the parties at a hearing held electronically on February 11, 2021, it was determined by the Committee that an in camera review of the disputed records was necessary. However, since there was not enough time during the hearing to review all the records in camera, the Committee voted unanimously to continue the appeal hearing until March 11, 2021.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, J. Robert Latham, is hereby CONTINUED.
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.
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).
Entered this 22 day of February 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
STATE RECORDS COMMITTEE. Respondent.
DECISION AND ORDER
Case No. 21-17
By this appeal, Petitioner, Steven Onysko, appeals the decision of Respondent, the Utah State Records Committee, denying his request for records allegedly held by Respondent.
FACTS
On October 21, 2020, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to the Utah State Records Committee (“Committee”), the Division of Archives and Records (“Archives”), and the Department of Administrative Services (“DAS”). Mr. Onysko requested all records “related to the State Records Committee action” combining two appeals Mr. Onysko had before the Committee in Onysko v. Attorney Gen.’s Office, State Records Committee Case No. 21-10 (Feb. 22, 2021). Mr. Onysko stated in his request:
The public records that I insist I must be allowed to inspect include, but are not limited to, emails and other correspondence in which the State Records Committee entity, its Chair and members. its Executive Secretary, its counsel from the Office of Attorney General, or any other doers discussed, advised, ordered, or similarly effected, combination of multiple hearings into one in general, and specifically in my circumstances.
In an email dated November 4, 2020, Kendra Yates, Chief Records Officer for Archives, provided records responsive to Mr. Onysko’s request, with portions of the records redacted pursuant to Utah Code § 63G-2-305(17) & (18). Regarding past appeals where two appeals were combined into one hearing over the requestor’s objection, Ms. Yates stated that there “are no records responsive to this request.”
In a letter dated November 11, 2020, Mr. Onysko filed an appeal with the Chief Administrative Officer for DAS arguing that he believed additional records existed responsive to his request. Mr. Onysko also argued that the records could not be properly classified as protected records pursuant to Utah Code § 63G-2-305(17) & (18) contending that Committee proceedings should not be considered administrative proceedings. On November 27, 2020, Ken Hansen, Chief Administrative Officer for GRAMA appeals for DAS, denied Mr. Onysko’s appeal. Mr. Hansen found that Mr. Onysko is not entitled to any additional records related to his request. Mr. Hansen also found that the records were protected records pursuant to Utah Code § 63G-2-305(17), (18), & (34) or are not considered records under GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(xi).
On December 13, 2020, Mr. Onysko appealed the denial to the Committee. On April 8, 2021, the Committee held a public hearing electronically. Mr. Onysko represented himself and Ms. Yates, Chief Records Officer for Archives, represented the Committee before the Committee. After considering the arguments from all parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Utah Legislature enacting GRAMA recognized the constitutional right of the public to access information concerning the conduct of the public’s business. Utah Code § 63G-2-102(1)(a). The Legislature also recognized a public policy interest in allowing a government to restrict access to certain records as specified in GRAMA, “for the public good.” Utah Code § 63G-2-102(2).
2. 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.
3. The Utah Legislature created a system whereby a records requester who is dissatisfied with a governmental entity’s denial of access to a record may appeal the decision. The first appeal is to the chief administrative officer of a governmental entity pursuant to Utah Code § 63G-2-401. If the chief administrative officer of a governmental entity affirms the denial of a records request, the requester may file a second appeal to: (1) The State Records Committee pursuant to Utah Code § 63G-2-403; or (2) A Utah district court through a petition for judicial review pursuant to Utah Code § 63G-2-404. Utah Code § 63G-2-402(1)(a). It is not necessary for this appeal to be filed first with the Committee in order for a petition for judicial review to be filed with a district court. Id.
4. The Legislature also provided an appeals process for political subdivisions in Utah Code § 63G-2-701 that can be established by policy or ordinance. The appeals process for persons aggrieved by classification, designation, or access decisions shall include a process for an appeal to the chief administrative officer similar to the process in Utah Code § 63G-2-401. Utah Code § 63G-2-701(5)(b). The political subdivision may establish an appeals board to decide an appeal of a decision of the chief administrative officer affirming an access denial. -701(5)(c). The appeals board shall be composed of three members, one of whom shall be an employee of the political subdivision, and two of whom shall be members of the public who are not employed by or officials of a governmental entity. -701(5)(c)(ii). If a political subdivision does not establish an appeals board, appeals of decisions to the chief administrative officer shall be to the Committee pursuant to Utah Code § 63G-2-403. -701(5)(c)(iv). Appeals from a governmental entity’s appeals board may be to the Committee or directly to district court similar to the process outlined in Utah Code § 63G-2-402(1)(a). -701(6)(a).
5. The Judiciary is not subject to Part 4, Appeals of GRAMA except for the requirement that rules governing appeals from denials of requests for access shall substantially comply with the time limits provided in Utah Code § 63G-2-204 and Part 4, Appeals. Similarly, the Legislature and its staff offices are not subject to Part 4, Appeals of GRAMA, and policies through the Legislative Management Committee “may establish an appellate board to hear appeals from denials of access.” Utah Code § 63G-2-703(2) & (3).
6. The Committee is created “within the Department of Administrative Services.” Utah Code § 63G-2-501(1). Archives shall provide staff and support services for the Committee. Utah Code § 63G-2-502(5). The Attorney General’s Office shall provide counsel to the Committee. Utah Code § 63G-2-502(7).
7. The membership of the Committee is established by the Legislature in Utah Code § 63G-2-501(1). Membership is comprised of (1) An individual in the private sector whose profession requires the individual to create or manage records that, if created by a governmental entity, would be private or controlled; (2) An individual with experience with electronic records and databases, as recommended by a statewide technology advocacy organization that represents the public, private, and nonprofit sectors; (3) The director of Archives or the director’s designee; (4) Two citizen members; (5) One person representing political subdivisions, as recommended by the Utah League of Cities and Towns; and (6) One individual representing the news media. Utah Code § 63G-2-501(1)(a-f).
8. Other than the director of Archives, the other members of the Committee are appointed by the governor with the advice and consent of the Senate. Utah Code § 63G-2-501(2). The statutory composition of the Committee shows the Legislature’s intent to have the Committee serve as a neutral administrative appellate body with a membership comprised of individuals representing both governmental and public interests.
9. A complete review of the appeals process outlined in GRAMA shows that for executive agencies and governmental entities other than the Judiciary and the Legislature, all appeals are initially heard by the governmental entity’s chief administrative officer. Appeals may be heard by a three person appeals board pursuant to Utah Code § 63G-2-701, but eventually all appeals are either: (1) Appealed to the Committee and then to district court, or (2) Appealed directly to district court. See, Utah Code §§ 63G-2-402(1)(a) & -701(6)(a). Accordingly, under GRAMA if appeals from governmental entities other than the Judiciary and the Legislature are continued until their statutory conclusion, all appeals eventually arrive in district court where they are reviewed de novo by the court. Utah Code § 63G-2-404(6)(a)(i).
10. The present case is a unique situation where the initial records request was made to the Committee for records of the Committee, itself, which presented a discussion of neutrality or the perception of neutrality by the Committee.
11. The difficulty in this case is that for any other executive agency or governmental entity excluding the Judiciary and the Legislature, a records requester has the opportunity to appeal the decision to the Committee, who then reviews the appeal as a neutral administrative body. However, with this appeal, it is impossible for the Committee to act as a neutral administrative body given the fact that: (1) The Committee is reviewing its own decision initially denying Mr. Onysko’s records request, and (2) The disputed records are related to a current justiciable controversy in district court where the Committee and its chair are named defendants . Accordingly, the Committee finds that the best course for the present appeal is to deny the appeal in order to allow Mr. Onysko the opportunity to have his appeal heard by a neutral district court judge, who would be in a better position to determine whether Mr. Onysko is entitled to the requested records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, is hereby DENIED.
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.
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).
Entered this 19 day of April 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SAM STECKLOW on behalf of the SALT LAKE TRIBUNE, Petitioner, v.
CLINTON CITY, Respondent.
DECISION AND ORDER
Case No. 21-25
By this appeal, Petitioner, Sam Stecklow, journalist with the Salt Lake Tribune, seeks access to records held by Respondent, Clinton City.
FACTS
On January 26, 2021, Mr. Stecklow made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Stecklow requested from Respondent records regarding two current or former employees of the Clinton Police Department (“CPD”). On January 27, 2021, CPD’s records clerk denied Mr. Stecklow’s records request in full.
In a letter dated January 28, 2021, Mr. Stecklow filed an appeal with Respondent’s City Manager/Recorder, stating that the records should be released “given the extremely high, legitimate public interest in the use of deadly force by law enforcement.” On February 9, 2021, Dennis W. Cluff, Clinton City Manager, responded stating that many of the requested records did not exist or were held by another governmental entity. Some records were provided by Respondent, while others were not provided because they were classified as private records.
In a letter dated February 17, 2021, Mr. Stecklow appealed Respondent's GRAMA request denial to the State Records Committee ("Committee"). On April 29, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the parties' arguments and the evidence presented, the Committee 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 § 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. Records concerning a current or former employee of a governmental entity including performance evaluations and personal status information, are generally private if properly classified by a governmental entity but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o). Utah Code § 63G-2-302(2)(a). Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental employee are normally public if: (1) The disciplinary action has been completed and all time periods for administrative appeal have expired; and (2) The charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o).
3. Records created or maintained for civil, criminal, or administrative enforcement purposes are protected records if properly classified by a governmental entity and reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(d).
4. Records other than personnel evaluations that contain a personal recommendation concerning an individual, are protected records if properly classified by a governmental entity if disclosure would constitute a clearly unwarranted invasion of personal privacy or disclosure is not in the public interest. Utah Code § 63G-2-305(25).
5. The requested records involve records related to four shooting incidents involving the CPD since 2010. Each of these shootings resulted in an incident Internal Investigation and Review Board review which resulted in a finding that no action should be taken against the CPD officers. The Clinton City Review Board (“Review Board”) in a use of force case consists of five members with four members from the CPD and an officer from an outside agency. Respondent’s internal investigation is used by the Review Board to allow board members to make their determination as to whether CPD policy was followed. The Internal Investigation report and the Review Board findings were classified by Respondent to be private records as performance evaluations pursuant to Utah Code § 63G-2-302(2)(a).
6. In Lawrence v. Utah Dept. of Pub. Safety, Utah 3rd Dist. Case No. 120907748 (Aug. 21, 2013), the district court found that:
[T]he public’s right to know the response of public officials charged with the responsibility of investigating alleged constitutional violations substantially exceeds any individual interests of those public officials or the interest of a Trooper charged with the responsibility protecting the safety and rights of the State’s citizens.
7. After having reviewed the records in camera and considering the evidence and arguments presented by the parties, the Committee finds that Internal Investigation report and the Review Board findings for the four shooting incidents involving the CPD since 2010 should be released. The Committee finds that Respondent properly classified the requested records as private records pursuant to Utah Code § 63G-2-302(2)(a). Upon consideration and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, the Committee finds that the public interest favoring access is greater than the interest favoring restriction of access. See, Utah Code § 63G-2-403(11)(b). The Committee follows the district court’s decision in Lawrence holding that the public’s right to know “substantially exceeds” individual interests of public officials or police officers because:
[T]he records reveal whether public officials properly discharged their public responsibility to investigate and address allegations that law enforcement personnel violated a citizen’s constitutional rights. [Lawrence, at pg. 3.]
The Committee also finds that prior to release of the records, Respondent may redact any names of witnesses not known outside of government and the votes of individual members of the Review Board pursuant to Utah Code §§ 63G-2-305(10)(d) & -305(25).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sam Stecklow, 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.
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).
Entered this 10 day of May 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DARREN ROSENSTEIN, Petitioner, v.
UTAH DEPARTMENT OF TRANSPORTATION, Respondent.
DECISION AND ORDER
Case No. 21-29
On May 13, 2021, the State Records Committee (“Committee”) held a hearing allowing each of the parties to participate electronically. The hearing was the fourth time the parties had appeared before the Committee, with the last appearance occurring on March 11, 2021 when both parties requested a continuance. See, Rosenstein v. Utah Dept. of Transp., State Records Committee Case No. 21-12 (March 22, 2021). At the hearing, counsel for Mr. Rosenstein requested that the hearing again be continued. The Committee voted unanimously to continue the present case until the Committee’s June 10, 2021 hearing.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Darren Rosenstein is hereby CONTINUED.
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.
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).
Entered this 24 day of May 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARK TRACY, Petitioner, v.
EMIGRATION IMPROVEMENT DISTRICT, and SIMPLIFI COMPANY, Respondents.
DECISION AND ORDER
Case No. 21-09
By this appeal, Petitioner, Mark Tracy, seeks access to records allegedly held by Respondents, Emigration Improvement District and Simplifi Company.
FACTS
In September 2020, Mr. Tracy, President of the Emigration Canyon Home Owners’ Association, made three requests for records pursuant to the Government Records Access and Management Act (“GRAMA”). The request to Emigration Improvement District (“EID”) was for e-mail correspondence regarding lead contamination of water system 18143 and the use of public funds for private legal costs. Mr. Tracy made a similar request to Simplifi Company (“Simplifi”), a contractor for EID.
After Mr. Tracy’s appeals were denied, he filed three appeals (2020-115, 2020-121, 2020-125) with the State Records Committee (“Committee”). Because of the similar nature of the appeals, the Committee combined the appeals for an electronic hearing held on February 11, 2021. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A person making a request for a record shall submit to the governmental entity that retains the record a written request for the record describing the record requested with reasonable specificity. Utah Code § 63G-2-204(1)(a). GRAMA defines governmental entities in Utah Code § 63G-2-103(11).
2. Regarding appeals 2020-115 and 2020-121, a review of the file shows that these records requests were made to Simplifi, a private company. Although work was done by Simplifi on behalf of EID, Simplifi is not a governmental entity. If a records requester desires records of a governmental entity that are held by a private entity, the request for records should be made to the governmental entity pursuant to Utah Code § 63G-2-204(1).
3. GRAMA’s definition of “record” includes records: (1) Prepared, owned, received, or retained by a governmental entity or political subdivision; and (2) Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a). It should be noted that a record does not need to be retained by a governmental entity in order for the record to be subject to GRAMA. GRAMA could apply to a record that a governmental entity prepared, owned, or received even though the record is retained by another party.
4. In the present case, evidence was presented that Simplifi retains records that are owned by EID that are subject to the records request made by Mr. Tracy. Accordingly, the Committee finds that the records requests made to Simplifi were not properly requested to the governmental entity pursuant to GRAMA, and appeals 2020-115 and 2020-121 are denied.
5. Accordingly, the Committee finds that EID may be the holder of records responsive to Mr. Tracy’s request in Appeal 2020-125 submitted to EID for e-mail correspondence regarding lead contamination of water system 18143 and records regarding the use of public funds for private legal costs. EID is ordered to do a more thorough search for records and provide any public records responsive to Mr. Tracy’s records request including records retained by Simplifi on behalf of EID.
ORDER
THEREFORE, IT IS ORDERED THAT the appeals of Petitioner, Mark Tracy, are 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.
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).
Entered this 22 day of February 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SAVE OUR CANYONS, Petitioner, v.
UTAH DEPARTMENT OF TRANSPORTATION, Respondent.
DECISION AND ORDER
Case No. 21-30
By this appeal, Petitioner, Save Our Canyons, seeks access to records allegedly held by Respondent, the Utah Department of Transportation. Petitioner has requested records related to the State Route 210 project in Little Cottonwood Canyon located in Salt Lake County. The parties previously appeared before the State Records Committee (“Committee”) on April 8, 2021 and the hearing was continued. See, Save Our Canyons v. Utah Dept. of Trans., State Records Committee Case No. 21-19 (Apr. 19, 2021).
The Committee held an electronic hearing on May 13, 2021 where the parties reported on the status of the release and receipt of the requested records. During deliberation, the Committee voted unanimously to again continue the hearing in order for: (1) Respondent to clarify the use of the STIP report and the respondent’s reasoning for considering the STIP report a draft; and (2) Respondent to review all of the draft records and identify which ones have been distributed in final form outside of government. Both parties were encouraged to work with the Government Records Ombudsman, Rosemary Cundiff, to potentially help accelerate the providing and receipt of the requested records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Save Our Canyons, is hereby CONTINUED.
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.
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).
Entered this 24 day of May 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SAM STECKLOW, Petitioner, v.
WEST JORDAN POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 21-28
By this appeal, Petitioner, Sam Stecklow, a journalist with the Salt Lake Tribune, seeks access to records held by Respondent, the West Jordan Police Department.
FACTS
On January 7, 2021, Mr. Stecklow filed a GRAMA request with West Jordan Police Department “for records related to eleven officer involved shootings.” Respondent released some records but did not release any “internal affairs or use of force report[s] and the final disposition from any such internal review”. In a letter to the Utah State Records Committee (“Committee”) dated April 2, 2021, Mr. Stecklow stated that Respondent “later asserted that it did not have internal affairs investigations into its shootings, save for one case, in which the city said it had compelled Garrity statements.” Respondent also denied releasing records “regarding ‘any discipline imposed on any officers’ based on their involvement in the officer involved shootings”.
On February 4, 2021, Mr. Stecklow filed an appeal with West Jordan’s Chief Administrative Officer, Korban Lee. In discussions between Mr. Lee and Mr. Stecklow, the appeal was amended to request only the Garrity statements of two police officers regarding an officer-involved shooting which took place on May 28, 2018. On March 4, 2021, Mr. Lee denied the appeal.
On April 2, 2021, Mr. Stecklow appealed Mr. Lee’s denial to the Committee. On April 29, 2021, the Committee held an electronic hearing during which the parties presented their arguments. After carefully considering the arguments from all parties, the Committee 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 § 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 “Garrity” warning assures officers that their statements given in a disciplinary interview will not be used against them in a subsequent criminal prosecution. Macfarlane v. Career Serv. Review Office, 2019 UT App 133, ¶14, 450 P.3d 87, 92, following Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616 (1967). An officer who refuses to respond or fails to respond truthfully to questions after receiving a Garrity warning is subject to suspension or revocation of his or her POST certification. Macfarlane, ¶14, 450 P.3d at 92, following Utah Code § 53-6-211(1)(e) (2015). Under POST guidelines, if an officer is untruthful in an interview after receiving a Garrity warning, the officer’s certification may be revoked. Id.
3. Records concerning a current or former employee of a governmental entity including performance evaluations and personal status information, are generally private if properly classified by a governmental entity but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o). Utah Code § 63G-2-302(2)(a). Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental employee are normally public if: (1) The disciplinary action has been completed and all time periods for administrative appeal have expired; and (2) The charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o).
4. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
5. Records created or maintained for civil, criminal, administrative, or discipline purposes, are protected records if properly classified by the governmental entity and if release of the records reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings. Utah Code § 63G-2-305(10)(b).
6. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).
7. In Lawrence v. Utah Dept. of Pub. Safety, Utah 3rd Dist. Case No. 120907748 (Aug. 21, 2013), the district court found that:
[T]he public’s right to know the response of public officials charged with the responsibility of investigating alleged constitutional violations substantially exceeds any individual interests of those public officials or the interest of a Trooper charged with the responsibility protecting the safety and rights of the State’s citizens. [Lawrence, at pg. 3.] The court further stated that “the records reveal whether public officials properly discharged their public responsibility to investigate and address allegations that law enforcement personnel violated a citizen’s constitutional rights.” Id.
8. In the present case, counsel for Respondent argued that the Garrity statements were properly classified as private records pursuant to Utah Code §§ 63G-2-302(2)(a) & -302(2)(d), and as protected records pursuant to Utah Code §§ 63G-2-305(10)(b) & -308(18).
9. After having reviewed the records in camera and considering the evidence and arguments presented by the parties, the Committee finds that the requested records should be classified as public records. The Garrity statements by the officers were made through the conduct of official business, and therefore should not be considered private personnel records pursuant to Utah Code § 63G-2-302(2)(a) or as attorney work product pursuant to Utah Code § 63G-2-302(18) (records created in the ordinary course of business used in litigation does not render them exempt under GRAMA. See, S. Utah Wilderness Alliance v. Automated Geographic Ctr., 2008 UT 8, ¶26, 200 P.3d 643, 652-653). Considering the penalties for officers refusing to respond truthfully to questions after receiving a Garrity warning, the Committee is unconvinced that disclosure of these records reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings pursuant to Utah Code § 63G-2-305(10)(b).
10. Although an investigation could by its nature be expected to invade privacy, “GRAMA’s private and protected classification of records that ‘constitute[] a clearly unwarranted invasion of personal privacy’ does not sanction denying access to a record merely because it invades personal privacy.” Deseret News Pub. Co. v. Salt Lake Cty.¸182 P.3d 372, 380 (2008 Utah) ¶30. To qualify for nonpublic classification, a record must not only invade personal privacy, it must do so in a “clearly unwarranted” manner. Id. Simply because officers are required to participate in Garrity interviews, their privacy interests do not rise to the level of a “clearly unwarranted invasion” of personal privacy because they are public officials with public responsibilities subject to public oversight.
11. Even if weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, based upon the district court decision in Lawrence, the records would be made public because the public’s right to know “substantially exceeds” individual interests of public officials or police officers. Accordingly, the Committee finds that Respondent’s classification of the officers’ Garrity statements as non-public to be incorrect and find that they should be classified as public records pursuant to SUWA, Deseret News, Lawrence, and Utah Code § 63G-2-201(2).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sam Stecklow, is hereby GRANTED.
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.
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).
Entered this 10th day of May 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SAM STECKLOW, Petitioner, v.
SALT LAKE CITY POLICE DEPARTMENT CIVILIAN REVIEW BOARD, Respondent.
DECISION AND ORDER
Case No. 21-24
By this appeal, Petitioner, Sam Stecklow, seeks access to records held by Respondent, the Salt Lake City Police Department Civilian Review Board.
FACTS
In a letter dated October 8, 2020, Mr. Stecklow made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Stecklow requested decisions and other final disposition documentation for cases reviewed by Respondent but not published on Salt Lake City’s website. The request was made for records between January 1, 2016 and the date of the records request. Salt Lake City provided redacted final reports to Mr. Stecklow on December 11, 2020.
In a letter dated December 22, 2020, Mr. Stecklow filed an appeal with the Salt Lake City Recorder’s Office. Mr. Stecklow argued that he should be provided the withheld records subject to proper redactions. Mr. Stecklow also argued that he should be given “properly-redacted copies of the records already provided.” In a letter dated January 6, 2021, Rachel Otto, Chief of Staff for the Office of the Salt Lake City Mayor, denied Mr. Stecklow’s appeal. Ms. Otto found that GRAMA does not require the release of records that did not result in sustained findings. Ms. Otto also stated that the redactions were appropriate pursuant to Utah Code § 63G-2-302(2)(d).
In a letter dated January 7, 2021, Mr. Stecklow appealed Respondent's GRAMA request denial to the State Records Committee ("Committee"). On April 29, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the parties' arguments and the evidence presented, the Committee 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 § 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. Records concerning a current or former employee of a governmental entity including performance evaluations and personal status information, are generally private if properly classified by a governmental entity but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o). Utah Code § 63G-2-302(2)(a). Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental employee are normally public if: (1) The disciplinary action has been completed and all time periods for administrative appeal have expired; and (2) The charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o).
3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy, are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
4. Additionally, the executive secretary of the Committee may decline to schedule a hearing if the record series that is the subject of the appeal has been found by the Committee in a previous hearing involving the same governmental entity to be appropriately classified as private, controlled, or protected. Utah Code § 63G-2-403(4)(b)(i).
5. The Committee previously reviewed Respondent’s classification of its records in Salt Lake Tribune v. Salt Lake Police Dept. Civilian Review Bd., State Records Committee Case No. 06-05 (Aug. 17, 2006). In that decision, the Committee upheld Respondent’s classification of “private” for records where the allegations were not sustained. The Committee used the weighing provision and found that “the public interest favoring access outweighs the interest favoring restriction of access.” Id. The Committee ordered release of the records involving un-sustained actions but required the records to be redacted to protect witness and complainant identifying information. Id. The Committee found that identifying information regarding the subject officers “shall not be redacted.” Id.
6. Although the present case involves the same records series with the same governmental entity as Case No. 06-05, the Committee scheduled this appeal for a hearing. After having reviewed the records in camera and considering the arguments of the parties, the Committee generally re-affirms the previous decision in Case No. 06-05. The Committee finds that Respondent properly classified the requested records as private records pursuant to Utah Code § 63G-2-302(2)(a). Upon consideration and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, the Committee again finds that the public interest favoring access is greater than the interest favoring restriction of access. See, Utah Code § 63G-2-403(11)(b). However, in order to preserve the personal privacy of all individuals named in the records, Respondent may redact the names of individuals from the records prior to releasing the records including the names of police officers. The Committee does not believe in this case that the public interest is greater than the police officer’s interest in personal privacy when the charges are un-sustained.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sam Stecklow, 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.
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).
Entered this 10 day of May 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
FLORENE HOLDAWAY, Petitioner, v.
UTAH DEPARTMENT OF HUMAN SERVICES, Respondent.
DECISION AND ORDER
Case No. 21-41
By this appeal, Petitioner, Florene Holdaway, requests access to records allegedly held by Respondent, the Utah Department of Human Services.
FACTS
On a form dated November 15, 2020, Ms. Holdaway filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) with the Utah Division of Child and Family Services (“DCFS”). Ms. Holdaway requested a specified report filed with DCFS in July 2020. In a letter dated November 25, 2020, the GRAMA Specialist for DCFS denied the request. Ms. Holdaway filed an appeal with Respondent. In a letter dated December 30, 2020, Sonia Sweeney, Chief Administrative Officer for Respondent, upheld the denial for the request for records, finding that release of the records could impede a criminal investigation.
An appeal filed by Ms. Holdaway was received by the State Records Committee (“Committee”) on January 15, 2021. On July 8, 2021, the Committee held a hearing where the parties were allowed to participate in person and electronically. After carefully considering the parties’ arguments and the evidence presented, the Committee 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 § 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. A record to which access is restricted pursuant to another state statute is also considered non- public pursuant to GRAMA. Utah Code § 63G-2-201(3)(b).
2. Records created or maintained for civil, criminal, or administrative enforcement purposes, are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to interfere with investigations undertaken for enforcement or discipline purposes. Utah Code § 63G-2-305(10)(a). Additionally, when DCFS makes a report or other information available to specified individuals, DCFS “shall remove from the report” names, addresses, and telephone numbers or other specific information that could identify the referent in the report, impede a criminal investigation, or endanger an individual’s safety. Utah Code § 62A-4a-412(3)(b).
3. In the present case, counsel for Respondent stated that between the date of Ms. Holdaway’s appeal with the Committee and the date of the hearing, all responsive records had been given to Ms. Holdaway with redactions made pursuant to Utah Code § 62A-4a-412(3)(b). The records were released to Ms. Holdaway because the initial investigation had been completed and the release of the records would no longer impede DCFS’s investigation.
4. After having considered the evidence and arguments of the parties, the Committee finds that
Ms. Holdaway has received all public records responsive to her records request. Redactions were proper pursuant to Utah Code § 62A-4a-412(3)(b).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Florene Holdaway, is hereby DENIED.
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).
Entered this 19 day of July 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JUSTIN SUTHERLAND, Petitioner, v.
UTAH DEPARTMENT of NATURAL RESOURCES, Respondent.
DECISION AND ORDER
Case No. 21-50
On October 28, 2021, the State Records Committee (“Committee”) held a hearing involving Petitioner, Justin Sutherland, and Respondent, the Utah Department of Natural Resources. Mr. Sutherland filed an appeal with the Committee concerning a denial of a records request made on February 24, 2021 pursuant to the Government Records Access and Management Act. At the hearing, both parties requested a continuance from the Committee. After considering the request, the Committee voted unanimously to continue the present case until the November 18, 2021 Committee hearing.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Justin Sutherland, is hereby CONTINUED until November 18, 2021.
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).
Entered this 8 day of November 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NICKOLAS PARKER, Petitioner, v.
PRICE CITY POLICE DEPT., Respondent.
DECISION AND ORDER
Case No. 21-61
On December 17, 2021, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. The Committee voted to review the disputed records in camera. However, in order to allow the Committee members to have sufficient time to properly review the records in camera including an audio recording that had not yet been provided to the Committee by Respondent, the Committee voted unanimously to continue the hearing until the next available hearing date.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nickolas Parker, is hereby CONTINUED.
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).
Entered this 29th day of December 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DONALD ANDERSON, Petitioner, v.
DEPARTMENT OF WORKFORCE SERVICES, Respondent.
DECISION AND ORDER
Case No. 21-31
By this appeal, Petitioner, Donald Anderson, appeals the decision of Respondent, the Department of Workforce Services (“DWS”), denying his request for records held by DWS.
FACTS
On or around November 30, 2020, Mr. Anderson submitted a request pursuant to the Government Records Access and Management Act (“GRAMA”) to DWS requesting records submitted to DWS on November 20, 2020 by the Center for Family Evaluation and Treatment. Among the requested records, Mr. Anderson specifically requested Form 20M and Form 1GA. Mr. Anderson was himself the subject for all of the records sought in his request.
On December 2, 2020, DWS denied the release of Form 20M and the accompanying health evaluation. That same day, DWS released all other requested records, including Form 1GA. In explaining its denial of Form 20M, DWS stated that it had classified Form 20M as a controlled record and that under statute, it could not release that controlled record to Mr. Anderson.
On December 9, 2020, Mr. Anderson appealed the denial to the DWS’s Executive Director. On December 12, 2020, the Deputy Director for DWS issued a written response denying Mr. Anderson’s appeal. On January 28, 2021, Mr. Anderson filed an appeal with the State Records Committee (“Committee”). At an electronic hearing held on May 13, 2021, the parties presented their arguments to the Committee. After considering the arguments from all parties, the Committee 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 § 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. Records that contain medical, psychiatric, or psychological data about an individual, are controlled records if properly classified by a governmental entity and the governmental entity reasonably believes that: (1) 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 (2) Releasing the information would constitute a violation of normal professional practice and medical ethics. Utah Code § 63G-2-304.
3. GRAMA states that a controlled record may be disclosed under certain circumstances including to individuals related to the medical field after a release from the subject of the record, pursuant to a court order, or pursuant to a legislative subpoena. Utah Code § 63G-2-202(2)(a). GRAMA also states that a person who receives a controlled record “may not disclose controlled information from that record to any person, including the subject of the record.” Utah Code § 63G-2-202(2)(b).
4. In the present case, counsel for DWS argued that the Form 20M was properly classified as a controlled record and cannot be released to Mr. Anderson pursuant to Utah Code § 63G-2-202(2). Counsel also stated that when DWS receives confirmation from the mental health provider that Form 20M was safe to be released to Mr. Anderson, DWS would release it to Mr. Anderson.
5. After having reviewed all evidence including the testimony and arguments presented at the hearing, the Committee finds that DWS properly classified Form 20M as a controlled record. The Committee further finds that as a controlled record, it is not subject to disclosure to Mr. Anderson even though he is the subject of the record.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Donald Anderson, is hereby DENIED.
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).
Entered this 24 day of May 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
SANPETE COUNTY, Respondent.
DECISION AND ORDER
Case No. 21-46
On September 9, 2021, the State Records Committee (“Committee”) held a hearing regarding four combined appeals (2021-55, 2021-76, 2021-81, & 2021-83) involving Petitioner, Patrick Sullivan, and Respondent, Sanpete County. Mr. Sullivan is appealing decisions by Respondent regarding requests for records and requests for fee waivers pursuant to the Government Records Access and Management Act. At the hearing, Mr. Sullivan stated that he had not received a response from Respondent regarding his appeals as is required by Utah Code § 63G-2-403(5) and therefore, he was not prepared to go forward with the hearing. The Committee determined that it would be in the best interests of the parties to continue the hearing in order to allow Respondent to submit a written statement of facts, reasons, and legal authority in support of Respondent’s position for consideration of the Committee. See, Utah Code § 63G-2-403(5). The Committee voted unanimously to continue the hearing until a later date.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is hereby CONTINUED.
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).
Entered this 20 day of September 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY TANNER on behalf of the SALT LAKE TRIBUNE, Petitioner, v.
THE UNIVERSITY OF UTAH & THE UTAH SYSTEM OF HIGHER EDUCATION, Respondents.
DECISION AND ORDER
Case No. 22-05
By this appeal Petitioner, Courtney Tanner, a journalist with the Salt Lake Tribune, is requesting records held by Respondents, the University of Utah and the Utah System of Higher Education.
FACTS
On September 9, 2021, Ms. Tanner submitted a request for records made pursuant to the Government Records Access and Management Act (“GRAMA”) from the Utah System of Higher Education (“USHE”). Ms. Tanner requested “all comments submitted via the email created and operated by [USHE] the public to give thoughts on the three finalists during the most recent U. presidential search.” Trisha Dugovic, Respondent’s Director of Communications, stated in an e-mail dated September 16, 2021 that the Utah Board of Higher Education (“Board”) had denied her records request because pursuant to Utah Code §§ 63G-2-305(66), -305(28) and 53B-2-107(7), the records are protected non-public records. An appeal was filed and in a letter dated October 13, 2021, Dave R. Woolstenhulme, Commissioner of Higher Education, upheld the decision of the Board.
Also on September 9, 2021, Ms. Tanner submitted a request to the University of Utah (“University”) for “all comments submitted through the form page that was on the University of Utah’s website for presidential feedback for each of the three finalists I the most recent search.” On September 16, 2021, Brian Christiansen, Director, Administration University of Utah, denied Ms. Tanner’s request similarly finding that pursuant to Utah Code §§ 63G-2-305(66), -305(28) and 53B-2-107(7), the records are protected non-public records. After an appeal was filed, Todd Samuelson, Chief Administrative Officer and Appeals Officer for the University, upheld the decision by Mr. Christiansen.
Two appeals were filed by Petitioner with the State Records Committee (“Committee”). Because of the similarity of the records requests and the legal issues regarding the requests, both appeals were reviewed together by the Committee during a hearing held on January 20, 2022. After carefully considering the evidence and the arguments presented by the parties, the Committee 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 § 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. Record pertaining to the search process for a president of an institution of higher education described in Utah Code § 58B-2-102, except for application materials for a publicly announced finalist, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(66). The University is defined as an institution of higher education pursuant to Utah Code § 53B-1-102(1)(a) and Utah Code § 53B-2-102 outlines the process for appointment of an institution of higher education’s president.
3. Records of an institution within the state system of higher education as defined in Utah Code § 53B-1-102 regarding appointments which could be properly discussed in a meeting closed in accordance with the Open Public Meetings Act, are protected records if properly classified by a governmental entity provided that records of the final decisions about appointments may not be classified as protected. Utah Code § 63G-2-305(28).
4. A record or information gathered or generated during the search process for an appointment of institution of higher education president, including a candidate’s application and the search committee’s deliberations, is confidential and is a protected record under Utah Code § 63G-2-305. Utah Code § 53B-2-102(7)(a). Application materials for a publicly named finalist are not protected records under Utah Code § 63G-2-305. Utah Code § 53B-2-102(7)(b).
5. After having reviewed all of the evidence and the arguments of the parties, the Committee finds that the decisions by Respondents should be affirmed. The Utah Legislature has declared its intention to have certain records pertaining to the search process for a president of an institution of higher education to be non-public protected records. Accordingly, the Committee finds that Respondents properly classified the requested records as protected records pursuant to Utah Code §§ 63G-2-305(66), -305(28), & 53B-2-102(7).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Courtney Tanner on behalf of the Salt Lake Tribune, is DENIED.
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).
Entered this 31st day of January 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS, Petitioner, v.
HEBER CITY POLICE, Respondent.
DECISION AND ORDER
Case No. 22-19
By this appeal, Petitioner, Adam Herbets, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, Heber City Police. Mr. Herbets requested records of communications with a specified individual. On May 19, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present arguments and evidence. At the hearing, legal counsel for Respondent, stated that records responsive to Mr. Herbets’ records request would be provided to Mr. Herbets. During the hearing the parties agreed that it would be in their best interests to continue the hearing until a later date in order to allow Mr. Herbets to review the records provided to him by Respondent and then determine whether the records fully satisfy his records request. Accordingly, the Committee unanimously voted to continue the hearing until June 16, 2022.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, is hereby CONTINUED until June 16, 2022.
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).
Entered this 31 day of May 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROBERT SLOMAN, Petitioner, v.
UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 21-49
By this appeal, Petitioner, Robert Sloman, requests access to records allegedly held by Respondent, the University of Utah.
FACTS
The present appeal is a continuance of a hearing held on June 10, 2021 by the State Records Committee (“Committee”). See, Sloman v. Univ. of Utah, State Records Committee Case No. 21-34 (June 21, 2021). During the previous hearing, the Committee heard evidence and arguments from the parties. The Committee voted unanimously to continue the matter to allow the ongoing process of records production to continue. At a hearing held on September 9, 2021, the Committee allowed both parties to present a status report concerning Respondent’s record production process. The Committee thereafter issued the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Pursuant to GRAMA, a person has the right to inspect a public record free of charge and take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). A person making a request for a record shall submit to the governmental entity that retains a record a written request containing a description of the record identifying the record with reasonable specificity. Utah Code § 63G-2-204(1)(a)(ii).
2. After reviewing all written responses and hearing the arguments of the parties, the Committee is convinced that Respondent has made reasonable efforts to produce records responsive to Mr. Sloman’s records requests. The status update by Respondent indicates that all responsive records have been produced to Mr. Sloman, and that no other responsive records could be found.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Robert Sloman, is hereby DENIED.
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).
Entered this 20 day of September 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS, Petitioner, v.
UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 21-52
By this appeal, Petitioner, Adam Herbets, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, the University of Utah.
FACTS
On June 15, 2021, Mr. Herbets made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Herbets requested e-mails regarding named individuals and involving specified subjects including “Fox 13” from May 15, 2021 to the present. Brian Christensen, Director of Administration for Respondent, denied the request on July 12, 2021 finding that the request was not reasonably specific. An appeal was filed and in a letter dated August 10, 2021, Todd Samuelson, Chief Administrative Officer and Appeals Officer for Respondent, affirmed Mr. Christensen’s decision.
Mr. Herbets filed an appeal with the State Records Committee (“Committee”). On October 28, 2021, 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.
STATEMENT OF REASONS FOR DECISION
1. A person making a request for a record shall submit to the governmental entity that retains the record a written request containing a description of the record requested that identifies the record with reasonable specificity. Utah Code § 63G-2-204(1)(a)(ii).
2. In the present case, the requests for records were denied by Respondent based upon a failure of Mr. Herbets to reasonably specify the records being requested. The main issue presented to the Committee was whether each of Mr. Herbets’s records requests were considered reasonably specific.
3. The Committee finds that the request for all e-mails sent to and from “C.M.” between May 16, 2021 to the present day was reasonably specific. This request involves a single e-mail account and is within a short range of dates. After retrieving the records, Respondent shall have the opportunity to review these e-mail records to determine which records are considered public or non-public records under GRAMA in order to segregate them pursuant to Utah Code § 63G-2-308.
4. Concerning the other records requests, the Committee finds that these requests were not reasonably specific. When considering the number of e-mails and e-mail accounts Respondent would have to review, the search would be overly broad and would be considered an unreasonable interference with Respondent’s duties and responsibilities. See, Utah Code § 63G-2-201(9)(b). Accordingly, the Committee encourages the parties to work with the Utah Government Records Ombudsman to help narrow the search parameters for the requested records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, 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 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).
Entered this 8 day of November 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARK PUTNAM, Petitioner, v.
WASHINGTON COUNTY ATTORNEY'S OFFICE, Respondent.
DECISION AND ORDER
Case No. 21-62
By this appeal, Petitioner, Mark Putnam, is requesting access to records allegedly held by Respondent, the Washington County Attorney’s Office.
FACTS
On June 14, 2021, Trevor Casperson made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Casperson stated in the request that he was the attorney and authorized legal representative for Mr. Putnam requesting the records on behalf of Mr. Putnam. The request was for e-mail, telephone recordings, texts, and video communications between specified individuals and the attorney prosecuting Mr. Putnam’s criminal case. In a letter dated June 17, 2021, Deputy County Attorney Steven M. Scott stated that there was an e-mail chain that was responsive to the records request, but it had been classified as a protected record pursuant to Utah Code §§ 63G-2-305(18) & -305(23). Mr. Casperson filed an appeal of the denial and in a letter dated August 2, 2021, Washington County Attorney Eric Clarke affirmed the denial of the records request.
Mr. Casperson filed an appeal with the State Records Committee (“Committee”). On December 17, 2021, the Committee held a public hearing during which the parties were allowed to participate. Counsel for Respondent appeared at the hearing but neither Mr. Putnam nor a representative for Mr. Putnam appeared at the hearing. However, after reviewing all of the written materials submitted by both parties and the oral arguments of Respondent presented at the hearing, the Committee 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 § 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. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18). Additionally, records concerning a governmental entity’s strategy about imminent or pending litigation are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(23)(b).
3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
4. Records containing medical, psychiatric, or psychological data about an individual is a controlled record if properly classified by a governmental entity if the governmental entity reasonably believes that: (1) 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 (2) Releasing the information would constitute a violation of normal professional practice and medical ethics. Utah Code § 63G-2-304.
5. Respondent argued that the records were properly classified because there is a substantial public policy interest to restrict access. “[I]t is for the public good to afford prosecutors the protection to communicate freely regarding current and pending litigation.” Petitioner argued that “text messages and or emails with an individual who does not work for the state, is not an attorney or an employee and is not some kind of litigation advisor” should be considered public records.
6. After carefully considering all of the evidence presented, the Committee finds that the subject records are non-public records not subject to disclosure pursuant to Utah Code §§ 63G-2-302(2)(d), -304, -305(18), and -305(23). The present case closely mirrors a previous Committee case where the Utah Court of Appeals held that release of a prosecutor office’s communications revealing a prosecutor’s mental impressions and core work product “would be particularly chilling where the party seeking disclosure…intends to us the records against the very attorney…involved in the communications.” Utah Legal Clinic v. Salt Lake City Corp., 2019 UT 58, ¶20, 440 P.3d 948, 953 (emphasis in original text). Accordingly, the Committee upholds Respondent’s decision to deny Petitioner’s records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Putnam, is hereby DENIED.
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).
Entered this 29th day of December 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JENNIFER ORTEN, Petitioner, v.
SALT LAKE COUNTY, Respondent.
DECISION AND ORDER
Case No. 22-12
This appeal involves six records requests from Petitioner, Jennifer Orten. On February 17, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. The Committee was persuaded that not all issues regarding Ms. Orten’s records requests were ripe for review by the Committee, and voted unanimously to continue the hearing in order to allow the parties time to complete all procedural steps and brief all issues for proper consideration by the Committee. See, Orten v. Salt Lake Cty., State Records Committee Order No. 22-08 (Feb. 28, 2022). On March 17, 2022, the Committee held a second hearing and determined the following.
FACTS
On or about August 31, 2021, Ms. Orten made two records requests pursuant to the Government Records Access and Management Act (“GRAMA”) to Respondent, Salt Lake County (Request #’s 1 & 2). On September 15, 2021, Ms. Orten made a records request for communications received by or sent by Salt Lake County Clerk Sherrie Swensen and Mark Pemberton (Request #3). Another records request was made on October 19, 2021, (Request #4). On November 9, 2021, Ms. Orten made two more records requests for communications by Ms. Swensen using the words “voter roll(s)” or “canvas(ing)(ers)” (Request #’s 5 & 6). With the requests, Ms. Orten also requested a fee waiver for the fees incurred producing the records.
In a letter dated September 13, 2021, Respondent’s Administrative & Fiscal Manager stated that it would take an additional twelve weeks to provide the records and suggested a narrowing of the scope of the request in order to lower the costs for Request #’s 1 & 2. In a letter dated September 29, 2021, the Administrative & Fiscal Manager stated that Request #3 would require an additional two weeks and that a response from Respondent would be received by October 13, 2021. A letter dated November 1, 2021, from the Administrative & Fiscal Manager similarly stated that payment would be required prior to fulfilling Request #4. The Administrative & Fiscal Manager stated that for Request #’s 5 & 6, an upfront payment of $278.81 would be required prior to beginning work on providing the records.
Ms. Orten filed appeals with Ms. Swensen of the Administrative & Fiscal Manager’s responses to her six records requests. Ms. Swensen denied each of Ms. Orten’s requests for a fee waiver. Ms. Orten filed appeals with Megan Hillyard, Chief Administrative Officer of Appeals for Respondent, who in a letter dated December 20, 2021, found that Request #’s 1 & 2 had not been timely filed, and that Request #4 was not ripe for appeal because a department level appeal had not yet been filed. Ms. Hillyard found that Request #’s 3, 5, & 6 should be remanded back because “the record does not justify the estimated fees.” Ms. Hillyard later issued an opinion denying Ms. Orten’s request for a fee waiver on February 3, 2022.
An appeal filed by Ms. Orten was received by the Committee on December 3, 2021. Ms. Orten has sought to have the Committee review all six records requests with this appeal. Counsel for Respondent has requested dismissal of the appeal based upon a failure to have all procedural steps completed prior to the appeal being heard by the Committee. The Committee heard arguments from the parties at its February 17, 2022 hearing and then on March 17, 2022, the Committee met again and issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Each political subdivision may adopt an ordinance or a policy applicable throughout its jurisdiction relating to information practices including classification, designation, access, denials, segregation, appeals, management, retention, and amendment of records. Utah Code § 63G-2-701(2)(a). A political subdivision shall establish an appeals process for persons aggrieved by classification, designation, or access decisions. Utah Code § 63G-2-701(5)(a). A political subdivision’s appeals process shall include a process for a requester to appeal an access denial to a person designated by the political subdivision as the chief administrative officer for purposes of an appeal under Utah Code § 63G-2-401. Utah Code § 63G-2-701(5)(b). A political subdivision may establish an appeals board to decide an appeal of a decision of the chief administrative officer affirming an access denial. Utah Code § 63G-2-701(5)(c)(i).
2. Counsel for Respondent argued that the Committee does not have jurisdiction over Ms. Orten’s Request #’s 1, 2, & 4 because Ms. Hillyard’s jurisdiction was limited by Salt Lake County Policy 2040. Policy 2040 2.1.4 states that the Chief Administrative Officer for Appeals cannot assume jurisdiction over an appeal if the requestor files a notice of appeal more than 30 days after receiving an adverse decision from the agency designee. Policy 2040 2.1.5 specifies that a notice of appeal is considered filed when it is received and date stamped at Respondent’s office of the Chief Administrative Officer for Appeal, and “[n]o notices of appeal sent by facsimile, e-mail or any other electronic submissions will be accepted.” Respondent argued that Request #’s 1 & 2 were filed 49 days after the October 18, 2021, decision by Ms. Swenson. Regarding Request #4, Respondent argued that Respondent’s Chief Administrative Officer of Appeals has not yet fully reviewed that appeal filed by Ms. Swenson.
3. After having considered the evidence and the arguments made by the parties, the Committee agrees with Respondent’s claim that the Committee does not have jurisdiction to review Ms. Orten’s appeal for Request #’s 1 & 2 because the appeals were filed untimely with Respondent’s Chief Administrative Officer of Appeals. The Committee finds that Ms. Orten’s appeal for Request #4 is not ripe for review by the Committee because Respondent’s Chief Administrative Officer of Appeals has yet not fully reviewed this request prior to the Committee’s review.
4. Ms. Orten argues that for Request #’s 3, 5, & 6, she is entitled to a fee waiver of the cost of providing the records. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include: (1) The cost of staff time for compiling or formatting the record into an organization or media to meet the person’s request; or (2) The cost of staff time for search, retrieval and other direct administrative costs for complying with a request. Utah Code § 63G-2-203(2)(a)(i) & (ii).
5. A governmental entity may require payment of future estimated fees before beginning to process a request if fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i).
6. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).
7. The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, 52 & 53, 435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
8. Ms. Orten argued before the Committee that a fee waiver should be granted for Request #’s 3, 5, & 6 because of the great public interest in the subject matter of the requested records. Ms. Orten stated that she is a member of the Utah Freedom Coalition which was formed to help citizens of the State of Utah become more informed and involved with the government. Ms. Orten contended that the reason for the requested records was because of the public interest in the 2020 primary and general elections. As Salt Lake County Clerk, Ms. Swensen is an elected county official who has responsibilities for Salt Lake County elections. Ms. Orten claimed that the requested records involving Ms. Swensen and Mr. Pemberton would help the general public understand the government processes of the 2020 election in Salt Lake County and help promote transparency in government. Ms. Orten also presented evidence showing the public interest from individuals other than herself in the information contained within the requested records.
9. The original estimate given by Respondent for providing records responsive to Request #’s 3, 5, & 6 was $17,661.81. Ms. Orten successfully argued before Respondent’s Chief Administrative Officer of Appeals that the estimated fee was excessive. Ms. Hillyard remanded the matter back to Ms. Swensen and who then found that the records could be produced at the cost of $1,769.33 Ms. Hillyard affirmed this amount in her February 3, 2022 decision, but still denied Ms. Orten’s request for a fee waiver.
10. After having considered all the arguments presented by both parties, the Committee finds that Ms. Orten has demonstrated that releasing the records primarily benefits the public rather than a person. Given that the Committee “has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied”, the Committee finds that given the great public interest in the 2020 primary and general elections within Salt Lake County and the issues raised by Ms. Orten in that election, that it would be for the public’s benefit to have this information released. Accordingly, the Committee finds that Respondent’s denial of Ms. Orten’s request for a fee waiver for Request #’s 3, 5, 6 was an unreasonable denial and order that her request for a fee waiver be granted.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jennifer Orten, is hereby GRANTED in part and DENIED in part as stated in this Decision and Order.
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).
Entered this 28 day of March 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 20-60
By this appeal, Petitioner, Steven Onysko, seeks access to records allegedly held by Respondent, Attorney General’s Office.
FACTS
On or about September 30, 2019 Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested:
[A]ll records and documentation relating to State agents’, including but not limited to Office of Attorney General’s agents’, unsuccessful and successful contact of the former Civil Deputy, … any time commenting April 6, 2018 (her purported separation date from State service) for purpose of the State, including any of its OAG or other agents, making injury or other communication vis-à-vis the State building access card, cellphone and computer laptop still in the former Civil Chief Deputy’s possession or control through the purported May 22, 2018, theft of this property, reported in Unified Police Greater Salt Lake report.
Mr. Onysko’s request was furthered with additional sub-categories to the above.
On October 22, 2019, Respondent notified Mr. Onysko that a reasonable search of the Office found no records responsive to a specific portion of his request, but did locate two pages of email records responsive to another part of his request. Respondent also notified Mr. Onysko that those records were part of a previous GRAMA request made by Mr. Onysko and have been classified as protected attorney work product.
Mr. Onysko appealed the denial, and on December 6, 2019, the Chief Administrative Officer upheld the classification of the two email records as attorney work product. Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). On November 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After an in camera review and carefully considering the requested relief of the parties, the Committee 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 § 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. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18). The Utah Supreme Court has stated that the “work product doctrine” in GRAMA does not shield records that a party would have generated pursuant to “ordinary course of business” administrative procedures even without the prospect of litigation. S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88 ¶ 25, 200 P.3d 643, 652.
3. Respondent provided to the Committee the two email records that had been found that were responsive to Mr. Onysko’s records request. Respondent argued that the record should be classified as a protected record pursuant to Utah Code § 63G-2-305(18). The Committee reviewed the email records in camera and determined that although the records had been created by attorneys, it did not involve work product of the attorneys and instead appeared to involve actions done in the ordinary course of business for Respondent unrelated to litigation. Accordingly, the Committee finds that the records were not properly classified as a protected record pursuant to Utah Code § 63G-2-305(18), and should be released as a public record.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko is hereby GRANTED.
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.
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).
Entered this 23 day of November 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JEFFREY BENNION, Petitioner, v.
UTAH HOUSING CORPORATION, Respondent.
DECISION AND ORDER
Case No. 21-59
By this appeal, Petitioner, Jeffrey Bennion, seeks access to all records related to him or that mention him held by the Respondent, Utah Housing Corporation.
FACTS
In a letter dated March 5, 2021, legal counsel for Mr. Bennion made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). The request was for all materials in Respondent’s files and archives in relation to a specified individual. In a letter dated March 17, 2021, Jonathan A. Hanks, Senior Vice President for Respondent, provided documents and stated that some of the searches provided no responsive document. Mr. Bennion’s legal counsel responded with a letter dated April 9, 2021 provided more clarity regarding the records request including referencing “Cowboy Partners L.C.” After several letters were exchanged between Mr. Bennion’s counsel and Mr. Hanks, a letter dated June 30, 2021 from Mr. Hanks no more records were responsive to the records request and “that of the documents…have been provided to Mr. Bennion in response to the earlier GRAMA request.” In a nine-page letter dated July 27, 2021, David Damschen, President and CEO of Respondent, addressed issues raised in Mr. Bennion’s June 30, 2021 letter concluding that there are no more responsive records to Mr. Bennion’s request.
Mr. Bennion filed an appeal with the State Records Committee (“Committee”). On November 18, 2021, 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. Also participating in the hearing was legal counsel for Cowboy Partners, LLC, as an interested third party. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A person has the right to inspect a public record free of charge and take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). However, in response to a records request, a governmental entity is not required to: (1) Create a record; or (2) Compile, format, manipulate, package, summarize, or tailor information. Utah Code § 63G-2-201(8)(a) & (b).
2. After having considered all of the evidence and arguments presented by both parties, the Committee finds that Respondent has provided all documents responsive to Mr. Bennion’s records request. Accordingly, Mr. Bennion’s appeal is denied.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jeffrey Bennion, is hereby DENIED.
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).
Entered this 30 day of November 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS, Petitioner, v.
HEBER CITY POLICE, Respondent.
DECISION AND ORDER
Case No. 22-26
By this appeal, Petitioner, Adam Herbets, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, Heber City Police. On June 16, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present arguments and evidence. At the hearing, the Committee unanimously voted to continue the matter until the next Committee hearing to be held on July 21, 2022, in order to allow Mr. Herbets to review any redactions made by Respondent in the records provided to him by Respondent.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, is hereby CONTINUED until the Committee’s July 21, 2022 hearing.
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 governmental 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 28 day of June 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
SANPETE COUNTY, Respondent.
DECISION AND ORDER
Case No. 22-49
By this appeal, Patrick Sullivan (“Petitioner”) is requesting records allegedly held by Sanpete County (“Respondent”).
FACTS
As an initial matter, this review was originally heard by the State Records Committee (“Committee”) on October 13, 2022, when we issued Order No. 22-44. In that hearing, Respondent failed to attend and Petitioner agreed to a continuance which we now hear. For background, we recite the facts from Order No. 22-44.
On February 22, 2022, Petitioner, a current inmate of Utah State Correctional Facility, requested records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Specifically, he requested all emails from a list of individuals that mentioned him, along with any attachments to those emails, that were sent from January 1, 2019, to the date of his request. Petitioner also requested a “certified copy of summons” for a specific district court case along with a signature showing the date Respondent received the document and a copy of the envelope. Petitioner’s requests and appeals to the chief administrative officer both went unanswered, and because the GRAMA treats a government entity’s failure to respond to a request for records the same as a formal denial (Utah Code §§ 63G-2-204(9); 63G-2-401(5)(b)(i)), he now brings this appeal to the Committee.
The Committee held a hearing on November 17, 2022, 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.
STATEMENT OF REASONS FOR DECISION
In hearing this appeal, the Committee is tasked with interpreting the GRAMA as it pertains to individuals confined to a correctional facility and the number of record requests he may submit. On this point, the GRAMA states: “. . . 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). However, to balance the rights of inmates, the legislature carved out two exceptions. The exception relevant to this appeal is subsection 10(b)(i) which states that “[s]ubsection (10)(a) does not apply to the first five record requests submitted to the governmental entity by or in behalf of [the inmate] during any calendar year requesting only a record that contains a specific reference to the individual.” Utah Code § 63G-2-201(10)(b)(i). In this review there is no question that Petitioner’s requested records contained a specific reference to himself. Therefore, we must analyze what constitutes a single records request for a single governmental entity. If upon that determination we find that Petitioner has already submitted five records requests in this calendar year, then we must decide that the statutory exemption, (10)(b)(i), falls off and gives the governmental entity full discretion on whether to grant or deny the request.
To begin, we first examine the GRAMA’s definition of “governmental entity.” The relevant subsections are as follows:
“(11)(a) ‘Governmental entity’ means:
. . .
(v) any political subdivision of the State . . . .”
(b) ‘Governmental entity also means:
(i) every office, agency, board, bureau, committee, department, advisory board, or commission of an entity listed in Subsection (11)(a) that is funded or established by the government to carry out the public’s business.”
Utah Code § 63G-2-103(11)(a)(v) & (b)(i).
In this case, the question is whether the Sanpete County Clerk’s Office and Sanpete County Sheriff’s Office are distinct governmental entities or if Sanpete County as a political subdivision is the sole governmental entity and the Clerk’s Office and Sheriff’s Office fall under its umbrella.
Respondent argues that the GRAMA’s appeal scheme aids interpretation. Looking to the GRAMA’s appeal process when a governmental entity denies a records request, the statute states: “A requester or interested party may appeal an access denial to the chief administrative officer of the governmental entity . . . .” Utah Code § 63G-2-401(1)(a) (emphasis added). Likewise, “[i]f the decision of the chief administrative officer of a governmental entity under Section 63G-2-401 is to affirm the denial of a record, the requester may . . . .” Utah Code § 63G-2-402(1) (emphasis added). Respondent essentially argues that under these subsections an entity cannot be considered a “governmental entity” if it does not have a chief administrative officer to handle its appeals. After all, how else would a requester find relief for a denied records request if the GRAMA requires an appeal to the entity’s chief administrative officer and the entity doesn’t have one? Respondent argues this point is especially true in rural counties such as its own where offices of the political subdivision are typically small with only one or two employees handling its administrative matters and municipal functions. We agree with Respondent’s interpretation. Per the GRAMA’s requirement to appeal access denials to “the chief administrative officer of the governmental entity,” we find that only if an entity that has a chief administrative officer does it meet the legal definition of “governmental entity” under § 63G-2-103(11).
Here, Petitioner filed GRAMA requests with the clerk and sheriff’s offices of SanpeteCounty. Because neither office is equipped with a chief administrative officer, the GRAMA requests must be considered a request to Sanpete County itself, which does have a chief administrative officer. Therefore, for purposes of the GRAMA’s provision limiting inmates to five records requests before the governmental entity is no longer obligated to respond, we determine that records requests sent to the county clerk and sheriff’s office are counted as requests to Sanpete County as a whole.
In determining that the Sanpete County clerk and sheriff’s offices do not constitute governmental entities under the GRAMA, we now turn our attention to the number of record requests Petitioner submitted to Respondent.
Petitioner does not dispute that the GRAMA allows a governmental entity to disregard records request if the individual is confined to a correctional facility and has submitted more than five records requests during the calendar year. Utah Code § 63G-2-201(10)(a)-(b)(i). Petitioner does, however, dispute the number of records requests he has so far submitted to Respondent. To resolve this question, we again turn to the GRAMA’s definitions.
Under the GRAMA, “record” is a term of art that means:
“a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics:
(i) that is prepared, owned, received, or retained by a governmental entity or political subdivision; and
(ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.”
Utah Code § 63G-2-103(22)(a).
We note that each item listed under § 103(22)(a) is singular in form. The fact that the definition lists “letter, document, paper, . . . or other documentary material regardless of physical form . . .” as singular items and not in plural is especially pertinent to this appeal. Here, Petitioner requested all emails from a list of individuals that mentioned him, along with any attachments to those emails, that were sent from January 1, 2019, to the date of his request. Certainly, an email would constitute a “letter” under § 103(22)(a), but the more pressing question is how many emails may Petitioner request before Respondent is no longer required to respond? Respondent, of course, argues that the statute’s plain language – the singular use of each item in § 103(22)(a) – makes clear that a single email would constitute a “record” under the GRAMA. Accordingly, Respondent urges us to determine that it is required to return only five single emails out of the many Petitioner requested.
However, Petitioner rebuts this with Utah Code § 68-3-12, which provides rules of construction for the Utah legislative code. These rules of construction were enacted by the Legislature to aid in interpreting the code. Section 68-3-12(1)(b) states that “[t]he singular includes the plural, and the plural includes the singular.” Utah Code § 68-3-12(1)(b). From this, Petitioner argues that under the legislature’s express instruction, every singular item listed in the GRAMA’s definition of a “record” also includes the plural. As a result, Petitioner claims that a “letter” under the GRAMA necessarily and legally is also multiple letters. Thus, according to the legislature’s rules of statutory interpretation, his request for “any and all emails” constitutes a request for a single “record” under the GRAMA’s definition of that word.
Indeed, Petitioner’s application of § 68-3-12(1)(b) by itself to the GRAMA is correct and would create the result he argues for if it stood alone. However, Petitioner misses the statute’s preceding subsection that, we find, bars its application to the GRAMA. Section 68-3-12(1)(a) states:
“In the construction of a statute in the Utah Code, the general rules listed in this Subsection (1) shall be observed, unless the construction would be:
(i) inconsistent with the manifest intent of the Legislature; or
(ii) repugnant to the context of the statute.
Utah Code § 68-3-12(1)(a) (emphasis added).
We believe that applying Subsection 12(1)(b) to the GRAMA’s definition of “record” would be not only inconsistent with the intent of the Legislature, but also repugnant to the context of the GRAMA. If that rule of construction were applied to the GRAMA, the results could so bog down a government office that its very functionality would be impaired. For example, if an individual submitted a request for “any document relating to the government lease for 123 Street,” then the government would be required to disclose all documents relating to that lease, such as relevant communications, financials, procurement requests, and more. Such a request for any singular “document” would overburden the government in searching for and compiling all documents relating to the requested subject matter. For this reason, the government is permitted to seek clarification from the requester about which specific “document” relating to 123 Street he or she desires.
Consequently, we find that applying § 68-3-12(1)(b) to the GRAMA would be repugnant to its purpose and statutory scheme. Accordingly, we determine that the definition of “record” is that of singular items responsive to the request. As such, in response to his request for any and all emails sent by individuals he named in his request and within the time period he specified, Petitioner is entitled to receive no more than five single emails. Anything beyond that is within Respondent’s discretion.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is DENIED in part and GRANTED in part. We hereby order the following:
1. Petitioner’s request that all remaining records in Respondent’s possession be delivered as a single record responsive to his request is denied.
2. Because Respondent has so far delivered four responsive records to Petitioner’s request, Respondent shall contact Petitioner to determine which remaining record he wants disclosed to satisfy his request. Any additional disclosures are within Respondent’s discretion under Utah Code § 63G-2-201(10)(a).
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-G404(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).
Entered this 29 day of November 2022
BY THE STATE RECORDS COMMITTEE
_________________________________________
NANCY R. DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
IAN COOPERSTEIN, Petitioner, v.
UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 22-16
By this appeal, Petitioner, Ian Cooperstein, seeks access to records allegedly held by Respondent, the University of Utah.
FACTS
On May 15, 2021, Mr. Cooperstein made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent, the University of Utah (“University”). Mr. Cooperstein requested access to correspondence between human resources for the University and two people regarding a complaint he had previously filed. On January 18, 2022, the University provided Mr. Cooperstein with copies of all responsive records it was able to locate except for an email thread classified protected pursuant to Utah Code 63G-2-305(17). The University also provided a record with redactions of the personal cell phone number of a University employee pursuant to Utah Code § 63G-2-302(2)(a) & (d).
On January 19, 2022, the University received Mr. Cooperstein’s appeal wherein he alleged that three groups of records were “missing” from the University’s response. In a letter dated February 2, 2022, Todd Samuelson, Chief Administrative Officer and GRAMA Appeals Officer for the University, stated that in “review of the request our office found that the University responded appropriately.” Mr. Samuelson upheld redactions of portions of the requested records were properly withheld because they were subject to the attorney client privilege, and that the redactions made concerning personal information about University employees were proper.
Mr. Cooperstein filed an appeal with the State Records Committee (“Committee”). On May 19, 2022, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, testimony, and arguments of the parties. After having carefully considered all evidence presented to the Committee, the Committee 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 § 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. Records that are subject to the attorney client privilege are protected records pursuant to Utah Code § 63G-2-305(17).
3. Based upon the evidence and the presentations by the parties, the Committee is convinced that the University did a thorough search for records responsive to Mr. Cooperstein’s records request. The Committee also finds that the email thread with legal counsel for the University concerning a risk assessment related to the potential termination of a University employee, was properly classified as “protected” pursuant to Utah Code § 63G-2-305(17) because the information is covered by the attorney client privilege, and therefore, is not subject to disclosure.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ian Cooperstein, is hereby DENIED.
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).
Entered this 31 day of May 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVE REGRUTO, Petitioner, v.
CARBON COUNTY, Respondent.
DECISION AND ORDER
Case No. 22-40
By this appeal, Petitioner, Steve Regruto, is requesting access to internal affairs investigation records - specifically, two email correspondence, dated May 8, 2020, and May 12, 2020, between the city attorney and employees of Respondent or the Price City Police Department.
FACTS
On February 7, 2022, Mr. Regruto made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Regruto requested “any and all records in the possession of the Carbon County Sheriff’s Office regarding the Price City Police Department Internal Affairs Investigation.” After not receiving a response, Mr. Regruto filed an appeal to the Chief Administrative Officer on March 7, 2022. Carbon County failed to respond to the appeal.
The State Records Committee (“Committee”) received an appeal from Mr. Regruto on April 20, 2022. On September 15, 2022, the Committee held a hearing during which the parties were allowed to participate. Respondent argued that the records in question were protected because of attorney-client privilege, and that the public interest in disclosing the records did not outweigh Respondent’s interest in not disclosing the records. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. The Committee voted to review the disputed records in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
The first question is whether the records in question were properly classified as protected under Utah Code § 63G-2-305(17) and/or (18). The Committee finds that records in question were properly classified as protected. Respondent established that there was an attorney-client relationship between the communicants to the record, that the records in question contained a transfer of confidential information, and that the purpose of the transfer was to obtain legal advice. As such, the records were properly classified as protected.
The second question is whether Mr. Regruto has established by a preponderance of the evidence that the public interest favoring disclosing the records is equal to or greater than the interest favoring restricting access to the records. The Committee finds that Mr. Regruto has not established by a preponderance of the evidence that the public interest favoring disclosing the records is equal to or greater than the interest favoring restricting access to the records. As such, the Committee will not order Respondent to provide the records in question.
Finally, Mr. Regruto had requested records responsive to a formulation of questions made to Respondent. Respondent responded to this request by informing Mr. Regruto that Respondent was not in possession of records responsive to the formulation of questions. The Committee finds that there is no evidence that Respondent’s response was incorrect, and, therefore, that there is no reason at this time to believe that Respondent should be ordered to produce records responsive to the formulation of questions.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steve Regruto, is hereby DENIED.
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).
Entered this 26 day of September 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
THE OFFICE OF THE UTAH ATTORNEY GENERAL, Respondent.
DECISION AND ORDER
Case No. 22-56
By this appeal, Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by the Office of the Utah Attorney General (“Respondent”).
FACTS
On or about March 31, 2022, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking any and all records pertaining to the investigation of a firearm left at the Hale Center Theater after the Attorney General’s Office held an office-wide meeting there in 2014. In response to his request, Petitioner received 14 pages of responsive records with a single redaction – that of a personal email address contained in one of the documents.
Petitioner appealed this response to the Respondent’s chief administrative officer (“CAO”) arguing that there may be additional records such as text messages that had not been provided and that the redaction should be lifted. However, that appeal was denied because Petitioner offered no persuasive reason to lift the redaction, that the Respondent’s search was inadequate, or that additional records exist and are in the Respondent’s possession.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 15, 2022, 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.
STATEMENT OF REASONS FOR DECISION
A. The Reasonableness of Respondent’s Search
The GRAMA states 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). While the GRAMA requires that an individual identify the records he seeks with “reasonable specificity,” it does not set a clear standard for the governmental entity on how to conduct its search. Utah Code § 63G-2-201(7)(b). When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance. See e.g., Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations).
Under the FOIA, when a governmental entity receives a records request, its search must be reasonable with the reviewing court looking at the entity’s process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The issue we must review is not whether remaining records may exist, but whether the entity’s search efforts were adequate. Weisberg, at 1351. If the search is challenged by the records requester, the governmental entity then bears the burden of showing that the search was reasonable. See Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir.1990). And “reasonableness” is dependent on the circumstances in the case. Weisberg, at 1351. If it’s determined that the governmental entity performed a reasonably adequate search, our Utah Administrative Rules then require the requester to provide sufficient evidence that additional records exist and are in the entity’s possession. Utah Administrative Rule R35-2(2).
In this case, Petitioner seeks records from an incident that occurred eight years ago. We acknowledge up front that this fact plays a significant part in determining whether the Respondent’s search was reasonable. Absent any formal investigation or proceeding, records of an incident that happened at an office meeting in 2014 may be minimal.
The Respondent’s records counsel, Lonny Pehrson, presented to the Committee that in response to Petitioner’s request, he conducted an office-wide search, which included contacting its records custodians, the Respondent’s executives, and the investigations division. All denied having any responsive records. Further, the investigations division informed Mr. Pehrson that an investigation was never conducted into the matter and, therefore, there was no investigation report. After that, Mr. Pehrson performed an email archive search for any emails relevant to the incident. According to Mr. Pehrson, the search took several hours as he examined over 200 emails that went out within the Respondent’s office about the incident. From that email archive search, the Respondent provided to Petitioner the initial email that went out to all employees about the incident and providing instructions on how to retrieve the firearm if they were the owner, as well as all responses to that email. This delivery to Petitioner constituted 14 pages. Nothing in those 14 pages indicated that further records about the incident existed. From his search efforts, Mr. Pehrson concluded that the matter was handled solely by the Respondent’s Communication Director who sent out the office-wide email. Because there was no formal investigation into the matter, there were no other responsive records aside from the emails.
Finally, Mr. Pehrson presented to the Committee his search efforts regarding responsive text messages: Because the Respondent has no means to centrally search all text messages within the office – especially from eight years ago – Mr. Pehrson inquired of investigations division about text messages because they were most likely to have any that may be directly relevant. However, the investigations division had none.
Given that the incident occurred eight years ago, we find that the Respondent’s search efforts, as conducted by Mr. Pehrson, were reasonably adequate.
With the Respondent satisfying its burden of showing that its search was reasonable, the burden shifts to Petitioner to show that additional records do in fact exist. The Utah Administrative Rules states,
In any appeal to the Committee of a governmental entity’s denial of access to records for the reason that the record is not maintained by the governmental entity, the petitioner shall provide sufficient evidence in the petitioner’s statement of facts, reasons, and legal authority in support of the appeal, that the record was maintained by the governmental entity at one time, or that the governmental entity has concealed, or has not sufficiently or has improperly searched for the record.
Utah Administrative Rule R35-2(2).
Here, Petitioner offered no direct evidence that additional records existed. Accordingly, we find that without evidence to the contrary, the Respondent has met its burden in responding to Petitioner.
B. Propriety of the Redaction
Although Petitioner challenged the CAO’s decision about the redaction, he did not raise the issue in the hearing. In fact, it was the Respondent who brought up the redaction and explained that within the 14 pages of responsive records there was a single redaction – that of a personal email address, which the Respondent redacted under Utah Code § 63G-2-302(2)(d). Because Petitioner did not challenge the issue on the appeal, we see no reason to analyze this issue; therefore, we leave the CAO’s decision undisturbed.
ORDER
THEREFORE, because of the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 27th day of December 2022
BY THE STATE RECORDS COMMITTEE
_________________________________________
NANCY DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TIM McCONNEHEY, Petitioner, v.
JORDAN SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 23-11
By this appeal, Tim McConnehey (“Petitioner”), requests records allegedly held by Jordan School District (“Respondent”).
FACTS
When an individual is elected to the Jordan School District School Board, Respondent issues him or her an official government email address typically in the form of [first name].[last name]@jordandistrict.org to conduct and carry out their business and communications. Respondent is the server and administrator for these issued email addresses and can therefore retrieve emails from the server to respond to applicable Government Records Access and Management Act (“GRAMA”) requests. However, Board Member, Darrell Robinson, does not use an official government email address. Instead, he chooses to use his personal gmail address which, from the time of Petitioner’s initial GRAMA request through the date of this Decision and Order, has been and is listed on Respondent’s website next to his name, picture, position with the board, phone number, position with the board, district he represents, and term he is currently serving. Board Member Robinson is the only board member of the seven to have his personal email address listed on the webpage for public contact.
On September 22, 2022, Petitioner submitted a records request to Respondent pursuant to the GRAMA. In his request, Petitioner stated that Mr. Robinson “is using a personal Gmail account for government business. He has threatened to close West Jordan Elementary but will not share his records, costs, or any other information. . . . We want to access all emails about West Jordan Elementary.” Petitioner then provided the personal gmail account listed on Respondent’s website that Board Member Robinson has listed to conduct government business so that Respondent can retrieve responsive emails.
On October 3, 2022, Respondent replied to Petitioner’s request, informing him that because Respondent does not maintain emails from the gmail address he provided, it can produce no responsive records. Accordingly, Respondent denied Petitioner’s request.
Petitioner lodged an appeal with Respondent’s chief administrative officer (“CAO”) on October 13, 2022. In his appeal, Petitioner used orders previously issued by this Committee to argue that the emails held in Mr. Robinson’s personal gmail account were subject to disclosure under the GRAMA. He made clear to the CAO that he was not seeking personal communications, but only those relevant to his request. However, the CAO never responded to Petitioner’s appeal, thus constituting a formal denial under Utah Code § 63G-2-401(5)(b).
Petitioner has now appealed to the State Records Committee (“Committee”), challenging Respondent’s determination that it cannot retrieve and disclose the emails on Mr. Robinson’s personal gmail account. On March 16, 2023, 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.
ISSUE FOR REVIEW
1. Whether Board Member Robinson’s emails are subject to disclosure under the GRAMA when the emails are sent and received from a private email address rather than a government email.
STATEMENT OF REASONS FOR DECISION
A main purpose of the GRAMA’s enactment was to recognize an important Constitutional right: “[T]he public’s right of access to information concerning the conduct of the public’s business.” Utah Code § 63G-2-102(1)(a). In so doing, the law states that “a person has the right to inspect a public record free of charge.” Utah Code § 63G-2-201(1)(a). This right, however, is conditioned on the records being “public records.” Naturally, the law imposes no right of access to private records held by an individual. See Id. Therefore, we begin our analysis with whether a government official’s email correspondences are public records.
A. Emails Can Be Public Records
It is generally well established that emails can be public records. In relevant part, Subsection 103(22)(a) states that a “record” can be a “letter, document, paper, . . . or other documentary material regardless of physical form or characteristics: (i) that is prepared, owned, received, or retained by a governmental entity or political subdivision . . . “ Utah Code § 63G-2-103(22)(a)(i) (emphasis added). Of course, an email is a letter in electronic form. Because Subsection 103(22)(a) makes the physical form of a letter immaterial, it is clear that the law considers an electronic letter – an email – a record. See generally., Southern Utah Wilderness Alliance v. Automated Geographic Reference Center, Division of Information Technology, 2008 UT 88, 200 P.3d 643 (requiring disclosure of all records requested which included emails); see also Ken Cromar v. City of Cedar Hills, Utah State Records Committee, Decision and Order 12-11 (June 25, 2012) (ordering the disclosure of emails upon payment of the fees charged to compile the emails). Establishing that emails are “records” under the GRAMA, we examine whether emails are public records when they are sent and received by a government official’s personal email account as opposed to his government account.
Petitioner relies on multiple cases that have come before the Committee involving personal communications to argue that the emails concerning West Jordan Elementary received and sent from Board Member Robinson’s personal gmail account are subject to disclosure in a GRAMA request. In Henderson v. San Juan County, Decision and Order 19-33, Utah State Records Committee, (Sept. 23, 2019), we determined that, depending on their content, the text messages sent by a county commissioner from his personal cell phone during a county commission meeting could constitute a public record since he was acting in his official capacity when he was texting. In that decision we declared that “it would be inappropriate for a public official to attempt to circumvent the requirements of [the Open Public Meetings Act] and GRAMA by using a private device while conducting the people’s business.” Id. (Internal quotations omitted.)
Later, in Allen v. Utah County, Decision and Order 21-36, Utah State Records Committee (June 21, 2021), the requester sought the text messages from an elected county commissioner’s personal cell phone as they related to potential development of Bridal Veil Falls. Although a personal cell phone was at issue, there was little question that communications about Bridal Veil Falls would be in connection with his official capacity as a county commissioner, and therefore, we determined that any such text messages were public records under the GRAMA.
While these previous decisions pertain to text messages, we see no difference in their application to a government official’s private email account. As our previous decisions demonstrate, it is not the ownership of the device or account that is dispositive to whether a communication is a public record; it is the context and content of those communications that trigger open records laws. As a result, we determine that in his capacity as a government official, Board Member Robinson’s emails are subject to disclosure if they contain the public’s business irrespective of which email account he uses.
B. Elected Officials’ Email Communications Are Subject to GRAMA
However, Respondent argues that even if Board Member Robinson’s private gmail account was subject to the GRAMA’s reach, the emails in question are not public records because he is an elected official. Respondent bases its argument on the GRAMA’s Subsection 301(2)(m) which states:
(2) The following records are public except to the extent they contain information expressly permitted to be treated confidentially under the provisions of Subsections 63G-2-201(3)(b) and (6)(a):
(m) for an elected official, as defined Section 11-47-102, a telephone number, if available, and email address, if available, where the elected official may be reached as required in Title 11, Chapter 47, Access to Elected officials.
Utah Code § 63G-2-301(2)(m).
According to Respondent, because Subsection (2)(m) states that only the elected official’s telephone number and email address are public records, the legislature’s intent was to make elected officials’ actual email correspondences exempt from open records laws. This interpretation is not only unsupported by the text of the statute, but it would defeat GRAMA's purpose in providing transparency to the public and holding their elected officials accountable.
Subsection 301(2) is not outlining an exhaustive list of public records as Respondent claims. The GRAMA’s framework does not create a finite list of public records. Instead, the Code presumes an indefinite list of public records while firmly establishing a finite list of records that aren’t public or are otherwise shielded from disclosure. Thus, the public records listed in Section 301 are those with an attached condition that may prevent their disclosure. Subsection (2) carves out specific records that are public “except to the extent they contain information expressly permitted to be treated confidentially under the provisions of Subsections 63G-2-201(3)(b) and (6)(a).” Thus Subsection 301(2)(m) is saying that the phone number and email address are normally public records unless a different governing statute, regulation, or court ruling declares that they may be confidential. This has no applicability to the actual communications an elected official has, nor can it be read in that way. Therefore, we reject Respondent’s interpretation of Subsection 301 (2)(m). Elected officials’ emails are subject to open records laws.
C. Respondent’s Responsibility for Board Members’ Emails
In establishing that, as an elected official, Board Member Robinson’s personal email account is subject to a GRAMA request regardless of him being an elected official, we turn now to Respondent’s responsibility in this matter.
We note that under Utah Code § 53G-4-401, the Jordan School District Board of Education is a local school board and its own “body corporate” under the Code. Per section 401, the Board of Education is “vested with the powers and duties of a government entity” and “may sue and be sued” as it “serves and represents the residents of the local school board member’s district.” Utah Code § 53G-4-401(1), (4)-(5). Thus, although the Board of Education is comprised of elected officials, the sum of its parts creates a distinct corporate body under the law unconnected to its school district. This means that the Board is a governmental entity under the GRAMA and, therefore, each board member is subject to it. See Utah Code § 63G-2-103(11). Although it is a distinct governmental entity separate from Respondent, for the following reasons we find that Respondent is responsible for retrieving and disclosing Board Member Robinson’s responsive emails.
The facts are undisputed that all members of the Jordan School District Board of Education use an official government email address save Board Member Robinson. It is both material and significant that Respondent has chosen to issue the individual board members an official district email address. As Respondent has voluntarily taken on the responsibility to be the email server for the elected members of Jordan School District Board of Education, it has necessarily accepted responsibility to maintain the members’ email records. Consequently, it cannot skirt responsibility of diligently searching and working to retrieve responsive records for any and all GRAMA requests merely because it allows a board member to use a personal email address in lieu of the district email address it generally provides. If any other board member was the subject of a GRAMA request, Respondent would be wholly able to search its database and retrieve the responsive records in a timely fashion. But permitting board members to use their personal email address drastically affects how the public’s records requests will be handled and fulfilled. And where the legislature has been clear that a central purpose of the GRAMA is to “promote the public’s right of easy and reasonable access to unrestricted public records,” we see Respondent’s permissive approach to board members’ choice of emails as a serious and alarming problem. Utah Code § 63G-2-102(3)(a).
If Respondent allows Board Member Robinson to discard the district email address it provides, even to the extent of allowing him to publish his personal email address for official use on the district page where all other members list their district email, then Respondent incurs the responsibility of requiring Board Member Robinson to search his gmail account for all records that are responsive to each GRAMA requests it receives.
D. GRAMA Requires Records Retention to Foster the Public’s Trust
Finally, as our decision today illustrates, the public has the right to place its trust in governmental entities and their elected officials to properly retain public records. We are not ignorant to the fact that some government officials and employees use their personal email address to conduct official business from time to time. While those instances are problematic, the focus of concern here is Respondent issuing district email addresses to all its board members and then purposefully allowing one of those members to use and publish his personal email as his official address to carry out the public’s business. This raises grave concerns over compliance with record retention laws. When a governmental entity deliberately allows a public servant to use his personal email address to conduct public business, the public trust can be severely and quickly eroded. After all, how can a records requester ever be assured that the individual using a personal email address did not purposefully delete responsive emails? How can the public be assured that records can be timely retrieved and available for inspection under the GRAMA? See Utah Code § 63G-2-102(3) (outlining that the GRAMA’s intent is to promote easy access to unrestricted public records, prevent abuse of confidentiality, and establish fair and reasonable records management practices.) (Emphasis added.) How can the public know for sure that an individual has disclosed all of the responsive records from his own personal email account? And what level of trust can the public have in a political subdivision that knowingly allows individuals to use a personal email address and cannot guarantee proper records retention? Because of these questions and their lack of available answers, we agree that Petitioner has every right to be alarmed; not just about Board Member Robinson’s motivations with West Jordan Elementary School, but about the decisions Respondent, Board Member Robinson, and the Board of Education itself make in regard to open meeting and records laws.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is GRANTED. Respondent is hereby ORDERED to conduct another thorough search for responsive emails.
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).
Entered this 27 day of March 2023
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
ATTORNEY GENERAL'S OFFICE, Respondent.
DECISION AND ORDER
Case No. 22-20
By this appeal, Petitioner, Brady Eames, requests records allegedly held by Respondent, the Attorney General's Office (“AG’s Office”).
FACTS
On October 25, 2021, the AG’s Office received a request for records by Mr. Eames pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames sought records related to the trial and conviction of Michael Anthony Archuleta for the murder of Gordon Church in 1988. Specifically, Mr. Eames asked for “unique information in rough notes or drafts assembled or created and used to prepare other documents [that] adds proper understanding to the formulation and execution of policies, decisions, actions, or responsibilities” of the appellate division and the Solicitor General of the AG’s Office for the Archuleta case. In a letter dated November 8, 2021, Government Records Counsel for the AG’s Office denied Mr. Eames’ request, stating that the AG’s Office “has an ongoing case involving Mr. Archuleta” and therefore, the records “involving the issues you cite have been classified as protected…and cannot be provided to you.”
Mr. Eames filed an appeal on November 8, 2021 with the Chief Administrative Officer for the AG’s Office. In a letter dated November 22, 2021, Daniel Burton, General Counsel for the AG’s Office, denied Mr. Eames’ appeal finding that the requested records were properly classified as protected records. Mr. Eames filed an appeal of this decision with the State Records Committee (“Committee”) on November 22, 2021.
On December 2, 2021, Mr. Eames filed a second records request with the AG’s Office asking for every conflict screen established by the AG’s Office in relation to the Archuleta case. In a letter dated December 16, 2021, Government Records Counsel for the AG’s Office denied Mr. Eames’ request finding that because there was an ongoing case involving Mr. Archuleta, “any responsive records have been classified as protected” under GRAMA. After an appeal was filed with the Chief Administrative Officer for the AG’s office, Mr. Burton upheld the initial denial stating that the “public interest in ensuring the integrity of the ongoing legal proceedings, including resolution of Mr. Archuleta’s pending Motion to Determine Conflict, far outweighs your interest in accessing any such records at this time.” An appeal was filed by Mr. Eames with the Committee on January 4, 2022.
Because of the similar nature of the subject matter of the two appeals, Mr. Eames’ appeals were combined by the Committee into one hearing which was held on May 19, 2022. Mr. Eames failed to appear at the public hearing, but counsel from the AG’s Office was present at the hearing. After having carefully considered all evidence in the case including arguments made by Mr. Eames in writing and the written and oral arguments of the AG’s Office, the Committee 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 § 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. Records created or maintained for criminal enforcement purposes are protected records if properly classified by a governmental entity and if release of the records: (1) Reasonably could be expected to interfere with enforcement proceedings; or (2) Would create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(b) & (c).
3. Records prepared for or by an attorney, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial proceeding is a protected record if properly classified by a governmental entity. Utah Code § 63G-2-305(18). Additionally, records concerning a governmental entity’s strategy about imminent or pending litigation are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(23).
4. The Committee is persuaded by the arguments made by the AG’s Office that records it may possess that are responsive to Mr. Eames’ records request are properly classified as protected records pursuant to Utah Code § 63G-2-305(10)(b), -305(10)(c), -305(18), or -305(23), and therefore, not subject to disclosure. Mr. Archuleta is currently involved in litigation regarding his criminal conviction and the AG’s Office represents the State of Utah in that litigation. Accordingly, the Committee denies Mr. Eames’ two appeals regarding these records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeals of Petitioner, Brady Eames, are hereby DENIED.
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).
Entered this 31 day of May 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PARENTS DEFENDING EDUCATION, Petitioner, v.
SALT LAKE CITY SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 22-36
On August 18, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. At the hearing, the parties requested a continuance of the matter. The Committee voted unanimously for a continuance until the next available Committee hearing on October 20, 2022.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Parents Defending Education, is hereby CONTINUED until the next available Committee hearing.
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).
Entered this 29 day of August 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NICKOLAS PARKER, Petitioner, v.
CARBON COUNTY, Respondent.
DECISION AND ORDER
Case No. 22-39
By this appeal, Petitioner, Nickolas Parker, is requesting access to internal affairs investigation records - specifically, two email correspondence, dated May 8, 2020, and May 12, 2020, between the city attorney and employees of Respondent or the Price City Police Department.
FACTS
On February 7, 2022, Mr. Parker made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Parker requested “any and all records maintained by the Carbon County Sheriff’s Office in regard to the agency assist for a Price City Police Internal Affairs Investigation.” On February 24, 2022, Respondent notified Mr. Parker his “request has not been answered within 10 business days and is therefore considered a denial.” Mr. Parker filed an appeal to the Chief Administrative Officer on March 7, 2022. Carbon County failed to respond to this appeal.
The State Records Committee (“Committee”) received an appeal from Mr. Parker. On September 15, 2022, the Committee held a hearing during which the parties were allowed to participate. Respondent argued that the records in question were protected because of attorney-client privilege, and that the public interest in disclosing the records did not outweigh Respondent’s interest in not disclosing the records. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. The Committee voted to review the disputed records in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
The first question is whether the records in question were properly classified as protected under Utah Code § 63G-2-305(17) and/or (18). The Committee finds that records in question were properly classified as protected. Respondent established that there was an attorney-client relationship between the communicants to the record, that the records in question contained a transfer of confidential information, and that the purpose of the transfer was to obtain legal advice. As such, the records were properly classified as protected.
The second question is whether Mr. Parker has established by a preponderance of the evidence that the public interest favoring disclosing the records is equal to or greater than the interest favoring restricting access to the records. The Committee finds that Mr. Parker has not established by a preponderance of the evidence that the public interest favoring disclosing the records is equal to or greater than the interest favoring restricting access to the records. As such, the Committee will not order Respondent to provide the records in question.
Finally, Mr. Parker had requested records responsive to a formulation of questions made to Respondent. Respondent responded to this request by informing Mr. Parker that Respondent was not in possession of records responsive to the formulation of questions. The Committee finds that there is no evidence that Respondent’s response was incorrect, and, therefore, that there is no reason at this time to believe that Respondent should be ordered to produce records responsive to the formulation of questions.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nick Parker, is hereby DENIED.
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).
Entered this 26 day of September 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RAPHAEL CORDRAY, Petitioner, v.
CARBON COUNTY, Respondent.
DECISION AND ORDER
Case No. 22-52
By this appeal, Raphael Cordray (“Petitioner”), requests a fee waiver and records allegedly held by Carbon County (“Respondent”).
FACTS
As an initial matter, this review was initially heard by this Committee on October 13, 2022, when we issued Order No. 22-45. In that Order, we required Respondent disclose certain records in its possession that were not protected by privilege, and we continued the rest of the matter to this hearing. For background, we recite the facts in full from Order No. 22-45.
On March 24, 2022, Petitioner filed with Respondent a request for a fee waiver and records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested all emails and their attachments created, received, or retained by Respondent from July 1, 2020, to the date of Respondent’s response that regarded, contained, or referenced any of the following terms pertaining to Carbon County: “Satellite Port,” “Inland Port,” “Ridge Road site,” “Price river terminal,” or “Inland Port development.” Petitioner did not receive a response to her request, which under GRAMA constitutes a formal denial. Utah Code § 63G-2-204(9). On April 26, 2022, Petitioner filed an appeal to the chief administrative officer of Carbon County, who also failed to respond, thus constituting another formal denial of her appeal under Utah Code § 63G-2-401(5)(b)(i).
Petitioner filed an appeal with the State Records Committee (“Committee”) challenging Respondent’s denials. On October 13, 2022, the Committee held a hearing during which the parties were allowed to participate. At that hearing, Respondent admitted that the denials were not based on the merits of Petitioner’s request, but were due to the burdens held by a small and overworked county office. Respondent stated that some records could be delivered promptly while others would need to be reviewed for attorney-client privilege protection. From that admission, the Committee ordered the Respondent to disclose the immediately available and unprotected responsive records within 14 days of the order being signed. To address remaining records that might be protected under attorney-client privilege, the matter was continued to November 17, 2022. Petitioner was further ordered to deliver a statement of facts prior to the November hearing.
The Committee held the continued hearing on November 17, 2022. However, shortly before the hearing commenced, Respondent delivered the requested records to Petitioner, purportedly in full and without asserting attorney-client privilege over any of the responsive records. Accordingly, the Committee issues this Order.
STATEMENT OF REASONS FOR DECISION
This Committee is charged to hear appeals arising from determinations of access to requested records. Utah Code § 63G-2-502(1)(a). However, there are times when the parties either settle their contention over the records, or the governmental entity otherwise chooses to deliver the records before the appeal is adjudicated. In those instances, the petitioner voluntarily determines that the relief sought from this Committee is no longer needed. If this Committee can no longer consider the parties’ contentions on their merits because of a settlement or full deliverance of the records, then the case is moot. See Black v. Alpha Financial Corp., 656 P.2d 409, 410-411 (Utah 1982) (holding the case was moot when buyer paid the sellers the remaining balance of purchase price and received a conveyance of the property).
Here, in the hour before their appeal hearing, Respondent delivered a file to Petitioner alleged to contain all remaining responsive records from her original GRAMA request. The email delivering the file informed Petitioner that no records were withheld under attorney-client privilege protections. Seemingly seeing no need to attend the hearing after delivering the outstanding records, Respondent failed to attend the hearing. Petitioner told this Committee that although she received the records only an hour ago and has not carefully examined all records within the file, she did open it and upon review, the records did appear to satisfy her GRAMA request.
ORDER
THEREFORE, because Petitioner represented to the Committee that Respondent had satisfied her GRAMA request, there is no appeal for this Committee to hear. This matter is deemed moot by the voluntary actions of the parties and is DISMISSED.
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).
Entered this 29 day of November 2022
BY THE STATE RECORDS COMMITTEE
_________________________________________
NANCY R. DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, Petitioner, v.
DEPARTMENT OF NATURAL RESOURCES, Respondent.
DECISION AND ORDER
Case No. 22-32
By this appeal, Petitioner, Eric Peterson, a reporter with the Utah Investigative Journalism Project, seeks access to records held by Respondent, the Department of Natural Resources (“DNR”).
FACTS
On December 14, 2020, Mr. Peterson made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Peterson requested access to a DNR investigative report from a 2018 hunt. Respondent denied the request stating that it should remain classified as protected pursuant to Utah Code §63G-2-305(10)(a) and (c) because the release of the requested records could be expected to reasonably interfere with an ongoing criminal investigation and enforcement proceedings.
Mr. Peterson filed an appeal with the State Records Committee (“Committee”). On August 18, 2022, 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. The Committee viewed records in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Committee agrees that the records were properly classified as “protected,” pursuant to Utah Code Annotated § 63G-2-305(10)(a) and (c). Specifically, though the Committee finds that all of the subsections of Section (10) could be applicable, the Committee is most persuaded that subsection (c) justifies the classification of the record because the record is the subject of a pending criminal case.
2. The Committee also weighed whether there was a public interest in the release of the records. Utah Code Annotated §63G-2-406(1) says:
A record that is classified as protected under Subsection 63G-2-305(10), (17), (18), (23), (24), or (33) may be ordered to be disclosed under the provisions of Subsection 63G-2-401(6), 63G-2-403(11)(b), or 63G-2-404(7)(a) only if the person or party seeking disclosure of the record has established, by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.
The Committee finds that Petitioner did not establish, by a preponderance of the evidence, that there is a public interest in these records that is equal to or greater than the interest in maintaining the classification.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is hereby DENIED.
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).
Entered this 29 day of August. 2022.
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DANIEL HERRERA, Petitioner, v.
DEPARTMENT OF CORRECTIONS, Respondent,
DECISION AND ORDER
Case No. 23-04
By this appeal, Daniel Herrera (“Petitioner”), requests records allegedly held by the Department of Corrections (“Respondent”).
FACTS
Petitioner is currently an inmate at the Central Utah Correctional Facility. Pursuant to the Government Records Access and Management Act (“GRAMA”) he has recently made multiple requests to the Respondent for certain records. Those requests are summarized as follows:
1. April 21, 2022: Petitioner submitted a request for all lab tests results for certain medical tests he had performed on May 8, 2018 (“Lab Test Records”).
2. April 21, 2022: Petitioner submitted a request for (1) a certified record showing the diagnosis he received from APRN Jordan Thomas; and (2) a copy of the signed form granting authorization to Mr. Thomas to disclose the diagnosis to third parties (“Diagnostic Records”).
3. June 30, 2022: Petitioner submitted multiple requests as outlined:
a. “O-track notes regarding cell searches while housed at the Oq 3 Facility, May 21, 2018 – July 11, 2018.”
b. “O-track notes filed by case manager, John Hansen, regarding his involvement with illegal activity, (while housed in Oq3 Facility, section 3, cell #4, communication with me).”
c. “Communication records between the Utah Department of Corrections and Box Elder County Attorney’s Office, . . . regarding my unlawful imprisonment/illegal activity between May 8, 2018, - June 25, 2022.”
d. “O-track notes while I was housed in Wasatch Building, D-block, between October 2, 2019 – October 4, 2019 (OMR).”
e. “Letter addressed to me by property official, C. Trujillo, March 26, 2020.”
f. “Memorandums, copy of case code 76-5-205.5 and name of the individual sending me a message: “I [heart] you!” Dates March 21, 2019, December 30, 2019, December 1, 2020, December 3, 2021, December 6, 2021, and April 16, 2022. Contract Attorney’s Office, . . . issued these documents/letter to me.”
g. “Name of the Lone Peak Perimeter, Corrections Official, September 6, 2018 @ approx. 2:00pm – 3:30pm (Harassment).”
h. “A copy of medical request forms regarding my eyes, between May 21, 2018 – July 11, 2018. (While housed in Oq 3 Facility).”
i. “All records, name of all corrections officials, records of communication with outside government officials involved with illegal activity. Illegally installing laser surveillance cameras in my eyes while unconscious.”
(Collectively, these will be referred to as the “June 30th Requests.”)
In response, the Respondent replied accordingly:
1. One record was provided for the Lab Test Records request.
2. The Diagnostic Records request was denied due to the records being classified as “controlled” under Utah Code § 63G-2-304(1)-(3) and the Petitioner not satisfying the requirements of Section 63G-2-202(2) to warrant their release. Further, the Respondent stated that the consent form Petitioner requested is “not a valid form and nothing like that is used in our facilities.”
3. The June 30th Requests were generally denied due to Petitioner having already been allotted five GRAMA requests in the calendar year. Under Utah Code § 63G-2-201(10), a governmental entity is not obligated to provide a record in response to a GRAMA request when the request is submitted by an individual confined to a correctional facility and who has already made five record requests during the calendar year.
Petitioner appealed the merits of the appeals to the Respondent’s chief administrative officer (“CAO). The CAO upheld the Respondent’s determinations under the following reasons.
1. The Lab Test Records were produced and delivered. Any additional requests for the records were denied as a duplicate response.
2. The “controlled” classification of the Diagnostic Records was correct and there is no consent form in existence.
3. Due to Petitioner already making five GRAMA requests during the year, the June 30th Requests do not need to be provided under Section 201(10).
Petitioner appealed to the State Records Committee (“SRC”), arguing that the CAO’s decisions were in error. During the pendency of his appeal, the Respondent made certain efforts to resolve and satisfy Petitioner. Those efforts are as follows:
1. Lab Test Records: the Respondent provided the record again.
2. Diagnostic Records: the Respondent provided mental health notes made by APRN Jordan Thomas on December 16, 2020, as well as other notes made. The Respondent also provided two clinical services releases signed by Petitioner for the Utah State Office of Rehabilitation. The Respondent claims these releases are the only documents remotely comparable to the consent forms Petitioner described in his request.
3. June 30th Requests: The Respondent affirms its CAO’s decision, but because this appeal occurs in a new calendar year, as well as the fact that Petitioner is being released this month, the Respondent has provided Petitioner with 50+ records responsive to 7 of the requests. The Respondent maintains that, at this point, whatever outstanding records remain are either classified as “controlled” under the GRAMA or are not in its possession.
On January 19, 2023, the Committee held a hearing during which the parties were allowed to participate. At the hearing, Mr. Herrera stated that he is being released from the Utah State Prison next week and is requesting a continuance of this hearing so he can hire counsel. The committee voted unanimously to continue this hearing to the next available hearing date to allow the Petitioner to retain counsel. Mr. Herrera is to contact the Committee secretary to update his new address, email, and phone number.
STATEMENT OF REASONS
At the hearing, Petitioner requested that the matter be continued to a later date. Petitioner’s reasons for the request were that he would be released from his incarceration within a few weeks, and, upon his release, he would like the opportunity to meet with and retain legal representation for this matter. The Respondent was given the opportunity to respond and had no objection. Finding no good reason to deny Petitioner’s request, this Committee grants a continuance in this matter.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby CONTINUED.
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).
Entered this 30 day of January 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, vs
UTAH DEPARTMENT OF CORRECTIONS, Respondent,
DECISION AND ORDER
Case No. 23-27
By this appeal Adam Herbets (“Petitioner”), requests records allegedly held by Utah Department of Corrections (“Respondent”).
FACTS
In November, 2022, Wasatch County Sheriff, Jared Rigby, was nominated to serve as the director of Peace Officer Standards and Training (“POST”), an elevated state position. However, shortly before his swearing-in ceremony, Petitioner aired an investigative report about Sheriff Rigby’s treatment of some police officers. From that report, the swearing-in ceremony that was scheduled in January, 2023, was delayed and a closed meeting was held to further examine and discuss Sheriff Rigby’s fitness for the position. The POST Council ultimately voted to rescind Rigby’s appointment and begin the search for a new candidate from scratch.
On February 1, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested copies of all electronic communication, including, but not limited to, emails and text messages between Wasatch County Sheriff, Jared Rigby, and Brian Nielson from June 30, 2022, through present day.
The Respondent’s Director of Administrative Services responded to Petitioner’s GRAMA request on February 8, 2023, stating that he was partially denying the request. Respondent delivering two responsive emails with email addresses redacted per §63G-2-302(2)(d), but withheld two other emails and several text messages on the grounds that their disclosure would constitute an unwarranted invasion of personal privacy. Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”),
On February 16, 2023, the CAO responded. In his denial response, the CAO stated that the records were correctly classified as “private” under Utah Code §63G-2-302(2)(d) because releasing the records would constitute an unwarranted invasion of personal privacy. Further, the CAO believed the records were also private under Subsection 302(2)(a) because the records concerned a current or former employee of, or applicant for employment with a government entity. And finally, the CAO stated that some records contained personal communications that do not satisfy the definition of “record” under the GRAMA.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On June 15, 2023, 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
We are asked to determine if the withheld records are properly classified and, if so, whether they should be disclosed.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, if a record is properly classified as either “private,” “protected,” or “controlled,” then the requester is not entitled to a copy of the record. Utah Code § 63G-2-201(5)(a). In that event, the requester may appeal and bring the matter before this Committee which has the authority to view the disputed records in camera to determine if the records are properly classified. Utah Code § 63G-2-(9)(a)(ii). If the Committee determines that the records are incorrectly classified and should be released, the Committee may order it so. On the other hand, if the Committee determines the records are properly classified, then it may weigh “the various interests and public policies pertinent to the classification and disclosure or nondisclosure” and issue its order accordingly. Utah Code § 63G-2-403(11)(b).
The Committee voted by motion to view the disputed records in camera. Upon reviewing them, the Committee finds that although the records contain some personal email addresses the records are incorrectly classified and are not subject to the protections of Subsections 302(2)(d) nor (302)(2)(a). We find that the records are public and should be disclosed to Petitioner with personal email addresses redacted.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED. The Respondent is ordered to release the requested records with only the personal email addresses of recipients redacted.
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).
Entered this 26 day of June 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COREY COLEMAN, Petitioner, vs
UINTAH COUNTY and VERNAL CITY, Respondents,
DECISION AND ORDER
Case No. 23-56
By this appeal Corey Coleman (“Petitioner”), requests records allegedly held by Uintah County and Vernal City (collectively, “Respondents”).
FACTS
In May, 2019, Respondent filed criminal charges against Petitioner. Petitioner alleges that the charges were filed with no police report and/or documented investigation. He also alleges that Respondent prosecuted him without releasing certain evidence. Nearly two years later, Petitioner filed records requests with Respondents pursuant to the Government Records Access and Management Act (“GRAMA”). On February 6, 2023, Uintah County received its request. Specifically, Petitioner’s request sought records relating to the 2019 charges filed against him, namely:
1. all text messages for Tegan Troutner (Uintah County prosecutor’s office) from September 16, 2022, through September 23, 2022;
2. a copy of the investigation report;
3. any communication regarding the case;
4. text communications from and to Tegan Troutner on September 20, 2022 through September 22, 2022;
5. any texts and emails from Cameron Beach, Tegan Troutner, Vernal City, Greg Lamb, Jaymon Thomas, ABH Law etc., from January 2019 through September 2019; and
6. an email to or from Greg Lamb containing 200 plus photos and attachments.
On February 17, 2023, Uintah County denied the GRAMA request, stating that “[i]tems 1, 3, 4, 5, and 6 are being denied as these are considered “protected” records pursuant to Utah Code Ann. §63G-2-305(18). This particular information will remain so classified at this time. For item number 2, there are no responsive records to your request."
Petitioner appealed the denial to the County’s chief administrative officer (“CAO”) on February 27, 2023. Upon review of the appeal, the CAO decided to release two redacted sets of text message correspondence. The CAO stated, “The redacted portions of the text messages are being redacted as protected records . . ., or because they are not considered records as they are personal communications not dealing with public business. . . .” The CAO then affirmed the denial for all remaining responsive records.
With respect to Vernal City, on March 3, 2023, Petitioner requested “all of Roxanne Affidavit and any emails associated with the creation of [sic] document from May, 2019.”[1] This request was denied on the basis that the records were protected under Utah Code § 63G-2-305(17) & (18). Petitioner appealed the denial to the City’s CAO who upheld the denial.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On September 21, 2023, the Committee held a hearing during which the parties were allowed to participate. At the hearing, Uintah County stated that it held confusion as to what records were actually being requested since some records had been delivered and the request seemed to have changed in its correspondence with Petitioner. To seek that clarification, the Committee directed Petitioner to respond. Petitioner stated that he was seeking all communications between Uintah County and Vernal City connected to his criminal case. Uintah County presented that it had provided some records to Petitioner.
Consequently, this appeal concerns outstanding records relating to communications between Respondents in connection to Petitioner and his criminal case. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
ISSUES FOR REVIEW
We are asked to determine whether the withheld responsive records are properly classified, and, if so, whether the law permits their disclosure.
STATEMENT OF REASONS FOR DECISION
1. The Records are Protected under GRAMA.
Utah law 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). A record is a public record unless the law expressly states otherwise. Utah Code § 63G-2-201(2). If a record is protected under Section 63G-2-305, it is not a public record. Utah Code § 63G-2-201(3)(a). Pursuant to Section 305, records that are subject to the attorney-client privilege are classified as protected under GRAMA. Utah Code 63G-2-305(17). Also, records prepared for or by an attorney, employee, or agent of a governmental entity for litigation or other judicial proceedings are also protected under GRAMA. Utah Code § 63G-2-305(18).
In determining whether a requested record is subject to attorney-client privilege, we take instruction from Southern Utah Wilderness Alliance v. Automated Geographic Reference Center, 2008 UT 88. In that case, a GRAMA request was made and the governmental entity restricted access to the records on grounds that they were protected under GRAMA due to attorney-client privilege. The Court explained “the mere existence of an attorney-client relationship does not ipso facto make all communications between them confidential” Id. ¶33 (citing Gold Standard, Inc. v. American Barrick Resources Corp. 801 P.2d 909, 911 (Utah 1990). “Thus to rely on the attorney-client privilege, a party must establish: (1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice.” Southern Utah, ¶33.
At the hearing, the Committee moved to view the requested records in camera. Upon reviewing the disputed records, we find that the records satisfied the three prongs required to invoke protection under Subsection 305(17): there was an attorney-client relationship, the communications involved the transfer of confidential information, and the purpose of the transfer for legal advice. Additionally, we find that certain documents do contain information created by an attorney amid ongoing litigation. Accordingly, we find that the records are correctly classified as protected under Subsection 63G-2-305(17)-(18).
2. The Interests Do Not Favor Disclosure
A record that is classified as protected under 305(17) requires a unique analysis to determine if the protected record may be disclosed. Pursuant to GRAMA, the protected record may be ordered to be disclosed “only if the person or party seeking disclosure of the record has established, by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1). Notably, when weighing the interests, the courts instruct us to not consider the general interests, but the particularized interests of the parties as they apply to the unique GRAMA request and circumstances before us. Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶51 (“the balancing analysis under GRAMA must be tethered to the specific interests of the parties and the particularized application of the relevant public policies at issue.”).
First, we acknowledge that the records directly concern Petitioner. The records revolve around the legal proceedings that Uintah County brought against him. Additionally, the criminal proceedings against Petitioner concluded on August 17, 2023. This evidence, of course, weighs for Petitioner as GRAMA’s protections for attorney work product and privilege are not as compelling after litigation as it was when the proceedings were ongoing. See Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶55 (“[T]he interest in protecting attorney work product is more compelling during ongoing litigation than it is years after a dispute has been resolved.”). This evidence weighs in favor of disclosure.
However, the Committee is aware that Petitioner has filed a notice to appeal his criminal case. We are also aware that there is ongoing litigation between Petitioner and Vernal City. In addition to the regular policies behind the importance of protecting attorney work product and privilege, the fact that there is still ongoing litigation, including the criminal case appeal in which the sought after records pertain. For this, we find that the preponderance of the evidence does not weigh in favor of releasing the records. Respondents have a right, and indeed an obligation, to preserve their attorneys’ work product and communications during the pendency of the legal proceedings they have ongoing against Petitioner. Because of this, we cannot pierce GRAMA’s protections and order the records’ release. Consequently, we find that Respondents have satisfied their legal duty under GRAMA with respect to the GRAMA request before us.
ORDER
In accordance with this decision, Petitioner’s appeal is hereby DENIED.
It is so ordered.
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).
Entered this 30 day of October 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
1. Roxanne Behunin is the City’s records officer whose affidavit was used in Petitioner’s criminal case.
",Denied,2023-10-30T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
IAN COOPERSTEIN, Petitioner, v.
ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 22-43
By this appeal, Ian Cooperstein (“Petitioner”), seeks access to records alleged to be held by the Utah Attorney General’s Office (“Respondent”).
FACTS
On or about February 6, 2022, Petitioner submitted to Respondent a request for the following records: “[A]ll of the communications that the office of the Attorney General had with employees at attorneys of the law firm of McConkie-Collinwood-Adams . . . from December 2019 through December 2021.” Petitioner later clarified that he was seeking only “communications related to [him] and/or [his] case that was before the Utah Labor Commission . . . [including] all communications with Assistant Attorney Generals Paul Tonks, William Evans, Chris Hill, and Stephen Geary with any and all employees of McConkie-Collinwood-Adams.”
In a response dated March 29, 2022, Petitioner was provided 51 pages of email records identified as responsive to his request. The records were classified as public but included several redactions of information classified as private under Utah Code § 63G-2-302(2)(d) on the grounds that disclosure would be a clearly unwarranted invasion of personal privacy. On March 31, 2022, Petitioner submitted an appeal to Respondent’s Chief Administrative Officer (CAO), asserting that the records received indicated the possible existence of additional records that had not been provided and challenging the basis for the redactions. On April 14, 2022, Daniel Burton, acting as Respondent’s CAO, denied Petitioner’s appeal. Mr. Burton explained that, despite further follow up, no additional records were found. Regarding the redactions, Mr. Burton affirmed the redacted information was properly classified as private under Utah Code § 63G-2-302(2)(d). Mr. Burton further determined that the redacted information was also properly classified as private under Utah Code § 63G-2-302(1)(b) and, therefore, could not be released pursuant to his weighing authority under Utah Code § 63G-2-401(6).
On May 5, 2022, Petitioner appealed Mr. Burton’s CAO decision by submitting this appeal to the Utah State Records Committee. On September 15, 2022, 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. The Committee voted to review the redacted records in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
Pursuant to Utah Code § 63G-2-302(1)(b), “records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data” is classified as private. Additionally, “other records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy” are also classified as private, pursuant to Utah Code § 63G-2-302(2)(d).
Under Utah Code § 63G-2-202(1)(a), a governmental entity is required to disclose a private record to certain individuals, such as the subject of the record. Further, Utah Code §63G-2-202(3) states if there is more than one subject of a private record, the portion of the private record that pertains to the other subject(s) is required to be segregated from the portion of the private record to which the requester is entitled.
If an individual is not entitled to access to a private record under Utah Code § 63G-2-202(1), a requester may potentially obtain access to a private record through the Committee, under Utah Code § 63G-2-202(9)(b), but only if the public interest favoring access is greater than or equal to the interest favoring restriction of access.
In this case, Mr. Cooperstein was provided records, albeit with a very small number of redactions. The information redacted from the records was properly classified as private under Utah Code §§ 63G-2-302(2)(d) and/or 63G-2-302(1)(b).
Because Mr. Cooperstein is not the subject of the redacted portions of the records and is not an individual otherwise expressly entitled to the private records under Utah Code § 63G-2-202, he may obtain access to the redacted portions pursuant to Utah Code § 63G-2-202(9)(b), but only if the public interest favoring his access is greater than or equal to the interest favoring restriction of access. However, the Committee cannot conclude that the public interest in granting Mr. Cooperstein access to the redacted portions of the records is greater than or equal to the interest favoring restricting his access to the redacted portions of the records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ian Cooperstein, is hereby DENIED.
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).
Entered this 26 day of September 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LYNN DAVID, Petitioner, v.
WASATCH COUNTY, UTAH, Respondent.
DECISION AND ORDER
Case No. 22-53
By this appeal, Lynn David (“Petitioner”), requests records allegedly held by Wasatch County, Utah (“Respondent”).
FACTS
On June 28, 2022, Petitioner submitted a request for records to Respondent pursuant to the Governmental Records Access and Management Act (“GRAMA”). The request was for any and all records related to a rock mining operation on lots 195 and 221 in Brighton Estates, Wasatch County, Utah, including information related to a complaint Petitioner lodged with Respondent in 2021 concerning the operation (“Complaint”), all documentation concerning the business license application and approval for the individual conducting the rock mining operation (“Business License”), and Petitioner’s own communications in with Wasatch County on the matter throughout 2022.
Respondent retrieved responsive records from the Wasatch County Planning Department and provided them to Petitioner. Petitioner was dissatisfied with Respondent’s response because not all the documents he had requested were provided. Petitioner contacted Respondent to inquire why certain records were not delivered. Respondent searched again and found more responsive documents within its Manager’s Office which functions as the County’s Engineering Department. Respondent delivered those documents upon their discovery.
However, Petitioner was still dissatisfied that certain documents were missing. Specifically, he believes Respondent should have records concerning the Business License, as well as records regarding the Complaint. However, Respondent maintained that after multiple searches, it had none.
Petitioner appealed to the chief administrative officer, seeking the missing records and expounding on the facts that lead him to believe Respondent should hold the records he seeks. While the chief administrative officer was able to find and provide a few straggling records after another thorough search of the County’s applicable resources, Petitioner was, in the end, informed that Respondent holds no responsive records to the Business License nor the Complaint. However, Respondent did instruct Petitioner to make a records request with the County Clerk’s Office directly as that office might likely hold those records if they exist.
Believing that Respondent (a political subdivision that oversees the Clerk’s Office) should obtain whatever records the Clerk’s Office holds, Petitioner brings this appeal to the State Records Committee (“Committee”) asking us to compel the production and disclosure of the Business License and Complaint, along with any records relating to them. The Committee held a hearing on November 17, 2022. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After carefully considering all evidence presented to the Committee, we issue the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, few remedies exist when, as happens from time to time, a governmental entity claims it doesn’t possess the requested records or that the records otherwise don’t exist. In those instances, the governmental entity cannot be expected to create a record in effort to respond to a records request under the GRAMA. Utah Code § 63G-2-201(8)(a). Also, “[n]o entity is required to go looking for records compiled by another agency or political subdivision.” Godfrey v. State, 2003 UT App 195, at 1 (citing State v. Spry, 2001 UT App 75, ¶16, 21 P.3d 675). Therefore, where a records request is denied because the entity claims the records don’t exist, the burden shifts to the requester to show on appeal that they in fact do. See Utah Administrative Code R35-2-2(2).
In this case, Petitioner has been met with Respondent’s repeated claims that it does not possess the records he seeks. However, understandably frustrating to Petitioner is the fact that with each inquiry and appeal he made, Respondent was able to find an additional responsive record that wouldn’t have been found but for his insistence. Respondent testified at the hearing that there had been employee turnover in the county offices, and that the handling of Petitioner’s request was “messy and not handled as smoothly as it should.” Appeal hearing transcript, p. 12. We understand Petitioner’s frustration with Respondent’s handling of his records requests, but where the GRAMA does not require Respondent to create a record that it doesn’t have, the burden of proof rests on Petitioner to produce evidence that Respondent does in fact hold them. Utah Code § 63G-2-201(8)(a); & See Utah Administrative Code R35-2-2(2). Petitioner has not produced such evidence. Therefore, we cannot compel Respondent to deliver records not in its possession.
ORDER
THEREFORE, for the foregoing reasons, we hereby order Petitioner’s appeal is DENIED.
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).
Entered this 29 day of November 2022
BY THE STATE RECORDS COMMITTEE
________________________________________
NANCY R. DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY TANNER on behalf of The Salt Lake Tribune, Petitioner, v.
UTAH STATE UNIVERSITY, Respondent
NOELLE CROCKETT, Intervenor
DECISION AND ORDER
Case No. 23-08
By this appeal, Courtney Tanner (“Petitioner”), requests records allegedly held by Utah State University (“Respondent”). By and through counsel, Noelle Crockett intervenes.
FACTS
On November 15, 2022, the Petitioner submitted a records request to Respondent under the Government Records Access Management Act (“GRAMA”) seeking “any emails sent by President Noelle Crockett from [ ] Nov. 10 [2022], to [ ] Nov. 15 [2022], about her possible departure or the football/athletic program at USU.”
On November 22, 2022, Respondent denied the request on the basis that personal communications prepared by an employee of a governmental entity in a personal capacity and unrelated to the public’s business are not public records under the GRAMA. From this, Respondent informed Petitioner that it did not have any responsive records.
Petitioner appealed to Respondent’s chief administrative officer (“CAO”) on November 22, 2022, clarifying that she is not requesting personal communications, but emails Ms. Cockett sent from her official Utah State University email address about her possible departure or the football/athletics program at the University. Petitioner argued that both her official University email account and the subject matter of Ms. Cockett’s job and the athletics program fit squarely under the GRAMA’s definition of what constitutes a public record. However, on December 6, 2022, the CAO denied the appeal and affirmed Respondent’s decision that relevant emails were not public records due to their personal nature.
Petitioner now appeals to the State Records Committee (“Committee”), challenging Respondent’s decision. On February 16, 2023, 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.
STATEMENT OF REASONS FOR DECISION
The issue before us is whether the emails Ms. Cockett sent from November 10, 2022, through November 15, 2022, concerning her departure from the University or the football and athletics program were a public record subject to disclosure under the GRAMA.
The GRAMA provides that “a person has the right to inspect a public record free of charge . . .” Utah Code § 63G-2-201(1)(a). Thus, for the GRAMA to apply to any records request, a governmental entity must first determine whether the records being sought are public records. Whether a record is public and subject to disclosure is a question of definition. In defining “”record,” the GRAMA makes clear what it is and what it is not. Within its definitional section, Subsection 103(22)(b) states:
(b) “Record” does not mean:
(i) A personal note or personal communication prepared or received by an employee or officer of a governmental entity;
(a) in a capacity other than the employee’s or officer’s governmental capacity; or
(b) that is unrelated to the conduct of the public’s business.”
Utah Code § 63G-2-103(22)(b)(i)(A)-(B).
Thus, if a personal communication is sent by government employee in her official capacity and concerns the public’s business, the communication would be a public record subject to disclosure under the GRAMA. However, if the communication is made either in a non-official capacity, or if it does not concern the public’s business, then the communication would not be a record subject to disclosure.
At the hearing, Respondent proffered the requested emails for the Committee’s review. Upon motion, the Committee voted to view the emails in camera to determine the issue. In a closed session, the Committee examined the emails and found them to not be sent in an official capacity, nor concern the public’s business. Accordingly, the Committee found that the emails Ms. Cockett sent from November 10, 2022, through November 15, 2022, were not public records subject to the GRAMA’s disclosure requirements.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED, as the emails sought are not records.
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).
Entered this 28 day of February 2023
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY TANNER (Salt Lake Tribune), Petitioner,
UTAH SYSTEM OF HIGHER EDUCATION (USHE), Respondent,
DECISION AND ORDER
Case No. 23-15
By this appeal, Courtney Tanner (“Petitioner”), requests records allegedly held by Utah System of Higher Education (“USHE”).
FACTS
The Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On November 22, 2022, Ms. Tanner requested “any communication between and among members of the Utah Board of Higher Education, the USHE commissioner and/or his executive team and/or [Utah State University] President Noelle Crockett about Crockett’s tenure, concerns about her administration and/or her departure as president and any agreements about what that would look like.”
In a response dated December 1, 2022, USHE stated that Petitioner’s request for “any agreement” was resolved when USHE provided the only agreement between the Board and President Crockett regarding President Crockett’s departure in Petitioners first GRAMA request. The Respondent then went on to deny the remaining requests on the grounds that the requested records were private under Utah Code § 63G-2-301(3)(d) and Board Policy R209.
On December 15, 2022, Petitioner appealed to the Respondent’s chief administrative officer (“CAO”), Commissioner, David Woolstenhulme. In her appeal, Petitioner challenged whether the requested records were correctly classified as private. Petitioner argued that the statute cited by UHSE in its initial denial is not applicable. Specifically, Petitioner argued that Subsection 301(3)(d) applied only to contracts that a governmental entity enters into. She claimed that only part of her request was for any contracts responsive to her request, and that the other half of her request was for communications about the contracts, if any.
However, Petitioner was met with another denial. The CAO conceded that Subsection 301(3)(d) did not apply to the request for communications, but stated that Subsections 302(2)(a), 305(25), and 305(28) do. Under those provisions, the CAO determined that the records were classified as private and restricted from disclosure. Further, the CAO acknowledged his weighing authority under Utah Code § 63G-2-401(6) which allows him to order the records be disclosed if after considering the various interests relative to disclosing the records or keeping them restricted he determines that the interests weigh in favor of disclosure. However, even upon weighing the competing interests, the CAO determined that disclosure was not warranted.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On April 20, 2023, 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 CAO properly classified the records as private, and if so, whether the interests favoring disclosure outweighs those favoring restriction.
STATEMENT OF REASONS FOR DECISION
At the hearing, the Committee heard arguments from the parties and voted to view the disputed records in camera. Shortly after closing the public portion of the hearing for its in camera review, the Committee reconvened the hearing. Due to the important issues that must be considered and the volume of records to review, the Committee moved to continue the hearing to the next available regularly scheduled meeting to give it time to complete its review of the records.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby CONTINUED
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).
Entered this 1st day of May 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARK TRACY, Petitioner, v.
EMIGRATION IMPROVEMENT DISTRICT, Respondent,
DECISION AND ORDER
Case No. 23-02
By this appeal, Mark Tracy (“Petitioner”), requests records allegedly held by the Emigration Improvement District (“Respondent”).
FACTS
On June 6, 2022, Petitioner submitted a records request to the Respondent under the
Government Records Access and Management Act (“GRAMA”) seeking “all legal invoices and evidence of payment submitted to Emigration Improvement District from the Salt Lake City law firm Chone Kinghorn P.C., Parson Kinghorn and Harris P.C., and Gerald R. Kinghorn P.C. since August 1, 1998.”
On June 10, 2022, the Respondent responded to the request, stating that significant portions of the documented requested in the GRAMA request are classified as protected under the following subsections of Utah Code § 63G-2-305:
(17): records are subject to attorney client privilege;
(18): records prepared for or by and attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding; and
(23): records concerning a governmental entity’s strategy about: (b) imminent or pending litigation.
Because of these protections, the Respondent anticipated that searching, reviewing the records, and making possible redactions of protected information would take approximately 10-15 hours to complete. The Respondent further informed Petitioner that the majority of the requested records were in the possession of its legal counsel who would need to compile and redact the records he held. The Respondent imposed a fee of $2,500 - $3,500 to fulfill the request and required a deposit of $2,500 to commence the process.
Petitioner appealed to Respondent’s chief administrative officer (“CAO”) on June 13, 2022, arguing that the statutory protections cited by the Respondent don’t apply when legal representation is secured in furtherance of present, continued illegality. Petitioner also argued that Section 305(18) does not apply because he is not requesting records being prepared for present or future litigation, only the invoices for past legal services. And, finally, he argued that the requested records do not reveal any litigation strategy and, therefore, Section 305(23)(b) does not apply. The CAO failed to respond to Petitioner’s appeal, which, under the GRAMA is treated as a denial. Utah Code § 63G-2-401(5)(b).
The Petitioner now appeals to the State Records Committee (“Committee”), challenging the Respondent’s decision. On January 19, 2023, 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.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, under certain conditions, a governmental entity may charge a reasonable fee to cover the entity’s “actual cost” of providing a record. Utah Code § 63G-2-203(1)(a). The GRAMA provides that “actual costs” may include (1) the cost of staff time for compiling the record to meet the person’s request; and (2) the cost of staff time for search, retrieval, and other administrative costs. Utah Code § 63G-2-203(2)(a)(i)-(ii). However, when assessing a fee, the costs for the efforts listed in Section 203(a) may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the efforts. Utah Code § 63G-2-203(2)(b). If the fees are expected to exceed $50, then the governmental entity may require payment of future estimated fees before beginning the process. Utah Code § 63G-2-203(8)(a)(i).
In this case, the Respondent’s legal counsel holds the bulk of the requested records and will have to search his and his firm’s records to retrieve them. Additionally, the Respondent’s counsel will have to take the time to review the records and redact any information and notations that are protected by attorney-client privilege; were made or prepared in anticipation of litigation, quasi-judicial, or administrative proceedings; and concern the Respondent’s strategy relating to pending or imminent litigation. While the Respondent may rely on its records officer or other personnel to fulfill the request for the records it holds in its possession, its legal counsel must fulfill the request for the records in storage. As the estimated timeframe for fulfilling this request is 10-15 hours, a $2,500 - $3,500 estimate for the work equates to approximately $233 - $250 per hour. We find this to be a reasonable fee in conjunction with an attorney’s time and billing rate, and within the allowances outlined in Section 63G-2-203.
ORDER
THEREFORE, this Committee ORDERS as follows:
1. The $2,500 - $3,500 fee and $2,500 deposit required by the Respondent to fulfill the request are reasonable. Petitioner’s appeal is denied.
2. Petitioner shall pay a $2,500 deposit for the Respondent to commence filling the request.
3. Upon receiving the records, Petitioner will have 30 calendar days to review the records and file a request with this Committee to reopen this appeal for the sole purpose of reviewing the propriety of the Respondent’s redactions.
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).
Entered this 30 day of January 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KEVIN WALKER, Petitioner, vs
UTAH COUNTY, Respondent,
DECISION AND ORDER
Case No. 23-29
By this appeal Kevin Walker (“Petitioner”), requests records allegedly held by Utah County (“Respondent”).
FACTS
On January 19, 2022, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested the “anonymized electronic copy of each individual cast ballot and/or cast vote record(s) or equivalent information maintained by Utah County for the City of Moab general election held on Nov. 2, 2021.” The date range of requested records was November 1, 2021 through January 18, 2022.
Respondent denied the request, claiming that responsive records are not public under Utah Code §§ 63G-2-201(3)(b) and 20A-4-202(2)-(3). Petitioner appealed to Respondent’s chief administrative officer (“CAO”) arguing that the statutes do not restrict access to the specific records he requested and that the denial was therefore in error. However, the CAO did not respond to the appeal which constituted a formal denial under Utah Code § 63G-2-401(5)(b)(i) (“[i]f the chief administrative officer fails to make a decision on an appeal of an access denial within the time specified in Subsection (5)(a), the failure is the equivalent of a decision affirming the access denial”).
Petitioner has now appealed to the State Records Committee (“Committee”), challenging Respondent’s denial. Prior to the hearing, Respondent filed a motion to dismiss the case, or, in the alternative, a request to continue. Respondent argues that because of a pending appeal before the Utah Court of Appeals – Orten and Anderson v. Utah County, Utah County Board of Commissioners, et.al., case no. 20220782-CA – concerns a GRAMA request nearly identical to the one in this case, this appeal must be dismissed, or, at the very least, continued until the Orten and Anderson is fully adjudicated.
On June 15, 2023, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the motion. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
ISSUES FOR REVIEW
We must determine whether Respondent’s motion to dismiss, or, in the alternative, request to continue has merit under the pending appeal of Orten and Anderson, case no. 20220782-CA. If we find that Respondent’s motion has no merit, we are then to decide whether Petitioner’s GRAMA request was properly denied under Utah Code §§ 63G-2-201(3)(b) and 20A-4-202(2)-(3).
STATEMENT OF REASONS FOR DECISION
In Orten, the requesters filed a GRAMA request to various counties asking for a host of records related to the 2020 and November 2021 elections. The counties denied the request on the grounds that the election records were not public records because they fell within an express exemption contained within the GRAMA; that exemption being that “records to which access is restricted pursuant to . . . another state statute” are not public records. Utah Code § 63G-2-201(3)(b). The counties argued that the election code – Utah Code § 20A-1 et seq. – controls the records and restricts their disclosure.
The requesters eventually appealed to district court where Judge Pullan ruled in favor of the counties. Judge Pullan found that “[t]he Election Code comprehensively governs access to and the retention of documents related to an election.” Order Granting Lieutenant Governor’s Motion to Dismiss with Prejudice, Orten and Anderson, case no. 22040041, at 6 (filed Aug. 8, 2022) (J. Pullan). Judge Pullan also found that the Election Code’s governance of election related materials is quite broad and sweeping: “These broadly defined categories of election-related materials – when combined with the equally broad definition of ballot and election returns – sweep within their scope caste vote records, project backup databases, and tabular tapes Plaintiffs seek by way of a GRAMA request.” Id. at 8. Accordingly, Judge Pullan held that “because access to these materials is governed by the Election Code, the materials are not public records obtainable via a GRAMA request. For these reasons, the Court concludes that the balance of Plaintiffs’ GRAMA requests were properly denied.” Id. at 8-9.
Respondent asserts that Judge Pullan’s order compels this Committee to dismiss Petitioner’s appeal. However, we don’t agree. Generally, a district court’s interpretation of a statute is not binding in the way an appellate court’s decision is. Calsert v. Estate of Flores, 2020 UT App 102, ¶ 16. This is because district court judges do not have the authority to overrule other district court judges of equal authority. Richardson v. Grand Central Corp., 572 P.2d 938, 946 (Utah 1977). And with eight judicial districts in Utah, each with no authority to overrule each other, the potential exists for numerous distinct and potentially conflicting district court decisions on a particular legal or factual question. Because of this, how can this Committee (or any administrative body) successfully issue decisions that comply with the law in such a landscape? Accordingly, we do not view Judge Pullen’s decision as binding on this Committee and we see no reason why this case must be dismissed due to his decision.
With that said, the petitioners in Orten have appealed Judge Pullan’s decision to the Utah Court of Appeals. There, the Court of Appeals will render an interpretation of law that will bind this Committee as it applies to this case and others concerning election-related records. Therefore, because of Orten’s pending appeal, we believe hearing this appeal at this time is preemptive. We therefore continue this appeal until after Orten has finalized its appeals and the case is resolved.
ORDER
THEREFORE, for the foregoing reasons, this appeal is CONTINUED until Orten and Anderson v. Utah County, Utah County Board of County Commissioners, et. a. case no. 20220782-CA is resolved.
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).
Entered this 26 day of June 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EMILY ANDERSON STERN (SALT LAKE TRIBUNE), Petitioner, vs
UNIVERSITY OF UTAH, Respondent
DECISION AND ORDER
Case No. 23-51
By this appeal Luis Sanchez (“Petitioner”), requests a fee waiver for requested records held by Salt Lake City Police Department (“Respondent”).
FACTS
On January 31, 2023, Petitioner filed a records request and fee waiver with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the following records:
1. all reports of alleged sexual harassment or misconduct experienced by students in connection with the internships through the Hinckley Institute of Politics and given to the Respondent or its employees from Jan. 1, 2013, to the present;
2. documentation of any actions taken by the Respondent after receiving such information, including initial reports by the complainant, internal documents reflecting the handling of the complaint, communications between the Respondent’s employees and the entity employing an intern involved in the complaint, draft and final versions of investigative reports made by investigators who looked into the complaints, source documents or notes included in investigative reports and files, and documentation of actions taken by the Respondent following any of the foregoing.
On April 5, 2023, the Respondent denied the request for multiple reasons. The Respondent claimed that it was prohibited from releasing the requested records under the Family Educational Rights and Privacy Act (“FERPA”) because the records were “education records” under that law. Additionally, the Respondent stated that even if the records could be disclosed under FERPA, the records were still protected under numerous GRAMA provisions that included: 63G-2-302(2)(d) (releasing the records would result in an unwarranted invasion of privacy); 63G-2-305(10)(a)-(b) (releasing the records could reasonably interfere with investigations or disciplinary or enforcement proceedings); 63G-2-305(11) (releasing the records would jeopardize an individual’s safety); and 63G-2-302(2)(a) (employment records not classified as public under 63G-2-301(2)(b) or (3)(o)).
Dissatisfied with the response, Petitioner appealed the denial to the Respondent’s chief administrative officer (“CAO”). Petitioner argued each classification the Respondent stated in its response and went on to argue that the public interest favoring access to the requested records is greater than or equal to any interest favoring restriction of access, and because of that, the records should be disclosed. However, on May 9, 2023, the Respondent’s CAO upheld the Respondent’s decision to deny the request and affirmed the reasoning and classifications the Respondent set forth in its denial letter.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On September 21, 2023, 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
We must determine whether the requested records may be disclosed under FERPA.
STATEMENT OF REASONS FOR DECISION
Our public records laws provide 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, this right is without limitations. When it comes to education records, “[t]he disclosure of an education record as defined in [FERPA], 34 C.F.R. Part 99, that is controlled or maintained by a governmental entity shall be governed by [FERPA], 34 C.F.R. Part 99.” Utah Code § 63G-2-107(2)(c).
FERPA is a federal law that restricts funding to educational institutions which have “a policy or practice of permitting the release of education records . . . of students without the written consent of their parents. . . . 20 U.S.C. § 1232g(b)(1). For students who are 18 years old or older, consent is required from the student. 20 U.S.C. § 1232g(d). Under FERPA, “education record” is defined as those records that are (1) directly related to a student; and (2) maintained by an educational agency or institution. 34 C.F.R. § 99.3. Thus, without a proper signed consent, only a parent and the student may inspect the student’s education records under FERPA. 34 C.F.R. §§ 99.10; 99.30.
At the hearing, the Committee moved to view the disputed records in camera pursuant to Utah Code § 63G-2-403(9)(a) (granting Committee authority to review disputed records in camera). Upon doing so, the Committee determined that the records were education records as FERPA defines that term. The records directly relate to certain respective students. Consequently, we find that FERPA governs these records and their disclosure, and absent the proper signed consent from students (and parents if applicable), the records cannot be disclosed See Utah Code § 63G-2-107(2)(c). [1]
ORDER
THEREFORE, in accordance with this decision, Petitioner’s appeal is hereby DENIED.
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).
Entered this 2nd day of October 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
1. We note that Petitioner argues the records can be released in redacted form in accordance with our recent decision in Kummer v. Sevier County School District, Utah State Records Committee, Decision and Order, case no. 23-36 (entered Aug. 28, 2023). However, that case is distinguishable from this one. There, it was not the media or other third-party requesting the education record; it was the parents of the daughter to which the record related. Therefore, consent for the release was satisfied.
",Denied,2023-10-02T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ALISHA ELLINGTON, Petitioner, v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent,
DECISION AND ORDER
Case No. 24-04
By this appeal, Alisha Ellington (“Petitioner”), requests records allegedly held by Department of Health and Human Services (“DHHS”) (“Respondent”).
FACTS
Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On September 5, 2023, Ms. Ellington requested the following records from November 2022 to the date of submission:
1. All correspondence including work IM chats between Jenni Wagner, Kelly Oakeson, Andreas Rohwasser, Denice Graham (Division of Human Resource Management (“DHRM”) employee), Jennifer (DHRM employee) pertaining to me, my employment, my FMLA, and my ADA Accommodation request.
2. All correspondence between Denice Graham, Andreas Rohwasser, and the Attorney General’s Office (“AGO”) pertaining to my employment, FMLA, and ADA Accommodation request.
On September 20, 2023, Department GRAMA Coordinator Dianna Sanchez issued a letter explaining extraordinary circumstances and that she estimated a response by October 18, 2023. The extraordinary circumstances were that the Department was processing a large number of records requests and the decision to release records involves legal issues that require the Department to seek legal counsel for the analysis of statutes, rules, ordinances, regulations, or case law. That same day, Petitioner appealed the extraordinary circumstances letter to the designee of the Department’s chief administrative officer (“CAO”), Administrative Law Judge (“ALJ”) Eric Stott. Petitioner voiced her concerns that the State is abusing GRAMA to cover up retaliation in her current job.
September 26, 2023, ALJ Stott responded, upholding the decision that extraordinary circumstances exist. He found “the number of GRAMA requests [the Department] is processing is large enough to warrant a longer response time. Moreover, [the Department] has to wait for another agency to search, acquire, and produce records that are responsive to the request.” ALJ Stott explained that the Division of Technology Services (“DTS”) provided the records on September 22, 2023, and at least one Department employee worked additional unscheduled hours to begin processing the documents. Those documents still needed to undergo legal review. The estimate had moved up to October 10, 2023, and given the circumstances, ALJ Stott said that date was reasonable.
The Department was notified on September 28, 2023, that Petitioner was appealing ALJ Stott’s extraordinary circumstances decision, and that a hearing before the State Records Committee was scheduled. On October 10, 2023, Ms. Sanchez provided the Petitioner with responsive public records and information, and private records and information for which Petitioner was the subject. Many of the delivered records contained redactions, some were substantial. Ms. Sanchez explained the redaction as follows: “private personal information for individuals other than Petitioner was redacted under Sections 63G-2-302(2)(a) and (2)(d); protected investigative records were redacted under Section 63G-2-305(10(a); Zoom links, meeting ID’s, passcodes, and other information that, if disclosed, could jeopardize the security of governmental recordkeeping systems were redacted under Section 63G-2-305(12); attorney-client privileged information was redacted under Section 63G-2-305(17); work product was redacted under Section 63G-2-305(18); and other drafts and draft language were redacted under Section 63G-2-305(22).”
On October 11, 2023, Petitioner submitted an appeal request directly to the SRC, instead of filing an appeal with the CAO as instructed in the GRAMA response and required by statue. Ms. Shaw, SRC’s secretary, emailed Petitioner and explained that her appeal before the Committee regarded the claim of extraordinary circumstances and if she wanted to appeal the redactions, she would need to appeal to the CAO first. The Petitioner filed an appeal with ALJ Stott on October 13, 2023, saying that the records were not complete, did not include external communications, were improperly redacted, and were doctored and fabricated.
Petitioner has now appealed to the State Records Committee (“Committee”), On January 4, 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
We must determine whether the redacted information was correctly classified and withheld.
STATEMENT OF REASONS FOR DECISION
At the hearing, the Committee moved to view the records in camera pursuant to Utah Code § 63G-2-403(9)(a). Upon review, the Committee determined that due to the extent of the redactions, more time is needed to conduct its review.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby continued to January 18, 2023.
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).
Entered this 16 day of January 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JENNIFER LEWIS, Petitioner, vs
AUSTIN COMMUNITY SPECIAL SERVICE DISTRICT, Respondent,
DECISION AND ORDER
Case No. 23-17
By this appeal, Jennifer Lewis (“Petitioner”), requests records allegedly held by Austin Community Special Service District (“Respondent”).
FACTS
On October 15, 2021, Petitioner submitted a request (the “2021 Request”) to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). For purposes of this appeal, the specific records are not important. What is important is that in her request, Petitioner requested to be notified if she would be charged more than $100 for the records. When processing the request, the Respondent didn’t have the requested records in its possession and had to request them from its engineering firm, Jones and DeMille Engineering. Upon Jones and DeMille producing the records, the firm charged the Respondent $581.20 for the administrative task of retrieving, copying, and delivering the records. When the Respondent received the records and the invoice from the firm, it passed the cost along to Petitioner as a condition of delivering her the records. Petitioner refused to pay the fee and later withdrew her GRAMA request.
Nearly a year later, on October 19, 2022 (the “2022 Request”), Petitioner submitted another GRAMA request seeking the following records:
(1) a copy of the digital recording of the regular meeting of the Administrative Control Board of the Austin Community Special Service District held on Tuesday, October 18, 2022, at 35 West Main, Elsinore, UT, at the hour of 6:30 pm;
(2) a copy of the budget hearing minutes from June 29, 2022, as approved by the board and referenced as “agenda item (1)” of the regular meeting of the Administrative Control Board of the Austin Community Special Service District on October 18, 2022;
(3) a copy of any resolutions adopted by the Administrative Control Board of the Austin Community Special Service District on October 18, 2022;
(4) any application for water service that would have been executed by Dale Strickland and submitted to the Administrative Control Board of the Austin Community Special Service District for consideration of water service as per the statements of Chairman Outzen regarding any Dale Strickland water service matters brought up during the regular meeting of the Administrative Control Board of the Austin Community Special Service District on October 18, 2022;
(5) a copy of any Administrative Control Board agenda where any Dale Strickland water service matter was brought before the Administrative Control Board, and a copy of any meeting minutes whereby the board heard any Dale Strickland water service matter and authorized any water service to Dale Strickland by any vote of the board;
(6) the date on which the water service to Dale Strickland began and the address where the water service to Dale Strickland had been established, as per Chairman Outzen’s statements during the regular meeting of the Administrative Control Board of the Austin Community Special Service District on October 18, 2022;
(7) a copy of all:
(a) contractor invoices authorized to be paid by the Board regarding any water hookup to Dale Strickland;
(b) Materialmen’s invoices authorized to be paid by the Board regarding any water hookup to Dale Strickland; and
(c) any other invoices received that may or may not have been authorized to be paid by the Board regarding any hookup to Dale Strickland; and
(8) a listing of all revenues received by the Administrative Control Board of the Austin Community Special Service District regarding any water service to Dale Strickland as such matters were brought up by Chairman Outzen during the regular meeting of the Administrative Control Board of the Austin Community Special Service District on October 18, 2022, such as;
(a) hookup fees collected by the board from Dale Strickland;
(b) impact fees collected by the board from Dale Strickland;
(c) water shares surrendered by Dale Strickland in lieu of fees collected; and
(d) any reimbursements made by Dale Strickland to the Board in regard to his newly established water service.
In response, the Respondent denied Petitioner’s GRAMA request on the basis that the past-owing $581.20 for the 2021 Request was still outstanding and must be paid before it would fulfill a new request.
Petitioner appealed to the Respondent’s chief administrative officer (“CAO”) arguing that she withdrew her 2021 Request and that she should not have incurred the cost from Jones and DeMille. However, the CAO upheld the Respondent’s decision and denied the appeal.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On April 20, 2023, 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 primary issue before us is that of a fee waiver for the 2022 Request. That is, may the $581.20 fee the Respondent charged Petitioner when responding to the 2021 Request be waived for fulfilling the 2022 Request?
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, under certain conditions, a governmental entity may charge a reasonable fee to cover the entity’s “actual cost” of providing a record. Utah Code § 63G-2-203(1)(a). In allowing an entity to charge a fee, the GRAMA provides that “actual costs” may include, among other things, the cost of staff time for search, retrieval, and other administrative costs. Utah Code § 63G-2-203(2)(a)(i)-(ii). Further, a governmental entity may require payment of past fees before beginning to process a request if the fees are expected to exceed $50 or the requester has not paid fees from previous requests. Utah Code § 63G-2-203(8)(a)(i)-(ii). However, the statute also encourages the governmental entity to fulfill the request without charge if it determines that releasing the records primarily benefits the public rather than the requester, the requester is the subject of the record, or the requester’s legal rights are directly implicated by the records and the requester is impecunious. Utah Code § 63G-2-203(4)(a)-(c).
When assessing fee waiver denials, our Utah Supreme Court has given clear guidance that the main question for review is whether the governmental entity’s decision to deny the fee waiver request was reasonable. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52, 435 P.3d 179. To make that determination, we must “view the decision in the context of the governing statute,” which means “assessing whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver.” Id. at ¶53 (citing Utah Code § 63G-2-203(4)). Additionally, we are to consider any other evidence we find “relevant to the reasonableness of the denial.” Id. at ¶54.
In this review, we find it significant that the Respondent did not possess the records responsive to the 2021 request. Because of this, it had to obtain copies of the records from Jones and DeMille which charged the Respondent the $581.20 fee for its own administrative burdens in producing the records. As an initial matter, we find it alarming that the Respondent didn’t regularly maintain the records behind the 2021 Request as the law requires. The GRAMA is clear that unless a political subdivision has developed its own records retention schedule, its records must be retained in accordance with an approved retention schedule. Utah Code § 63G-2-604(1)(a)-(c). For the Respondent to not retain and possess records, including those pertaining to government contracts and federal grants – those relevant to the 2021 Request, the Respondent shows a complete disregard for Utah’s open records laws and immediately calls into question the validity of its arguments in this case.
It is true that the GRAMA allows a governmental entity to require payment of past fees before fulfilling a record request that would exceed $50; however, the fees a requester owes must in fact be legitimate fees under the statute. Section 203 allows a governmental entity to charge a reasonable fee to cover its actual cost of providing a record. Though the record is unclear as to the Respondent’s legal basis for passing the fee along to Petitioner for her 2021 Request, the Respondent seemingly relies on Subsection 203(2)(a)(ii) to justify the decision to do so. In pertinent part, “actual cost” is defined as the cost of staff time to retrieve the record, as well as other administrative costs for complying with the request. Utah Code § 63G-2-203(2)(a)(ii). Then, upon receiving her 2022 Request, it relied on Subsection 203(8)(a)(ii) to justify not fulfilling the request because of the still-owing fee. We find that these reliances are in error.
For two reasons we have trouble accepting that Subsection 203(2)(a)(ii) allows the Respondent to pass along to Petitioner the charge it incurred for retrieving the records when it doesn’t retain the records as it should and must retrieve the records from a third party. First, of course, is the fact that the Respondent should be complying with the law and retaining the records Petitioner requested. We can’t accept the notion that the Respondent may run afoul of record retention laws and then pass along the cost for doing so on to a requester. Second, we don’t read the text of the statute as broadly as the Respondent. Section 203 and its provisions apply to the governmental entity’s actual efforts to retrieve records that are in its own possession.
Additionally, we find it significant that Petitioner’s 2021 Request expressly instructed the Respondent to contact her if the cost of providing the records would exceed $100. This request went ignored and the $581.20 fee charged to Petitioner was used as the lynchpin to hold together the denial for the 2022 Request. The mere fact that Petitioner wanted to be contacted if the fees would exceed $100 put the Respondent on notice that she may desire to withdraw her request if the fees accrued too much. Therefore, we conclude that the $581.20 charged for the 2021 Request was not a fee as contemplated by the GRAMA. It was a cost the Respondent incurred for having Jones and DeMille perform its duties under the GRAMA – a cost that Section 203 does not allow to be passed on to Petitioner.
Finally, if the $581.20 is not a fee authorized by Section 203, then it follows that Subsection 203(8) cannot apply. Thus, because the $581.20 cannot be a past fee, the Respondent cannot require that Petitioner pay it before processing any of her record requests. The Respondent is solely and wholly responsible for the $581.20.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED. The Respondent shall not require Petitioner to pay the $581.20 fee it incurred from Jones and DeMille, and the 2022 Request must be fulfilled without the requirement to pay the $581.20.
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).
Entered this 1st day of May 2023
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CARL FLEMING, Petitioner, vs
UTAH DEPARTMENT OF CORRECTIONS, Respondent,
DECISION AND ORDER
Case No. 23-30
By this appeal Carl Fleming, an inmate currently confined in the Utah State Prison, (“Petitioner”), requests records allegedly held by Utah Department of Corrections (“UDC”) (“Respondent”).
FACTS
On November 4, 2022, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested the “inmate log for SMU suicide watch cells,” including “how many inmates were placed in cell #3” from August 27, 2022 through September 14, 2022. UDC denied the request because the information contained in the records was classified as “private” under Utah Code §63G-2-302(2)(d). UDC explained to Mr. Fleming that “these logs are private to the prisoners who were in those cells, a requested record must be specific to you and name you in that record.” With regards to how many inmates were placed in cell #3, that request was denied because this request was not a records request, it was “just a number that was being sought.”
Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”) on December 17, 2022. In a letter dated January 26, 2023, CAO, James Hudspeth, upheld the denial for the reasons above and added:
(1) Utah Code §63G-2-201(8) states in response to a records request, “a governmental entity is not required to create a record; compile, format, manipulate, package, summarize, or tailor information.” Because the information requested is not contained in a centralized record, UDC would be required to create a record to respond to the request.
(2) The records requested are classified as “protected” under Utah Code §63G-2-305(11) & (13) because they contain information that would jeopardize the life and safety of an individual or the security or safety of the correctional facility.
(3) Per Utah Code §63G-2-201(10), UDC is not required to respond to or provide a record to an inmate if the requested records do not contain a specific reference to the inmate.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On July 20, 2023, 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
Whether the inmate log is properly classified and should be disclosed to Petitioner in light of him currently being confined to a correctional facility.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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 private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and 63G-2-201(5). But even if a record is public and may normally be disclosed, a governmental entity is not required to respond to or provide a record if the requester is an individual confined in jail or correctional facility, except for the first five record requests submitted in a calendar year for a record that contains a specific reference to the requester. Utah Code § 63G-2-201(9).
At the hearing, the Respondent testified that it had some confusion about which exact records were requested since it doesn’t keep or maintain an “inmate log.” Through the Committee’s questioning of Petitioner, it became settled that he wanted what the Respondent labels an “infirmary log” – a record of all the prisoners who were confined to the specific cell that Petitioner identified. Additionally, Petitioner stated in the hearing that he seeks “footage of the cell” to show that the cell he is confined in is highly unsanitary; he also seeks a response to the grievance he submitted about the unsanitary conditions of the cell; as well as any cleaning records for the cell.
With that clarity, the Respondent testified that the infirmary log in whole could not be disclosed because the log contains information about other individuals that is not only private but can jeopardize the safety of those individuals if the information was released. Such records are classified as private under Utah Code § 63G-2-302(2)(d) and protected under Utah Code §§ 63G-2-305(11) and (13). However, during its testimony, the Respondent acknowledged that within the infirmary log, there is a responsive record referencing Petitioner that could be disclosed with some redactions.
Utah Code § 63G-2-302(2)(d) classifies as private records containing data on individuals which, if disclosed, would constitute “a clearly unwarranted invasion of privacy.” Id. Additionally, Subsections 305(11) and (13) deem a record protected if the disclosure would jeopardize “the life or safety of an individual” or “would interfere with the control and supervision of an offender’s incarceration, treatment, probation, or parole.” Utah Code §§ 63G-2-302(2)(d); 63G-2-305(11); 63G-2-305(13). At the hearing, the Respondent conceded that Petitioner had not yet filed five record requests this calendar year. Therefore, given that there is a record referencing Petitioner within the infirmary log, we find that Petitioner should be allowed that specific record. However, we also acknowledge that the record may contain information that does not reference Petitioner as the Code requires or is otherwise protected or private. For that information, we permit the Respondent to redact such information. See Utah Code § 63G-2-308 (allowing the governmental entity to allow access to information in the record the requester is entitled to inspect and also deny access to information that is exempt from disclosure).
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED in part and DENIED in part. The Respondent is ordered to make available any records in the infirmary log that specifically reference Petitioner. The Respondent may restrict access to and redact private and protected information about other individuals as Sections 302 and 305 so require.
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).
Entered this 1 day of August 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH STATE TREASURER, Respondent.
DECISION AND ORDER
Case No. 23-37
This Decision and Order concerns multiple appeals. Brady Eames (“Petitioner”) appeals the Utah State Treasurer’s (“Respondent”) decision to deny several fee waiver requests with respect to multiple records requests. Because the issue being appealed from each of the Respondent’s underlying decisions is the same, the following appeals are consolidated into this Decision and Order: 2023-27; 2023-28; 2023-29; 2023-30; 2023-31; 2023-32; 2023-33; and 2023-90.
FACTS
Petitioner requested records and fee waivers from the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). In the requests for a fee waiver, Petitioner states that as a resident of Utah, Cache County, and Logan, that he is entitled to these records for free. In February 2023, Petitioner requested certain transactional reports and pro-rata shares from the Public Treasurers’ Investment Fund in connection with a number of public entities for certain months throughout 2022. The Respondent provided some records and indicated that other records were publicly available online. For the records it found and delivered, the Respondent charged Petitioner a fee of $42.50.
Later, in July 2023, Petitioner filed a similar GRAMA request seeking the same reports for different months in 2022 in connection with many of the same public entities [1]. The Respondent denied the request on the basis that the $42.50 for the prior records request was never paid. Petitioner appealed the denial to the Respondent’s chief administrative officer (“CAO”) who upheld the decision.
Petitioner has now filed an appeal with the State Records Committee (“Committee”). On August 17, 2023, 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
We must determine whether the fee waiver denial was reasonable.
STATEMENT OF REASONS FOR DECISION
A. The Respondent’s Fee was Legally Proper
Under the GRAMA, “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 governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1)(a). In an effort to fill a records request, if a governmental entity must compile, format, manipulate, or tailor the records from the form they are normally maintained in, then the entity may charge a reasonable fee for doing so. Utah Code § 63G-2-203(2)(a)(i).
Petitioner argues that he should not be charged a fee because (1) he is constitutionally permitted a right to the records without a fee; and (2) that the records supplied to him for his February request were not responsive; therefore, no fee should be assessed and be held over him for his July (and future) requests. We disagree on both counts.
Yes, the GRAMA has a “strong presumption in favor of public disclosure.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶55. Indeed, the legislative intent in enacting the GRAMA is to recognize the public’s “constitutional right” of “access to information concerning the conduct of the public’s business.” Utah Code § 63G-2-102(1)(a). However, the GRAMA also permits a governmental entity to charge a reasonable fee, which has been addressed by our Courts. See e.g., Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136 (holding that a reasonable fee may be charged when the governmental entity must compile the records in a form other than normally maintained or from a larger source); and Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62 (holding that the test for reviewing fee waiver denials is whether the decision was reasonable). With the Courts acknowledging the GRAMA’s fee provisions, we have no reason to doubt that a governmental entity may charge a reasonable fee so long as the statutory requirements are met.
Here, the Respondent had to search through a large database, compile the records, download them into a deliverable format, redact them, and then deliver them. Because the records had to be compiled from a large database source and then downloaded to a deliverable format, we find this satisfies the requirements of Section 203(2)(a)(i).
To Petitioner’s argument that the records he received were not responsive, we disagree. Neither party presented the records to us for review, so we are left to determine the issue on their arguments alone. Petitioner’s statements on this issue were conclusory and without substantive demonstration that the records did not satisfy his request. To the contrary, the Respondent’s record officer explained to the Committee the steps the Respondent took from the time the request was processed, through the search efforts, to the determination that the records were responsive and should be sent. We find the records officer’s explanation more convincing of the records’ adequacy than Petitioners.
Accordingly, we find that the records delivered to Petitioner in response to his February requests were responsive, and that the fee of $42.50 for the records was assessed in accordance with Section 63G-2-203(2)(2)(a).
B. The Decision to Deny the Fee Waiver Request was Reasonable Under the Circumstances
In finding that the Respondent has a legal basis for the fee, we turn now to its decision to deny the request for a fee waiver. Jordan River governs this issue, standing for the proposition that when reviewing the government’s decision to deny a fee, we are to determine whether that decision was reasonable. Jordan River at ¶52 (“We clarify that upon judicial review of a governmental entity’s fee waiver denial, the ultimate question is not whether the entity abused its discretion, but whether its decision was reasonable.”). Here, we find that the $42.50 fee was derived from the hourly wage of the lowest paid employee qualified to fill Petitioner’s request. See Utah Code § 63G-2-203(2)(b).
In addition, the responsive records had to be extracted from a larger source and was quite numerous. Accordingly, we find the Respondent’s decision to not waive the fee reasonable in light of these circumstances.
ORDER
THEREFORE, IT IS hereby ordered that Petitioner’s appeal is DENIED.
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).
Entered this 28 day of August 2023.
BY THE STATE RECORDS COMMITTEE
______________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
1. The entities for which Petitioner requested the reports are Logan City, Cache County, Utah League of Cities and Towns, Utah Local Governments’ Trust, Utah Associated Municipal Power Systems, and Utah State University.
",Denied,2023-08-28T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SHAUN LUCAS, Petitioner, vs
BOX ELDER COUNTY, Respondent,
DECISION AND ORDER
Case No. 23-44
By this appeal Shaun Lucas, (“Petitioner”), requests records allegedly held by Box Elder County (“Respondent”).
FACTS
Petitioner filed three records requests with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). On December 30, 2022, Mr. Lucas requested “cost data referred to in Standard 6.6.9 of the Real Property Valuations Standards of Practice issued by the Utah State Tax Commission.” On January 12, 2023, he requested two different records requests. The first “GRAMA Request Form,” specifically requested: “sales file referenced in Standard 6.6.10 of the Real Property Valuation Standards of Practice issued by the Utah State Tax Commission.” The second “GRAMA Request Form,” specifically requested: “sales ratio studies pursuant to Standard 6.10.1 of the Real Property Valuation Standards of Practice issued by the Utah State Tax Commission.” In an effort to understand the request and assist Petitioner in obtaining the information he was after, the Respondent made contact with him to discuss the requests at length.
December 30, 2022, request - The Respondent understood this request to mean that Petitioner was attempting to verify that his property valuations, as well as the property valuations of all the residents in the County, had been calculated correctly. Petitioner was seeking information about the valuation data used by the Respondent to derive the property valuations, including the copyrighted publication known as “Marshall & Swift.”
To calculate property valuations for properties within Box Elder County, the Respondent utilizes an appraisal software known as PUMA. This software has been developed, maintained, and is owned by the Multi County Appraisal Trust (“MCAT”), an independent interlocal entity created by the counties of the State of Utah. It incorporates appraisal data from many different sources, including the copyrighted publication, Marshall & Swift. MCAT is the owner of this software, as well as all of the licenses to use the copyrighted and proprietary data incorporated into the software. The software, the data, and access to the data are kept and maintained by MCAT. The Utah State Tax Commission has approved and authorized use of PUMA software by the counties within the State of Utah. The Respondent does not own, maintain, or have access to the data contained within the PUMA software.
With respect to the information contained within the copyrighted publication known as “Marshall & Swift,” the Assessor told Petitioner that the Utah State Tax Commission’s license to use that publication prohibited both the Respondent and the Utah State Tax Commission from being able to share that publication with him. Petitioner was told that he could purchase his own copy of the same copyrighted publication in the open market.
Because the Respondent does not have access to the data within the PUMA software, and because much of that data is copyrighted and proprietary, the it advised Petitioner that there were no records which it could provide in response to Petitioner’s request, and that he would have to obtain the information directly from MCAT.
January 12, 2023, requests – After discussing these requests at length the Respondent understood that Petitioner was seeking information and sales data contained within computer software developed, kept, and maintained by the Utah State Tax Commission and known as RatioLink. The RatioLink software is a compilation of sales data from many sources, including Multiple Listing Service (“MLS”)—a private proprietary and copyrighted service—transfer surveys, and various other commercial and residential sales data. The Utah State Tax Commission is the owner of this software and the licenses to the proprietary and copyrighted data incorporated within it. As a result, the software, data, and all access to the data are kept and maintained by the Utah State Tax Commission.
The Respondent is allowed by the Utah State Tax Commission to access the software in the appraisal of properties in Box Elder County. Because RatioLink software contains proprietary and copyrighted data, both the Utah State Tax Commission and the Respondent are contractually and legally prohibited from sharing this data. Due to the fact that the Respondent does not own, maintain, or have access to the data within the RatioLink software, and because much of the data is proprietary and copyrighted, the Respondent denied Petitioner’s records request. Petitioner was directed to the Utah State Tax Commission to further pursue obtaining the information he was requesting.
Petitioner appealed the denial of records to Respondent’s chief administrative officer (“CAO”). These appeals were reviewed by both the Chairman and the Box Elder County Attorney. The Box Elder County Attorney reached out and discussed these records at length with Petitioner. After becoming familiar with Petitioner’s requests as well as the PUMA and RatioLink software utilized by the Respondent, the Chairman of the Box Elder County Commission affirmed the initial denial. However, Petitioner was provided with a copy of the “cost multipliers” used by the Respondent as well as a copy of the specific information and data used in PUMA for the 2022 valuation of his property.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On August 28, 2023, 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
We must determine whether the Respondent performed a reasonable search for the records.
STATEMENT OF REASONS FOR DECISION
Under the GRAMA, “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). When a governmental entity receives a record request, it “shall conduct a reasonable search for [the] requested record.” Utah Code § 63G-2-201(7)(b).
Subsection 201(7)(b) is newly enacted from the Utah legislature’s 2023 session. As a new provision within the GRAMA, we must interpret what it means and how to measure a governmental entity’s compliance. “When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance.” Amann v. Office of the Utah Attorney General, Utah State Records Committee, Decision and Order, no. 22-56 (entered Dec. 27, 2022) (referencing Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations)). Under the FOIA, whether a search is reasonable is determined by the process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). “Reasonableness” is fact-dependent on a case-by-case basis. Weisberg, at 1351. If we determine that the governmental entity’s search was reasonable, the burden is on the petitioner to show that it was not. Amann, at 2.
In this case, the Respondent has repeatedly asserted that it doesn’t own or possess the records Petitioner seeks. The Respondent has advised him that the requested records are held by MCAT and the Utah State Tax Commission. The Respondent has even provided contact information to Petitioner for whom he can directly speak to regarding the requested records. Additionally, the Respondent also asserts that it doesn’t own or maintain the software behind the records, and therefore, it cannot produce the requested records. Not only does it not own or maintain it, but it also cannot access it to obtain the requested information.
We are mindful of Petitioner’s right to public records concerning his property and its valuation. However, it’s clear to us that while the Respondent may use certain tools and resources to provide property valuations on its residents’ properties each year, that does not necessarily mean records are created during that process. And as Petitioner has provided no evidence to show that the Respondent does in fact possess the records, or that their search was inadequately performed, we defer to the Respondent and uphold its denial.
ORDER
THEREFORE, IT IS HEREBY ORDERED that Petitioner’s appeal is DENIED.
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).
Entered this 6 day of September 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TAYLOR BARNES (Inkstick Media), Petitioner, vs
GOVERNOR’S OFFICE OF ECONOMIC OPPORTUNITY, Respondent,
NORTHROP GRUMMAN SYSTEMS CORPORATION, Intervenor, Interested Party,
DECISION AND ORDER
Case No. 23-31
By this appeal Taylor Barnes (“Petitioner”), requests records allegedly held by the Governor’s Office of Economic Development (“Respondent”). Northrup Grumman Systems Corporation (“NG”) intervenes as an interested party.
FACTS
On August 18, 2018, the Respondent entered into an “Agreement Regarding Records that are Designated Protected Under GRAMA” (the “Confidentiality Agreement”) with NG. The Confidentiality Agreement was part of NG’s application to the Respondent for an “Economic Development Tax Increment Finance Agreement” (“Economic Development Agreement”) that would give NG certain tax benefits in exchange for NG’s expanding its operations in Utah which would create new jobs for Utahans.
Ultimately, NG’s application was successful, and over the course of nearly four years, the parties formally negotiated the Economic Development Agreement, finally coming to terms and signing it on May 2, 2022.
On December 5, 2022, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested “the [Economic Development Agreement] for the tax credits offered to Northrop Grumman for the Ground-Based Deterrent.” Two weeks later, the Respondent provided a copy of the agreement but with some redactions. After some back-and-forth questions and answers through email with the Respondent, Petitioner eventually appealed the redactions to the Respondent’s chief administrative officer (“CAO”).
On January 17, 2023, the CAO responded to the appeal with a detailed decision. The CAO determined that the redactions were proper. To the extent that Petitioner’s own research had found some of the redacted information online (through websites, press releases, and other public records), the CAO acknowledged that the information Petitioner found was made public as part of the award process and, as a result, the redactions were not required to be lifted under Utah Code § 63G-2-201(8)(d)(e). As for the redacted information that was not ever made public, the CAO determined those redactions were also proper and would remain.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision to leave the redactions in place. On July 20, 2023, 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
We must determine whether the redactions within the Economic Development Agreement are proper or if they should be lifted.
STATEMENT OF REASONS FOR DECISION
The Respondent claims that the redactions are proper for two reasons: First, the redacted information is warranted under Subsections 63G-2-305(1)-(2) and pursuant to the Confidentiality Agreement, which, according to Section 63G-2-309, allows NG and the Respondent to assert a business confidentiality claim over the redacted information. Second, the redacted information is protected under Section 63G-2-305(35) and (83).
1. The Respondent’s and NG’s Business Confidentiality Claim
1.a. Requirements to Classify Records as “Protected” Under a Business Confidentiality Claim
The GRAMA states 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). Further, a record that is private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5). When analyzing whether a governmental entity has correctly classified redacted information as protected, this Committee has the authority to view the records in camera and review the information unredacted. Utah Code § 63G-2-403(9)(a)(ii). At the hearing, the Committee moved to view the unredacted contract in camera to aid it in its analysis. While reviewing the record, we also reviewed the Confidentiality Agreement.
After review, the Committee sought clarification on when the Confidentiality Agreement was executed. The Respondent confirmed that the parties entered into that agreement in 2018 and in conjunction with NG’s application for the Economic Development Contract. Once the Confidentiality Agreement was signed, NG then applied for the Economic Development Agreement award. After it received the award, the parties then negotiated the terms of the Economic Development Agreement until it was formally signed in May 2022. NG testified that it considered expanding its operations into other states where it would realize significant economic benefit, but it chose Utah largely because our GRAMA laws allowed it to assert a business confidentiality claim over the contract, or, at least certain parts of the contract, and restrict its access from routine record requests. With that in mind, and the records reviewed, the Committee focuses on the correctness of the classifications.
NG asserts business confidentiality over the redacted Economic Development Contract in accordance with two GRAMA provisions: (1) Subsection 63G-2-305(1), which protects trade secrets; and (2) Subsection 63G-2-305(2), which protects certain commercial information. We examine each.
1.a.1. Protection of Trade Secrets
Utah Code § 63G-2-305(1) protects trade secrets, as that term is defined in Section 13-24-2, if the person submitting the trade secret provides the governmental entity with a business confidentiality claim in accordance with Section 63G-2-309. Looking to the definition of “trade secret,” Section 13-24-2(4) states:
(4) “Trade Secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Utah Code § 13-24-2(4).
Upon reviewing the unredacted information in camera, we find that it meets this definition. Satisfied that the redactions constitute trade secrets for purposes of Section 63G-2-305(1), the remaining question is whether NG properly submitted a confidentiality claim under Section 63G-2-309 to preserve confidentiality over them. We will analyze the business confidentiality claim infra.
1.a.2 Protection of Commercial Information
With respect to whether commercial information may be protected under the GRAMA, Subsection 205(2) provides a three-pronged test. The statute states that the following records are protected if properly classified:
(2) commercial information or nonindividual information obtained from a person if:
(a) disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future:
(b) the person submitting the information has a greater interest in prohibiting access than the public obtaining access; and
(c) the person submitting the information has provided the governmental entity with the information specified in Section 63G-2-309.
Utah Code § 63G-2-305(2)(a)-(c).
The Respondent and NG both argue that the defense industry is highly competitive. Although NG is a predominant defense contractor in the United States, it faces respectable competition from other notable companies such as Boeing, Ratheon, and Lockheed Martin. To this, NG’s Director of Tax Accounting 2, Lori Nieto, stated in her Declaration of Support of NG’s Request for Intervention, that:
If the confidential information redacted in [the Economic Development Agreement] were released to the public, [NG] would suffer economic harm. . . . Often even small variances in a corporation’s phasing of its jobs and the various jobs a project employs will mean the difference between winning or losing a contract . . . the [Economic Development Agreement] award at issue here directly relates to the initial phase of an ongoing federal program of importance to [NG]. That means that the U.S. Air Force will likely request bids for additional phases of [its defense contract]. Moreover, disclosure of [NG’s] confidential and proprietary information outlining the company’s expected pay rates for [NG] jobs would provide [NG’s] competitors with an unfair advantage, enabling them to use that information to hire away key talent by offering salary increases. Disclosure of the redacted information . . . will impede [NG’s] ability to remain competitive, to win future contracts in Utah and other locations, and to retain key talent.
Declaration of Lori Neito in Support of Northrop Grumman Systems Corporation’s Request for Intervention, at 3-4 (emphasis original).
We see no reason to question NG’s claims that if the information were released, it would incur an unfair competitive injury, nor has any evidence been presented to contradict it. Therefore, we are satisfied the first prong of Subsection 305(2) is met.
With respect to the second prong, we can’t see how NG’s commercial information concerning its private operations would be of benefit to the public, certainly not to the extent that it outweighs NG’s interests in keeping it private. We acknowledge that at least some of the redacted information has been released to the public by way of websites and press releases. True as that may be, just because protected information from a contract can be found online or in press releases, that doesn’t necessarily mean that the redacted information loses its protective classification. Therefore, just because Petitioner has obtained some of the redacted information in the public square does not mean that the Respondent’s interest in protecting it is now outweighed and disclosure is warranted. To the contrary, however, in light of some of the redactions becoming public knowledge, it could be said that the Respondent and NG now have an even stronger interest in preserving the remaining redactions given the economic harm at stake in NG’s competitive industry. We don’t see that mere curiosity about the contract or the propriety of tax dollars being used are strong enough interests to countervail NG’s interests in protecting what remains out of the public eye. Because of these factors, we see no evidence to contradict the fact that the Respondent and NG hold a privacy interest in the redactions that outweighs the public obtaining access to them.
Finally, for the third prong, we must determine whether the business confidentiality claim was properly asserted in accordance with Section 63G-2-309.
1.b. The Business Confidentiality Claim
In establishing that both Subsections 305(1) and (2) could justify the redactions as long as NG properly provided a confidentiality claim in accordance with Utah Code § 63G-2-309, we now turn to Section 309 to make that determination. Pursuant to that section,
(1)(a)(i) Any person who provides a governmental entity a record that the person believes should be protected under Subsection 63G-2-305(1) or (2) . . . shall provide with the record:
(A) a written claim of business confidentiality; and
(B) a concise statement of reasons supporting the claim of business confidentiality.
Utah Code § 63G-2-309(1)(a)(i)(A)-(B).
Thus, to determine whether Section 309 is satisfied, we must look at the Confidentiality Agreement.
Within the Confidentiality Agreement, NG listed several reasons the contract contained protected information. Those reasons include the following:
1. The record is a trade secret;
2. The record is commercial information and disclosure could reasonably be expected to result in unfair competitive injury;
3. The record is commercial information and disclosure could reasonably be expected to impair the Respondent’s ability to obtain necessary information in the future;
4. The record is commercial information and the interest of NG in prohibiting access to the information is greater than that public’s interest in obtaining it; and
5. The information may reveal negotiations about assistance or incentives offered by the Respondent for the purpose of encouraging a person to expand or locate a business in Utah and the disclosure would result in economic harm to NG.
Confidentiality Agreement, at 7.
In addition, NG provided a statement in the agreement to support its business confidentiality claim:
. . . It would harm [NG] if its competitors or other bidders for any of the government contracts were to acquire knowledge of the information provided to [the Respondent] or the incentives negotiated as they may affect the bidding process and the ultimate bid provided by [NG]. [NG] would not be in discussions with [the Respondent] if there were the possibility that the information provided in order to discuss assistance of incentives could be revealed to the public or its competitors.
Confidentiality Agreement, at 8.
It’s clear to us that NG earnestly sought confidentiality over certain information connected to the Economic Development Agreement prior to actually entering into the agreement. Despite some of that information being public, we see from our in camera review of the redacted information that the information it seeks to protect is both trade secrets and commercial information relevant to its operations and business purposes. We see no reason to question NG’s assertions that releasing the information could cause it economic harm by way of the industry’s competitive forces.
As this Committee has the authority to weigh the various interests surrounding disclosing the record and restricting its access, for the reasons set forth supra in this Order, we find that the public interest in lifting the redactions does not outweigh the interests in sustaining them. Although some of the redacted information is already public knowledge (projected number of Utah jobs and average salary), that does not necessitate lifting any or all of the redactions, especially when the redacted information that has not been made public is more oriented and central to NG’s operations and competitive strategy. Those things hold little to no benefit to the public in comparison to the competitive harm NG could suffer if it were released.
NG specifically chose Utah to expand its operations because of the protections our GRAMA laws provide over the information it would convey in an economic contract with the state. NG then worked with the Respondent from the onset to follow the GRAMA with precision and properly lay the necessary foundation to assert a business confidentiality claim over a GRAMA request for final contract with the state. With a private company sharing its trade secrets and commercial information with the state after deliberately choosing Utah for its GRAMA law protection over that information, and then fulfilling the necessary legal requirements to retain the right to assert that protection over that very information that is included in the contract, we believe the public’s interest must be quite significant to outweigh the company’s interests in keeping its information confidential. From the evidence and arguments submitted, we don’t see any such notable interests here that warrant piercing NG’s confidentiality.
2. The Protections of Subsections 63G-2-305(35) and (83).
The Respondent also argues that the redactions in the Economic Development Agreement are required under Utah Code §§ 63G-2-305(35) and (83). However, since we conclude that the redactions are proper and warranted under NG’s business confidentiality claim, we need not address this issue.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED. The redacted information is warranted under Subsection 63G-2-305(1) and (2), pursuant to the business confidentiality claim NG set forth under Section 63G-2-309.
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).
Entered this 1 day of August 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN BOOS, Petitioner, vs
SAN JUAN COUNTY, Respondent,
DECISION AND ORDER
Case No. 23-40
By this appeal Steven Boos (“Petitioner”), requests a fee waiver and records allegedly held by, San Juan County (“Respondent”).
ORDER
Petitioner did not attend his hearing, and Respondent did not submit to us its statement of facts as required by Utah Code § 63G-2-403(5)(a). Therefore, this matter is continued. The Executive Secretary will schedule a new date for this hearing.
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).
Entered this 6 day of September 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ITV AMERICA, Petitioner, vs
SALT LAKE COUNTY SHERIFF’S OFFICE, Respondent
DECISION AND ORDER
Case No. 23-47
By this appeal ITV America (“Petitioner”), requests a fee waiver for requested records held by Salt Lake County Sheriff (“Respondent”).
FACTS
Petitioner is a producer of documentaries and other programming. On April 18, 2023, the Respondent received a record request from Petitioner pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner made this request so that it could gather information for a documentary series it desires to produce on the criminal case of Jamie Ridd, who pled guilty to purchasing a harmful biological agent so she could inject it into her roommate. Specifically, the request was for the “audio of the jail calls placed by Janie Lynn Ridd” that were made from the Salt Lake County Adult Detention Center on the following dates:
At least some of these recordings were used in Ms. Ridd’s prosecution.
In a succinct response, the Respondent denied the request, stating that the records were classified as private under Utah Code 63G-2-302 and/or protected under 63G-2-305.
Petitioner appealed the denial to the Respondent’s chief administrative officer (“CAO”). Petitioner argued that the denial was improper because the denial gave no explanation for the denial other than “perfunctory citations to section 302 (which has 37 different subsections) and section 305 (which has over 80).” Petitioner argued that because the Respondent bears the burden of establishing the applicability of one of GRAMA’s exceptions to the presumption of public access, and it did not adequately do so, it waived the right to rely on these sections to deny access. Additionally, petitioner argued that phone calls from a jail cell could not be classified as private because, in essence, there was no expectation of privacy in a jail cell due to the monitoring and surveillance. And as to the denial because the records could be classified as protected under Section 305, Petitioner argued that because the investigations into Mr. Ridd had been complete, the records could not be protected, and that even if they were, the interests favoring access are greater than those favoring restriction of access. However, in a detailed response, the CAO addressed each argument and ultimately upheld the decision to deny the record request.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On September 21, 2023, 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
We must determine (1) whether recordings of Ms. Ridd’s calls while she was incarcerated are public records available under GRAMA; (2) if they are, whether Respondent has classified them correctly; and (3) if the classifications are correct, whether the records may still be released.
STATEMENT OF REASONS FOR DECISION
I. The Recorded Phone Calls Are Records Under GRAMA
Under the GRAMA, “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). “Record,” in turn is a matter of definition, and the pertinent provisions of GRAMA’s definition of “record” for this appeal are, first, what a record is:
(a) “Record” means a . . . recording, . . . or other documentary material regardless of physical form or characteristics:
(i) That is prepared, owned, received, or retained by a governmental entity . . .; and
(ii) Where all of the information in the original is reproducible by . . . mechanical or electronic means.
Utah Code § 63G-2-103(25)(a)(i)-(ii).
And, second, what a “record” is not:
(b) “Record” does not mean:
(i) A personal note or communication prepared or received by an employee or officer of a governmental entity:
(A) in a capacity other than the employee’s or officer’s governmental capacity; or
(B) that is unrelated to the conduct of the public’s business;
Utah Code § 63G-2-103(25)(b)(i).
There is no debate that Respondent recorded Ms. Ridd’s phone calls while incarcerated. There is no debate that those recordings are owned and retained by Respondent and can be reproduced. Therefore, the initial presumption is that the phone recordings are records under GRAMA; and if that presumption is correct, then it follows that they are public records “unless expressly provided by statute.” Utah Code § 63G-2-201(2). But Respondent argues the recordings are not records because they don’t relate to the conduct of the public’s business.
Utah’s GRAMA addresses the ‘public business’ element in the definition of what a record is not, as opposed to what it is. Therefore, if a recording does relate to the conduct of the people’s business, then Subsection 103(25)(b)(i) cannot apply and the recording must be deemed a record under Subsection 103(25)(a). Therefore, we look to see if Ms. Ridd’s recorded phone calls are related to the public’s business.
While it may be true that Ms. Ridd’s actual conversations were unrelated to the conduct of the people’s business, the recordings were. The recordings were kept by Respondent and shared with the prosecutor who used them to prosecute her. Prosecuting an alleged criminal is conducting the people’s business. Put differently, the substance of the calls may not have had anything to do with the public’s business, but the recordings themselves were used by the government to carry out the people’s business of prosecuting her. Thus, we find that Subsection 103(25)(b)(i) is not applicable, and that the recordings are records under Subsection 103(25)(a).
II. The Recordings Were Properly Classified
In finding that the phone call recordings are records, we now turn to whether Respondent classified them correctly. Here, Respondent argues that if the recordings are records under the GRAMA, then they are classified as private under Section 63G-2-302(2)(d) and cannot be disclosed. That Subsection provides that a record is private if it contains data on an individual to which its disclosure would constitute a “clearly unwarranted invasion of personal privacy.” Utah Code § 63G-2-302(2)(d).
We acknowledge that by virtue of Ms. Ridd being incarcerated, her right of privacy in her phone calls was diminished. See e.g., Romo v. Champion, 46 F.3d 1013, 1018 (10th Cir.1995) (expectations of privacy are limited by the exigencies of prison security)). Indeed, incarcerated individuals are notified that their phone calls are recorded and monitored, which cuts squarely against having a reasonable expectation of privacy. However, we also acknowledge that an inmate’s conversations may contain personal and private information, and notwithstanding the notice that calls are monitored, inmates don’t generally expect that their conversations will be discoverable to the general public through a GRAMA request. On this point, Respondent points us to Bent v State, 46 So.3d 1047, 1050 (Fla.4th DCA 2010). There the Court said,
Although inmates may have little expectation of privacy since they are informed the calls are subject to monitoring and recording, a lack of expectation of privacy does not affect whether the recordings are subject to disclosure under the Public Records Act. Inmates receive no notice that calls may be disclosed to the general public. The expectation that a deputy or state attorney may listen to a call is very different from an expectation that anyone and everyone could listen to the calls. Sensitive or embarrassing information, or information that would otherwise be confidential, like financial information of the inmate or the person called, could be disclosed to the public. Id.
We think this is correct. Although the Bent Court held that the inmate’s recorded conversations were not public records under Florida’s own definition of “public records,” we do agree with the Court’s privacy assessment. Ms. Ridd did know her conversations were being recorded, but that notice did not further inform her that the conversation could be heard by the public under any given GRAMA request for the recordings. Therefore, we conclude that as much as her expectation of privacy was “severely curtailed,” that expectation was not entirely lost. U.S. v. Gangi, 57 Fed.Appx. 809, 815 (10th Cit. 2003) (quoting U.S. v. Van Poyck, 77 F.3d 285, 291 (9th Cir. 1996) (“Although prisoners do not forfeit all their privacy rights at the jailhouse steps, they do have those rights severely curtailed.”). Accordingly, because Ms. Ridd’s privacy rights were not absolutely relinquished, we find that Respondent classifying the records as private in connection to GRAMA requests was correct.
III. The Interests Favoring Disclosure Outweigh Those Favoring Restriction.
We now turn to whether the records should be disclosed.
When a record is properly classified under Section 63G-2-302, we may order the requested records be disclosed if, after “weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure,” we find that “the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). In weighing the interests, the law instructs that “the balancing analysis under GRAMA must be tethered to the specific interests of the parties and the particularized application of the relevant public policies at issue.” Shroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶ 51.
Petitioner seeks the recordings so that it may use them in its documentary series on Ms. Ridd’s case. This documentary series will be produced and made available to the public at large, including markets outside of Utah. Additionally, the government has already used the requested recordings in a public proceeding against Ms. Ridd. Thus, the particularized interest of Petitioner is quite strong. Schroeder, ¶ ¶ 51, 57. Likewise, Respondent’s interest in protecting Ms. Ridd’s personal calls is also strong. As noted above, Ms. Ridd was not informed that, though her calls would be monitored, they would also be discoverable to anyone through our records laws, In addition, a documentary series will have a much broader audience than the local prosecution, which means that Ms. Ridd’s private and personal calls may be heard far beyond those in this state.
In weighing the parties’ particularized interests, we find that, especially since the recordings have already been used in Ms. Ridd’s prosecution, the interests favoring disclosure do outweigh those favoring restriction. However, given that the documentary will be released into all markets beyond our state, we do believe some limitations to the disclosure are warranted.
IV. The Records May be Redacted
Section 63G-2-308 permits a governmental entity to allow access to information the requester is entitled to inspect while also denying access to information that is exempt from disclosure. Utah Code § 63G-2-308(1)-(2). Thus, if a record contains both information that is public and information that is private, the entity may protect that private information before delivering the record.
Because we are sensitive to Ms. Ridd’s private calls being published in a mainstream documentary series, Respondent may screen the recordings before disclosing them to determine whether the calls contain any information that, if disclosed, would constitute a “clearly unwarranted invasion of personal privacy.” Utah Code § 63G-2-302(2)(d). If there is such information, Respondent may redact the recordings in accordance with Section 308 as applied to Subsection 302(2)(d).
ORDER
THEREFORE, in accordance with this decision, Petitioner’s appeal is hereby GRANTED.
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).
Entered this 2nd day of October 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
See https://archives.utah.gov/src-appeal-23-55/
",Granted,2023-10-30T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH LEAGUE OF CITIES and TOWNS, Respondent,
DECISION AND ORDER
Case No. 24-09
By this appeal, Brady Eames (“Petitioner”), requests records allegedly held by Utah League of Cities and Towns (“ULCT”) (“Respondent”).
FACTS
On or around August 20, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested records showing “the deposit and investment report that pertains to the time period January 1, 2023 to June 30, 20203 and that was made by the public treasurer of the [Utah League of Cities and Towns] (Report).”
On August 31, 2023, the Respondent replied to the request, informing Petitioner that he had an outstanding amount of $84.10 related to a previous record request on January 28, 2022 (“2022 Request”), and that, because of the owing amount, the request for the Report would not be processed until the owing fee was paid.
Petitioner filed an appeal to the chief administrative officer (“CAO”) on September 2, 2023. However, from the record, it appears that the CAO failed to respond to the appeal, which is the “equivalent of a decision affirming the access denial” under Utah Code § 63G-2-401(5)(b)(i).
Petitioner has now appealed to the State Records Committee (“Committee”), On January 18, 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 parties ask us to review two issues. First, whether the Respondent’s refusal to process the current record request because of the back-owing fee constitutes a formal denial under GRAMA that would trigger appeal rights and our jurisdiction over the matter; and, second, if we do have jurisdiction over the appeal, whether the current request for records can be denied due to the back-owing fee.
STATEMENT OF REASONS FOR DECISION
1. Restricting Access to Records Due to Past-Owing Fees Constitutes a Denial Under GRAMA
To begin, we take on the issue of whether this appeal is ripe for adjudication. The Respondent argues that this Committee doesn’t hold jurisdiction over the matter because Petitioner’s request was never formally denied. Rather, the argument goes, the current record request is merely being held until the fee for the 2022 Request is paid, and because it’s being held in an unprocessed state, the Respondent argues that the request is not actually denied nor could it be..
When a governmental entity receives a request for records, it must, no later than 10 business days after receiving the request, or five business days if the request warrants an expedited response, respond in one of the following ways:
(i) Approve the request and provide a copy of the record;
(ii) Deny the request in accordance with the procedures and requirements of Section 63G-2-205;
(iii) Notify the requester that it does not maintain the record requested and provide, if known, the name and address of the governmental entity that does maintain the record; or
(iv) Notify the requester that because of one of the extraordinary circumstances listed in Subsection (6), it cannot immediately approve or deny the request, and include with the notice:
(A) A description of the circumstances that constitute the extraordinary circumstances; and
(B) The date when the records will be available. . . . Utah Code § 63G-2-204(4)(b)(i)-(iv).
Thus, under the law, a governmental entity’s response to a records request, must fall into one of these four types of responses. Of the four that the statute outlines, only Subsection (4)(b)(iv)’s response is for a situation where the governmental entity can neither approve or deny the request, but for the government to lawfully utilize a non-approval/non-denial response, its reasoning must comport with Subsection 204(6). Therefore, if the Respondent is correct that it can neither approve or deny Petitioner’s request because of a back-owing fee, then non-payment for a previous record request would have to be listed as an extraordinary circumstance under Subsection (6).
Subsection 204(6) states:
The following circumstances constitute “extraordinary circumstances” that allow a governmental entity to delay approval or denial by an additional period of time . . . if the governmental entity determines that due to the extraordinary circumstances it cannot respond within the time limit provided in Subsection (4):
(a) another governmental entity is using the record . . . ;
(b) another governmental entity is using the record as part of an audit, and returning the record before the completion of the audit would impair the conduct of the audit;
(c) (i) the request is for a voluminous quantity of records or a record series containing a substantial number of records; or
(ii) the requester seeks a substantial number of records or records series in requests filed within five working days of each other;
(d) the governmental entity is currently processing a large number of records requests;
(e) the requests requires the governmental entity to review a large number of records to locate the records requested;
(f) the decision to release a record involves legal issues that require the governmental entity to seek legal counsel . . . ;
(g) segregating information that the requestor is entitled to inspect from information the requester is not entitled to inspect requires extensive editing; or
(h) segregating information that the requester is entitled to inspect from information the requester is not entitled to inspect requires computer programming. Utah Code § 63G-2-204(6)(a)-(h).
Noticeably absent from the list is the circumstance where the requester has not paid an owing fee connected to a previous records request. Because such a situation is not listed within Subsection (6) as a reason permitting the entity to delay approval or denial, we cannot agree with the Respondent’s claim that Petitioner’s appeal rights have not been made effective by virtue of it delaying its response. The law is equally clear that when the Respondent received Petitioner’s request, it had ten business days to issue a formal approval or denial. Utah Code § 63G-2-204(4)(b). If the Respondent “fails to provide the requested records or issue a denial within the specified time period, that failure is considered the equivalent of a determination denying access to the record.” Therefore, because the Respondent didn’t have a statutorily permitted circumstance by which to delay its formal response, and it didn’t formally approve or deny Petitioner’s request within ten business days, we find that the Respondent has effectively denied Petitioner’s request by operation of law. As a result of the legal denial, Petitioner’s appeal rights sprung into effect and this Committee has jurisdiction to hear and decide his appeal.
2. The Respondent May Deny the Request Due to the Owing Fee
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, in enacting GRAMA, the legislature also sought to balance the public’s right to access records with the burden shouldered by government in receiving “time-consuming and burdensome records requests.” Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136, ¶23. This balance is struck by the government’s ability to assess fees for certain requests. See Utah Code § 63G-2-203. If a fee is assessed on a request and the requestor files a new request in the future, the governmental entity “may require payment of past fees . . . before beginning to process the request if: (ii) the requester has not paid fees from previous requests.” Utah Code § 63G-2-203(8)(a)(ii).
When it comes to fees, the Graham court instructed that when a governmental entity imposes a fee on a requester, the entity must “prior to compiling records and imposing a fee, [ ] inform the requester that fees will be assessed and, if so desired, allow the requestor to modify or withdraw the request based on this information.” Id. ¶27. Thus, whether a governmental entity may demand payment for past owing fees before filling a new records request depends on whether the past fees were assessed in accordance with Graham’s instruction.
In this case, the record reflects that when Petitioner submitted his 2022 Request, the Respondent uploaded the responsive records through its electronic record portal. In addition to the uploaded records, the portal also produced a notification of the fee that the Respondent assessed for producing the records. As Graham clearly requires that a requester be given notice of an assessed fee and the opportunity to modify or withdraw the request before the records are compiled, the fact that the Respondent used the records portal to deliver the records and notify Petitioner of the fee does not lend to the cleanest demarcation between fee notices and record delivery as Graham suggests. However, we do find it material that in order to retrieve the records from the portal, Petitioner had to take the affirmative action of downloading the file. That is, the portal essentially makes the records available for retrieval; it does not actually send the records to the requester. Thus, Petitioner was made aware of the fee when the records were offered for download. As Petitioner admitted in the hearing that he downloaded the records that were made available to him, we find that he consented to the fee by doing so. At any time prior to downloading the records Petitioner could have contacted the Respondent to object to the fee, modify, or withdraw his request. Nor did Petitioner ever appeal the assessed fee. Instead, he proceeded to download the available records. Accordingly, we find that the past owing fee was permissibly levied and the Respondent may refuse to process the current request until the 2022 Request fee is paid.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 29 day of January 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NIMO LEAUANAE, Petitioner, v.
ALPINE SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 21-38
By this appeal, Petitioner, Nimo Leauanae, appeals two decisions by Respondent, the Alpine School District.
FACTS
On October 27, 2020, a volleyball game was held between Timpview and Mountain View High Schools. During the game, an incident took place between the coach of the Mountain View team, and the daughter of Ms. Leauanae, a player on the Timpview team. On January 13, 2021, Ms. Leauanae sent an e-mail to Mountain View Vice Principal Mike Erickson, asking if “there was an investigation” of the incident. In an e-mail dated January 15, 2021, Principal Erickson stated that “we have exhaustively investigated the incident.”
On January 15, 2021, Ms. Leauanae submitted a records request to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Leauanae requested a copy of the referenced investigative report conducted by Principal Erickson regarding the October 27, 2020 volleyball game incident.
In an e-mail dated January 21, 2021, Respondent’s records officer denied Ms. Leauanae’s records request stating that the records had been classified as private personnel records. On January 22, 2021, Ms. Leauanae filed an appeal with Robert W. Smith, Business Administrator for Respondent. Mr. Smith upheld the initial denial finding that the records were private personnel records pursuant Utah Code § 63G-2-302(2)(a) because they included evaluative and disciplinary information. Ms. Leauanae filed an appeal of Mr. Smith’s decision with the State Records Committee (“Committee”) and her appeal was assigned Appeal # 2021-20.
On March 17, 2021, Ms. Leauanae made a second request for records pursuant to GRAMA with Respondent. Ms. Leauanae requested copies of all e-mails to and from Respondent’s Elementary Director of Student Services/Title IX Coordinator that referenced the October 27, 2020 incident. Ms. Leauanae also requested a fee waiver for these records. On April 5, 2021, Respondent’s records officer provided Ms. Leauanae with all responsive e-mails except for two e- mails. The records officer denied Ms. Leauanae’s request for a fee waiver and assessed her $168.75 for staff time spent responding to the records request.
Ms. Leauanae filed an appeal with Respondent on April 22, 2021. Mr. Smith responded with a letter dated May 4, 2021, denying Ms. Leauanae’s appeal and affirming the records officer’s April 5, 2021 decision. Ms. Leauanae filed an appeal with the Committee on June 2, 2021 and the appeal was assigned Appeal # 2021-78.
Because both appeals involve the same parties and arise from the same incident, the Committee heard both appeals in a hearing held on July 8, 2021. Both parties were allowed to present evidence and legal arguments at the hearing. After carefully considering the parties’ arguments and the evidence presented, the Committee 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 § 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. Records concerning a current employee with a governmental entity, including performance evaluations, are generally private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a). This classification does not include records that are public under Utah Code § 63G-2-301(2)(b) (name, gender, gross compensation, job title, job description, etc.) or records that are private pursuant to Utah Code § 63G-2-301(1)(b) (records containing data on individuals describing medical data).
3. The Committee reviewed in camera the record responsive to Ms. Leauanae’s records request in Appeal #2021-20. The Committee determined that the record is not a personnel record pursuant to Utah Code § 63G-2-302(2)(a), but instead can be characterized as a document detailing Principal Erickson’s gathering of information regarding the October 27, 2020 incident. The Committee found that based upon the information contained within the record, the record should be classified as a public record and released to the public.
4. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). A governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Utah Code § 63G-2-201(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
5. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2- 203(6)(a). The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2- 203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189.
6. In the present case, Ms. Leauanae argued that Respondent’s fee waiver denial should be overturned because: (1) The $168.75 fee is unreasonable; (2) Most of the documents provided in Appeal #2021-78 had already been previously provided by Respondent; (3) Ms. Leauanae and her daughter were the subjects of the record; and (4) Release of the record would primarily benefit the public.
7. When determining the reasonableness of a governmental entity’s decision denying a request for a fee waiver, the reviewing body should assess “whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver.” Jordan River, 2018 UT at ¶ 53, 435 P.3d at 189. GRAMA gives a governmental entity discretion in its decision regarding requests for a fee waiver (“[a] governmental entity may fulfill a record request without charge”) and only “encourages but does not mandate an entity to waive its costs when a request benefits the public.” Id at ¶ 24, at 185.
8. After having reviewed Ms. Leauanae’s request for a fee waiver and Respondent’s decision, the Committee finds that Respondent’s denial of Ms. Leauanae’s request for a fee waiver was not an unreasonable denial. Although Ms. Leauanae and her daughter were the subjects of the records, this by itself does not mandate the granting of a fee waiver. Additionally, it appears that based upon the evidence presented to the Committee, release of the records would primarily benefit Ms. Leauanae and not the public. Accordingly the Committee finds that Respondent properly considered the statutory factors for a fee waiver found in Utah Code § 63G-2-203(4)(a-c) and therefore, Respondent’s denial of Ms. Leauanae’s request for a fee waiver was a reasonable denial.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nimo Leauanae, 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 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).
Entered this 19 day of July 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 22-06
By this appeal Petitioner, Patrick Sullivan, is requesting records allegedly held by Respondent, Utah Department of Corrections ("Corrections"). The present appeal has been continued previously by the State Records Committee in Sullivan v. Utah Dept. of Corr., State Records Committee Case No. 20-29 (July 21, 2020) and Sullivan v. Utah Dept. of Corr., State Records Committee Case No., 20-34 (Aug. 24, 2020).
FACTS
On or about January 12, 2020, Mr. Sullivan submitted three requests for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan stated that he was writing an article for the Utah Prisoner Advocate Network newsletter and that the records were needed for his article. Mr. Sullivan requested a fee waiver and expedited access to initial contact reports, media statements, statistics, correspondence, and surveillance footage related to the elimination of the A/B schedule. Each of the three records requests included multiple sub-requests.
On January 23, 2020, Correction’s GRAMA Coordinator denied Mr. Sullivan’s request for an expedited request. On January 28, 2020, the GRAMA coordinator stated that an extension of time to respond was needed because Corrections was presently processing a large number of records requests which is an extraordinary circumstance. In a letter dated February 6, 2020, the GRAMA coordinator denied Mr. Sullivan’s second records request, finding that it was not reasonably specific. In a letter dated February 19, 2020, the GRAMA coordinator found that the estimated costs for providing the responsive public records in Mr. Sullivan’s first records request would be approximately $3,220.00. In another letter dated February 19, 2020, the GRAMA coordinator found that Mr. Sullivan’s third request for records should be denied because the records were protected pursuant to Utah Code § 63G-2-305(10), (11) & (13), and the request was not reasonably specific.
On March 10, 2020, Mr. Sullivan sent three e-mails to the Deputy Director for Corrections appealing the decisions of the GRAMA coordinator. In three letters dated March 24, 2020, James Hudspeth, Deputy Director for Corrections, generally upheld the GRAMA coordinator’s decisions regarding Mr. Sullivan’s three records requests.
In a document dated April 20, 2020, Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). On February 17, 2022, the Committee held a public hearing during which both parties were allowed to present evidence and arguments to the Committee. Mr. Sullivan did not appear at the hearing, but after carefully considering the written and oral arguments provided by both parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In his appeal to the Committee, Mr. Sullivan presents four issues: (1) He was entitled to an expedited response from Corrections; (2) Corrections improperly denied his request for a fee waiver; (3) Corrections improperly found that his records request was not reasonably specific; and (4) The requested surveillance video should be released because the public interest outweighs nondisclosure.
2. A governmental entity shall provide records to a requester no later than five business days after receiving a written request for an expedited request for access to record, if the requester demonstrates that the request benefits the public rather than the person. Utah Code § 63G-2-204(4)(a). A governmental entity may delay approval or denial of a request for an expedited response if the governmental entity determines that due to extraordinary circumstances, it cannot respond within the five business day time limit. Utah Code § 63G-2-204(6). Extraordinary circumstances include “the governmental entity is currently processing a large number of records requests.” Utah Code § 63G-2-204(6)(d).
3. Corrections argued that Mr. Sullivan failed to sufficiently show that his request would primarily benefit the public. Additionally, Corrections stated in its January 28, 2020 response that extraordinary circumstances did not allow an expedited response due to Corrections processing a large number of records requests. The Committee finds Corrections’ arguments persuasive and upholds its decision to deny Mr. Sullivan’s request for an expedited response.
4. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).
5. The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
6. Corrections argued that Mr. Sullivan failed to show that he was entitled to receive a fee waiver for the records, stating that he “failed to make even a minimal showing that his request would benefit the public rather than himself.” After having carefully considered the evidence, the Committee finds that the decision by Corrections to deny Mr. Sullivan’s request for a fee waiver was not an unreasonable denial of a fee waiver.
7. A person making a request for a record shall submit to the governmental entity that retains the record, a written request that describes and identifies the record “with reasonable specificity.” Utah Code § 63G-2-204(1)(a)(ii). A review of the records requests show that Corrections properly classified the records or that Mr. Sullivan’s records requests were not reasonably specific.
8. Records of a governmental entity regarding security measures designed for the protection of persons or property, public or private, are not subject to GRAMA. Utah Code § 63G-2-106. These records include building and public works designs, to the extent that the records or information relate to the ongoing security measures of a public entity. Utah Code § 63G-2-106(5).
9. Mr. Sullivan requested access to surveillance footage at the Utah Prisons in Draper or Gunnison on specific dates. The Committee finds that surveillance footage at a prison facility are records relating to ongoing security measures, and therefore, are records not subject to GRAMA pursuant to Utah Code § 63G-2-106(5). Accordingly, the Committee upholds Correction’s decision to deny Mr. Sullivan access to these records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is DENIED.
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).
Entered this 28th day of February 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 22-29
By this appeal, Petitioner, Brady Eames, requests records held by Respondent, the Utah Department of Corrections (“UDC”).
FACTS
On January 5, 2022, Mr. Eames made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Respondent. Mr. Eames requested access to records documenting the mental health status of an inmate and accounting records documenting tax funds used to provide mental health services to him. Respondent provided 16 pages of records and internet links to publicly available information on January 14, 2022. UDC denied a request for the mental health records of the inmate because they are classified as private or controlled pursuant to Utah Code §63G-2-302(2)(d) or Utah Code § 63G-2-304.
Mr. Eames filed an appeal with the State Records Committee (“Committee”) on February 7, 2022. On July 21, 2022, the Committee held a hearing during which the parties were allowed to participate. Mr. Eames did not attend the hearing. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies that a “record is 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 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 the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
4. After having considered the arguments submitted by both parties, the Committee finds that UDC properly classified the records a controlled pursuant to Utah Code § 63G-2-304 and private pursuant to Utah Code § 63G-2-302(2)(d). Mr. Eames has not proven why his need to have access to an inmate’s records, including his medical records, is greater than the government’s interest in keeping these records non-public.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames, is hereby DENIED.
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).
Entered this 1 day of August 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, Petitioner, v.
UTAH DEPARTMENT OF WORKFORCE SERVICES, Respondent.
DECISION AND ORDER
Case No. 21-51
By this appeal, Petitioner, Eric Peterson, a reporter with the Utah Investigative Journalism Project, seeks access to records held by Respondent, the Utah Department of Workforce Services.
FACTS
On May 31, 2021, Mr. Peterson made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Peterson requested the names of recipients for funds spent under the Emergency Rental Assistance Program (“ERA”) for Housing Stability Services up to June 1, 2021. In an e-mail dated June 21, 2021, Mr. Peterson was provided with a fact sheet regarding ERA and an Excel spreadsheet with ERA Data.
In an e-mail also dated June 21, 2021, Mr. Peterson filed an appeal with Respondent. Mr. Peterson argued that since individuals had received public funds through a public program, the names of the individuals should not “be kept secret.” Mr. Peterson’s appeal was denied and an appeal was filed with the State Records Committee (“Committee”). On October 28, 2021, 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.
STATEMENT OF REASONS FOR DECISION
1. 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. Records concerning an individual’s eligibility for unemployment insurance benefits, social services, welfare benefits, or the determination of benefit levels are private records. Utah Code § 63G-2-302(1)(a).
3. In the present case, Respondent argued that if the requested records were made public, there would be “a direct and readily discoverable nexus between the identified landlord and a tenant receiving benefits.” Respondent claimed that landlord participation is integral to the success of EPA and revealing the names of landlords to the public “will have a chilling effect on landlord participation.”
4. After having considered the evidence presented and the arguments of the parties, the Committee finds that the requested records were properly classified as private records pursuant to Utah Code § 63G-2-302(1)(a). The records show the amount of benefits given through EPA paid to landlords for tenants receiving benefits and the Committee is convinced that release of these records could have a chilling effect on participation in the program.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is hereby DENIED.
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).
Entered this 8 day of November 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 22-02
By this appeal Petitioner, Patrick Sullivan, is requesting records allegedly held by Respondent, Utah Department of Corrections.
FACTS
In May and June 2021, Mr. Sullivan made three requests for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Respondent provided records responsive to Mr. Sullivan’s first two records requests but denied his third records request because: (1) Mr. Sullivan had already been provided more than five records in a calendar year (See, Utah Code § 63G-2-201(10)(a)) and (2) Mr. Sullivan’s request was not reasonably specific as required by Utah Code § 63G-2-204(1)(a)(ii).
After an appeal of Respondent’s decision regarding Mr. Sullivan’s third records request was denied, Mr. Sullivan filed an appeal with the Committee. The Committee held a hearing on January 20, 2022, during which the Committee considered all of the evidence and arguments presented by the parties. The Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA states that 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). -201(10)(a) does not apply to: (1) The first five record requests submitted to the governmental entity by or in behalf of an individual described in -201(10)(a) 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 an individual described in -201(10)(a).
2. The Committee finds persuasive the evidence presented by Respondent that it was not required to respond to or provide a record in response to Mr. Sullivan’s records request pursuant to Utah Code § 63G-2-201(10)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is DENIED.
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).
Entered this 31st day of January 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS, Petitioner, v.
UNIFIED POLICE, Respondent.
DECISION AND ORDER
Case No. 22-24
By this appeal, Petitioner, Adam Herbets, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, Unified Police.
FACTS
On January 26, 2022, Mr. Herbets made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Herbets requested copies of all body camera footage of three police officers involved in two incidents. The records included body camera footage taken inside a medical facility. Nicki Dokos, Records Supervisor for the Respondent, denied the request on January 27, 2022, finding that the video camera footage was properly classified as a protected record because the cases had not yet been adjudicated.
On January 28, 2022, Mr. Herbets filed an appeal. In an email, dated February 7, 2022, Harry Souvall, Chief Legal Counsel for Respondent, affirmed Ms. Dokos’ decision, finding that pursuant to Utah Code § 63G-2-305(65), audio or video recording created by a body-worn camera that records sound or images inside a hospital or health care facility, is a protected record if properly classified by the governmental entity.
Mr. Herbets filed an appeal with the State Records Committee (“Committee”). On May 19, 2022, after having heard testimony and oral argument from the parties, the Committee unanimously voted to continue the hearing in order to allow the Committee members to have an opportunity to review the body camera footage in camera. See, Herbets v. Unified Police, State Records Committee Case No. 22-17. On June 2, 2022, the Committee held a second hearing. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies that a “record is 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. Utah Code § 63G-2-305(65) states that an audio or video recording created by a body-worn camera that records sounds or images inside a hospital or health care facility, is a protected record if properly classified by a governmental entity except for recordings that: (1) Depict the commission of an alleged crime; (2) Record any encounter between a law enforcement officer and a person that results in death or bodily injury, or includes an instance when an officer fires a weapon; (3) Record any encounter that is the subject of a complaint or a legal proceeding against a law enforcement officer or law enforcement agency; (4) Contain an officer involved critical incident as defined in Utah Code § 76-2-408(1)(f); or (5) Have been requested for reclassification as a public record by a subject or authorized agent of a subject featured in the recording.
3. An in camera review of the subject video body camera recordings show that they contain sounds and images inside a hospital or health care facility. The review of the recordings also show that none of the exceptions found in Utah Code § 63G-2-305(65)(a-e) apply. Therefore, the Committee finds that the recordings were properly classified as protected records pursuant to Utah Code § 63G-2-305(65). Additionally, when considering the weighing provision found in Utah Code § 63G-2-403(11)(b), the Committee finds that the public interest favoring access is not greater than or equal to the interest favoring restriction of access. See also, McKitrick v. Gibson, 2021 UT 48, 496 P.3d 147, fn. 11. Accordingly, the Committee upholds the decision of Respondent denying access of the recordings to Petitioner.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, is hereby DENIED.
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).
Entered this 13 day of June 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE STATE OF UTAH
ADAM HERBETS, Petitioner, v.
UTAH COUNTY ATTORNEY’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 22-25
By this appeal, Petitioner, Adam Herbets, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, the Utah County Attorney’s Office.
FACTS
In an e-mail dated February 1, 2022, Mr. Herbets on behalf of Fox 13 News, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Respondent. Mr. Herbets requested copies of all letters or e-mails received by the Utah County Sheriff’s Office explaining decisions by prosecutors with Respondent relating to the charging of a specified individual who was arrested in January 2022. Mr. Herbets stated that he is “a journalist who intends to use the data to inform the public about information contained in these public records.”
In an e-mail dated February 4, 2022, Respondent denied the records request stating that the records are protected records pursuant to Utah Code §§ 63G-2-305(18) & -305(10)(a-c) because there were ongoing investigations. Mr. Herbets filed an appeal with Chair of the Board of Utah County Commissioners, who affirmed Respondent’s denial of the records request in a letter dated February 16, 2022.
Mr. Herbets filed an appeal with the State Records Committee (“Committee”). On June 16, 2022, 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. The Committee viewed the records in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies that a “record is 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. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity pursuant to Utah Code § 63G-2-305(18).
3. Records created or maintained for criminal enforcement purposes, are protected records if properly classified by a governmental entity, if release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement; (2) Reasonably could be expected to interfere with enforcement proceedings; or (3) Would create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(a-c).
4. Mr. Herbets argued that the public has a right to know the information contained in the requested records because “it is impossible for the public to know why the Utah County Attorney’s Office declined to prosecute this case, despite indications from law enforcement that [the accused] violated state law.” Mr. Herbets further argued that the public should know about the details of the case because of “the relationship between the suspect and Utah County Attorney David Leavitt” including the individual working as a handyman at Leavitt’s home.
5. The Committee reviewed the responsive records in camera. After having reviewed the records, the Committee finds that the records were properly classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(18) & -305(10)(a-c).
6. Additionally, the Committee may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order disclosure of information properly classified as protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access pursuant to Utah Code § 63G-2-403(11)(b). See also, McKitrick v. Gibson, 2021 UT 48, 496 P.3d 147, fn. 11. A review of the records shows that the records contain nothing in the public interest, and that release of the records would create a danger of depriving the accused of a right to a fair trial or impartial hearing.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, is hereby DENIED.
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 governmental 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 28 day of June 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JONATHAN BEJARANO, Petitioner, v.
UTAH STATE BOARD OF EDUCATION, Respondent.
DECISION AND ORDER
Case No. 22-07
On February 17, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. The Committee voted to review the disputed records in camera. However, an attachment to one of the e-mail records could not be reviewed by the Committee during the hearing. Accordingly, the Committee voted unanimously to continue the hearing until the next available hearing date in order to allow Respondent to provide the attachment to the Committee for review.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jonathan Bejarano, is hereby CONTINUED.
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).
Entered this 28th day of February 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PARENTS DEFENDING EDUCATION, Petitioner, v.
SALT LAKE CITY SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 22-30
On July 21, 2022, 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. The Committee determined that prior to the Committee reviewing the records in camera, Respondent should first be given the opportunity to review and classify the responsive records. Accordingly, the Committee unanimously voted to continue the hearing until August 18, 2022.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Parents Defending Education, is hereby CONTINUED.
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).
Entered this 1 day of August 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RAPHAEL CORDRAY, Petitioner, v.
CARBON COUNTY, Respondent.
DECISION AND ORDER
Case No. 22-45
By this appeal, Raphael Cordray (“Petitioner”), requests a fee waiver and records allegedly held by Carbon County (“Respondent”).
FACTS
On March 24, 2022, Petitioner filed with Respondent a request for a fee waiver and records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested all emails and their attachments created, received, or retained by Respondent from July 1, 2020, to the date of Respondent’s response that regarded, contained, or referenced any of the following terms pertaining to Carbon County: “Satellite Port,” “Inland Port,” “Ridge Road site,” “Price river terminal,” or “Inland Port development.” Petitioner did not receive a response to her request, which under GRAMA constitutes a formal denial. Utah Code § 63G-2-204(9). On April 26, 2022, Petitioner filed an appeal to the chief administrative officer of Carbon County, who also failed to respond, thus constituting another formal denial of her appeal under Utah Code § 63G-2-401(5)(b)(i).
Petitioner filed an appeal with the State Records Committee (“Committee”) challenging Respondent’s denials. On October 13, 2022, 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.
STATEMENT OF REASONS FOR DECISION
Respondent does not necessarily dispute Petitioner’s request for the records she seeks. Respondent testified that the lack of response to her requests was borne from an overworked small county office rather than a decision on the merits or belief that the records are protected. Respondent testified that it does need to ensure that certain responsive records are not protected by attorney-client privilege, which is a protected classification under the GRAMA. Utah Code § 63G-2-305(17). With that said, Respondent agreed that County Commission records it was certain didn’t contain privileged information may be gathered and disclosed to petitioner within two weeks and the remainder within a reasonable time thereafter.
ORDER
THEREFORE, IT IS HEREBY ORDERED THAT:
1. Respondent disclose responsive records not protected by privilege within 14 days of the date of this Order.
2. This matter, as it pertains to remaining records not disclosed in accordance with this Order, is continued to November 17, 2022.
3. No later than five business days before the November 17th hearing, Respondent shall deliver to the Committee a Statement of Facts as required by Utah Code § 63G-2-403(5).
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).
Entered this 24 day of October 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
",Granted,2022-10-24T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JAIME WILEY (for Jacob Allen), Petitioner, v.
DIVISION OF CHILD AND FAMILY SERVICES, Respondent,
DECISION AND ORDER
Case No. 23-01
By this appeal, Jacob Allen (“Petitioner”), requests records allegedly held by the Division of Child and Family Services (“Respondent”).
FACTS
On July 29, 2022, by and through counsel, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) using the form the Respondent supplied in its notice. Petitioner sought “all reports, notes, findings, conclusions, summaries, and investigation-related records related to Jacob Allen [date of birth], [social security number], including but not limited to Case Number 2899047.”
On August 16, 2022, the Respondent sent notice to Petitioner’s counsel that it denied the request. The notice stated: “Pursuant to Utah Code Ann. §63G-2-305 The information requested is classified as protected: Case is still being screened for charges through the Utah County Attorney’s Office.” Through his counsel, Petitioner appealed to the Respondent’s chief administrative officer (“CAO”) on September 1, 2022, arguing the denial was in error because:
(1) An active police investigation is not a specified protection under the statute, and the subsections of the statute that do reference an investigation allow for redactions rather than an outright denial of the request;
(2) Utah Code §62A-4a-412(1) provides that while reports made by the Respondent are classified as private, protected, or controlled under the GRAMA, the reports may be made available to the subject of the report, as well as any person identified in the report as a perpetrator or possible perpetrator of abuse or neglect. Because Petitioner is both the subject of the report and, according to the notice sent by the Respondent, is identified as a perpetrator of abuse or neglect the records should be disclosed;
(3) Petitioner has a right under Utah Code § 63G-2-201(7) to records that are supporting a finding of abuse against him. He argues that he cannot readily determine if he should request a review of the agency action without being able to review the requested records and the Respondent’s findings; and
(4) Section 63G-2-202 provides “[e]xcept as provided in Subsection (11)(a), a governmental entity shall, upon request, disclose a private record to: the subject of the record,” which Petitioner is.
The CAO upheld the Respondent’s denial, stating that the Respondent received information that releasing the records could impede a criminal investigation, and that “[b]ased on the information that [the Respondent] originally received from law enforcement, that is the case with this matter. As a result, DCFS’ [sic] decision to redact or withhold the entire record is appropriate and is upheld.”
Petitioner now appeals to the State Records Committee (“Committee”), challenging the CAO’s decision. On January 19, 2023, 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.
STATEMENT OF REASONS FOR DECISION
The GRAMA maintains 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, access to a requested record is governed by statute, and the GRAMA specifically provides that if a statute outside of its framework controls a particular record’s disclosure, then access to that record is governed by the provisions of that controlling statute. Utah Code § 63G-2-201(6)(a). However, notwithstanding the GRAMA giving deference to another statutory framework, if the GRAMA’s provisions do not conflict with other governing statutes, the GRAMA will still apply. Bryner v. Canyons School District, 2015 UT App 131.
In this review, the Respondent argues that multiple statutes justify withholding the records from Petitioner. Indeed, this Committee finds that the many statutes the Respondent raises all touch this subject matter in some form or another. However, despite this, we find that only Sections 63G-2-305(44), 80-2-1002(4), and 80-2-1005(3), persuade our reasoning.
First, Section 305(44) classifies as “protected” “information contained in the Licensing Information System described in Title 80, Chapter 2, Child Welfare Services.” Utah Code § 63G-2-305(44). The records Petitioner requests are currently housed and maintained in its Licensing Information System (“LIS”) developed by the Respondent in accordance with Utah Code § 80-2-1002(1). Notably, Section 305(44) does not expressly defer record governance to Section 80-2-1002; it merely states that records held on the LIS are classified as “protected.” Accordingly, we must determine whether Section 80-2-1002 speaks to the access of LIS records. If it doesn’t, we must revert back the GRAMA’s provisions to assess whether Petitioner may access the protected record.
Section 80-2-1002(4) reiterates the GRAMA in classifying information and records contained in the LIS as “protected” for purposes of records requests. But the statute also conflicts with the GRAMA in limiting who may access those protected records and information. Where the GRAMA lists certain individuals and entities under Section 202(4) that may access a “protected” record, Section 80-2-1002(4)(b) holds its own narrow list of individuals and entities. Because the list in Section 1002(4)(b) conflicts with the GRAMA’s list, we look to Section 1002(4)(b) for whether Petitioner may access the LIS records. See Bryner, 2015 UT App 131, ¶29.
Section 1002(4)(b) states that LIS records are accessible to only those listed within its subsections. In turn, Subsection (4)(b)(vi) includes “the department or another person, as provided in this chapter” as able to access those records. Utah Code § 80-2-1002(4)(b)(vi). Thus, we now must look to the records provision – Section 1005 – of the Chapter to determine who “another person” may be under Section 80-2.
The Respondent’s records and their access are governed by Section 80-2-1005 which states in pertinent part:
A report made under Part 6, Child Abuse and Neglect Reports, and any other information in the possession of the division obtained as a result of the report is a private, protected, or controlled record under [GRAMA], and may only be made available to: . . . (k) any individual identified in the report as a perpetrator or possible perpetrator of abuse or neglect, after being advised of the screening prohibition in Subsection (2). Utah Code § 80-2-1005(1)(k).
As the Respondent’s Notice of Agency Action indicated that it had supported findings of sexual abuse against him, Petitioner satisfies the identifying classification set forth in Subsection (1)(k). Additionally, Petitioner is the subject of the report he seeks, which satisfies the classification set forth in Subsection (1)(e). However, despite appearing to satisfy the statutory requirements to obtain access to LIS records, Section 1005 poses a more fundamental problem for Petitioner.
The Respondent argues that the statute’s use of the word “may” creates a permissive right for the Respondent in granting the requested report and associated records. That is, the Respondent reads the statute to mean that it “may” disclose the requested records to those listed within its subsections if, and only if, it chooses to. While we think it’s problematic that a governmental entity holds full discretion over whether it may disclose records to the list of individuals the statute prescribes, even when, say, the subject of a record or parent of a victim requests their own records, we cannot disagree. The plain language of the statute seems to grant the Respondent that very choice. As strange as it is that the subject of a record or parent of a victim has no statutory right to records concerning them and is at the mercy of the Respondent’s choice to release them, that is what the legislature enacted. Accordingly, because Petitioner’s rights to access the records that he is the subject of are subordinate to the Respondent’s statutory discretion to permit the records’ disclosure, we are left to conclude that only a court order can grant Petitioner the records he seeks. See Utah Code § 63G-2-202(4)(c)(i).
ORDER
THEREFORE, because the records are properly classified as “protected” and only a court can compel the Respondent to order their disclosure, Petitioner’s appeal is hereby DENIED.
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).
Entered this 30 day of January 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS, Petitioner, v.
UNIFIED POLICE, Respondent.
DECISION AND ORDER
Case No. 22-17
On May 19, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. The Committee voted unanimously to continue the hearing until the next available hearing date to allow the Committee to review the body camera videos in camera.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, is hereby CONTINUED.
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).
Entered this 31 day of May 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NATE CARLISLE on behalf of KSTU-FOX 13 UTAH, Petitioner, v.
SALT LAKE COUNTY DISTRICT ATTORNEY’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 22-47
By this appeal, Petitioner, Nate Carlisle on behalf of KSTU-Fox 13 Utah, requests access to records allegedly held by Respondent, the Salt Lake County County District Attorney’s Office.
FACTS
On or about March 31, 2022, Mr. Carlisle, an investigative reporter with KSTU-Fox 13 Utah (“Petitioner”), filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested any statement, and recorded interviews given and had by Mamie Reeder in conjunction with two cases prosecuted by the Salt Lake County District Attorney’s Office (“DA”): State v. Wellen, case no. 181905553, and State v. Malachowski, case no. 181903984. In a response dated April 14, 2022, the DA denied the request stating:
“[y]our request is denied because potentially responsive records contain information that was the subject of, quoted, or otherwise referenced in court documents and hearings that were ordered protected by the Third District Court in case no. 181903984 to prohibit the release of information. In addition, the records you seek contain information about the private and business affairs of various individuals.”
Petitioner appealed the denial to the DA’s Chief Administrative Officer (“CAO”), Megan Hillyard, on June 24, 2022. Ms. Hillyard failed to respond to the appeal within ten business days as required by Utah Code § 63G-2-401(5)(b)(i), and in a belated email affirmed that her lack of timely response constitutes a denial of his appeal.
Petitioner then filed this appeal with the State Records Committee (“Committee”). On October 13, 2022, the Committee held a hearing. At the hearing, the Committee considered the written materials and oral arguments of the parties. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
The DA and its CAO had denied Petitioner’s requests, essentially, for two reasons: (1) The records were protected by court order; and (2) The DA properly classified the information as private under the GRAMA. We address each in turn.
1. Records Protected by Court Order
Utah Code § 63G-2-201(1)(a) allows a person to inspect a public record free of charge. The GRAMA then lays out a framework that establishes whether a record is public, and able to be inspected if at all. In addition to directly defining what a “public record” is, the statutory scheme adds further clarity by establishing what it is not: “The following records are not public: a record that is private, controlled, or protected . . . and a record to which access is restricted pursuant to court rule. . . .” Utah Code § 63G-2-201(3)(a)-(b). Thus, when a court rules that a record is “private,” the GRAMA defers to the court for not just its classification, but also its release.
Under the GRAMA, “the disclosure of a record to which access is governed or limited pursuant to court rule . . . is governed by the specific provisions of that . . . rule.” Utah Code § 63G-2-201(6)(a). In this matter, Petitioner requested records that concerned two cases the DA was prosecuting. On March 23, 2019, Third District Court Judge Kara Pettit ordered the records at issue here to be private. Because the records were classified as private by court rule, the GRAMA requires disclosure to also be governed by the court. Consequently, Petitioner’s request for the sought-after records must be directed to the court and made in accordance with the Utah Code of Judicial Administration and Utah Rules of Civil Procedure as they pertain to requesting access to court records associated with a case. Thus, under § 201(6)(a), the Committee must defer to the court.
2. Records Classified as Private by the DA
Petitioner further sought any records related to the above cases that were not under the court’s protection but in the DA’s possession. The DA has maintained that all responsive records in its possession are the source material for the motions, court papers, and transcripts that are covered by the court’s orders. Therefore, the DA argues, the information it possesses is the same information Judge Pettit classified as private.
The Committee can neither confirm nor reject the DA’s position. Even if the Committee examined the responsive records in the DA’s possession and determined that the DA erred in classifying them as private, we still could not order their disclosure to Petitioner without verifying that the records do not fall under the umbrella of the court’s orders. That is, without being able to view the records under Judge Pettit’s control and compare them to the records the DA possesses, the Committee has no way of knowing whether the DA’s records fall outside the purview of the court’s orders and may be subject to disclosure. As a result, this Committee cannot venture to investigate responsive documents held by the DA until Petitioner successfully moves the court to allow this Committee to examine the records ordered private.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nate Carlisle, on behalf of KSTU-Fox 13 Utah, is hereby DENIED.
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).
Entered this 24 day of October 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
",Denied,2022-10-24T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
LOGAN CITY, Respondent.
DECISION AND ORDER
Case No. 23-12
By this appeal, Brady Eames (“Petitioner”), requests a fee waiver for records he requested from Logan City (“Respondent”).
FACTS
On September 21, 2022, Petitioner submitted a records request to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested numerous records in connection to the construction of the Logan City Plaza & Event Stage. These requests included such things as the general contract awarded to the construction company, proof of liability and workers compensation insurance provided by the construction company, receipt of donated private funds for the project, documentation of the use of public funds to compensate the construction company, and several other records. Petitioner requested a fee waiver for the request, stating that “[r]eleasing the record primarily benefits the public.”
Respondent issued a response on September 26, 2022, approving the disclosure of the records requested but denying the request for a fee waiver. Respondent informed Petitioner that the total staff time to complete the request would be 3.5 hours, and the cost charged to petitioner would be $15.00 per hour for a total of $52.50.
Petitioner appealed Respondent’s decision on September 27, 2022, to Respondent’s chief administrative officer (“CAO”), arguing that Respondent is mandated by law to keep copies of the records at the office of the Recorder where they can be made available for inspection without charge during regular business hours. He also argued that because there is no published fee schedule for such records requests, the fee Respondent charged is improper. However, on September 28, 2022, Respondent’s CAO responded and denied the appeal. The CAO argued that Respondent is allowed to charge a reasonable fee under Section 63G-2-203.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On March 16, 2023, the Committee held a hearing during which the parties were allowed to participate. However, only Respondent attended the hearing. As neither party sought a continuance or default order against Petitioner, the Committee moved forward with the hearing considering all written materials, arguments, and evidence presented to the Committee. The Committee now issues the following Decision and Order.
ISSUES FOR REVIEW
1. Was Respondent’s denial of the request for a fee waiver reasonable under the circumstances?
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, under certain conditions, a governmental entity may charge a reasonable fee to cover the entity’s “actual cost” of providing a record. Utah Code § 63G-2-203(1)(a). In allowing an entity to charge a fee, the GRAMA provides that “actual costs” may include, among other things, the cost of staff time for search, retrieval, and other administrative costs. Utah Code § 63G-2-203(2)(a)(i)-(ii). However, the statute also encourages the governmental entity to fulfill the request without charge if it determines that releasing the records primarily benefits the public rather than the requester, the requester is the subject of the record, or the requester’s legal rights are directly implicated by the records and the requester is impecunious. Utah Code § 63G-2-203(4)(a)-(c).
When assessing fee waiver denials, our Utah Supreme Court has given clear guidance that the main question for review is whether the governmental entity’s decision to deny the fee waiver request was reasonable. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52, 435 P.3d 179. To make that determination, we must “view the decision in the context of the governing statute,” which means “assessing whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver.” Id. at ¶53 (citing Utah Code § 63G-2-203(4)). Additionally, we are to consider any other evidence we find “relevant to the reasonableness of the denial.” Id. at ¶54.
In Petitioner’s written appeal, he argues that because the records he seeks are classified as public, he should be able to view them free of charge at the city recorder’s office. However, Petitioner ignores the fact that his request was for ten records that each could contain numerous documents. In addition, Respondent states that to fulfill the request, Respondent will have to compile the requested records in a form other than that it normally maintains. That is, Respondent’s staff will have to compile, format, and tailor the documents into an “organization or media” since the documents are not all kept together in a single file within Respondent’s various city offices. Instead, the responsive documents may be held in various formats within Respondent’s different departments. For the search efforts and time to review and compile the records, Respondent charged a modest fee of $52.50 which represents 3.5 hours of staff time with the first quarter-hour waived in accordance with Utah Code § 63G-2-203(5)(b)(iii).
In Petitioner’s initial GRAMA request, he offers no support for his claim that the records benefit the public. Such a conclusive assertion without evidence or support is not self-proving. Where Petitioner had the opportunity to develop his arguments more fully before submitting his appeal to the Committee and chose not to, as well as the opportunity to attend his own hearing and present his reasoning and argument but also chose not to, the Committee rejects his claim. Further, nothing in his appeal shows that he is the subject of the record or that his rights are directly implicated by the information he seeks. Accordingly, Petitioner does not satisfy the fee waiver requirements set forth in Subsection 63G-2-203(4)(a)-(c). Consequently, we find that Respondent’s decision to deny the fee waiver request was reasonable.
ORDER
THEREFORE, because of the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 27 day of March 2023.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
IAN COOPERSTEIN, Petitioner, v.
UNIVERSITY OF UTAH, Respondent,
DECISION AND ORDER
Case No. 24-13
By this appeal, Ian Cooperstein (“Petitioner”), requests records allegedly held by University of Utah (“Respondent”).
FACTS
This appeal stems from a record request Petitioner made on August 2, 2020 and eventually found itself on appeal before this Committee. See Cooperstein v. University of Utah, Decision and Order no. 23-35, Utah State Records Committee (entered Aug. 1, 2023). In that case, we determined that the requested records were subject to disclosure under the Government Records Access and Management Act (“GRAMA”). During the hearing, we found that while the records were subject to disclosure, redactions could be made to protect personal privacy pursuant to Utah Code § 63G-2-302.[1] To comply with the Committee’s decision, the Respondent has since provided Petitioner with copies of all responsive records with redactions that protect information considered “private” under Utah Code § 63G-2-302(2)(d).
On September 26, 2023, Petitioner appealed the response to the Respondent’s chief administrative officer (“CAO”). The CAO affirmed the Respondent’s response. Petitioner has now appealed the denial to the State Records Committee (“Committee”). On February 15, 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 CAO properly classified the records as private, and if so, whether the interests favoring disclosure outweighs those favoring restriction.
STATEMENT OF REASONS FOR DECISION
I. Records Classification
GRAMA states 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 pursuant to Section 63G-2-305 is not a public record subject to disclosure. Utah Code § 63G-2-201(3)(a). A record is private if its disclosure would constitute “an unwarranted invasion of personal privacy.” Utah Code § 63G-2-302(2)(d). If a record contains such private information, then disclosure may be made only if the various interests favoring disclosure are at least equal to the interests favoring restriction. Utah Code § 63G-2-403(11)(b).
At the hearing, we moved to review the disputed record in camera. See Utah Code § 63G-2-403(9)(a)(ii). Upon doing so, we find that the records do in fact contain personal private information of other individuals. As a result, we find that the records are properly classified.
With that in mind, we turn to the interests. Records classified as private under Subsection 302(2)(d) raise sensitive and serious considerations. The statute allows invading an individual’s personal privacy if the invasion is warranted. We know that Petitioner is potentially pursuing some type of legal or administrative action against the Respondent as a result of his employment termination. His interests in the records are connected to that potential action. However, we don’t find that interest to equate or exceed the policy protection GRAMA holds in guarding an individual’s personal privacy. As a result, the withheld information may remain restricted.
II. The Respondent’s Search Efforts
Upon receiving a records request, “[a] governmental entity shall conduct a reasonable search for a requested record.” Utah Code § 63G-2-201(7)(b). If the requester petitions this Committee to review the adequacy of the search, the burden is initially on the government to show “by a preponderance of the evidence that its search for the requested records was reasonable.” Utah Administrative Code R35-1-3(1)(a). If the government can show that its search was reasonable, then the burden shifts to the petitioner to show “by a preponderance of the evidence that the search efforts were not reasonable.” Utah Administrative Code R35-1-3(1)(b).
The correspondences received appear to be incomplete. That is, the initial record produced shows indication that prior communications between Ms. Bohlig and Ms. Dahlman occurred. The Respondent testified that it searched Ms. Bohlig’s University email account but not her gmail account. The Respondent testified that gmail accounts were not part of the request and that it couldn’t compel a former employee to search through and turn over emails from a personal account.
We disagree with the Respondent’s claim. While Petitioner may not have specifically requested emails from Ms. Bohlig’s gmail account, he did request “all communication” the two women had about him from 2018 through 2019. Cooperstein v. University of Utah, Decision and Order no. 23-35, Utah State Records Committee (entered Aug. 1, 2023). “All communications” would necessarily include the communications that occurred through gmail and any other personal account or device. While it may be true that the Respondent cannot compel production from a former employee, we find that not making the attempt fails the reasonable search standard. Consequently, we find that the Respondent’s search efforts were not reasonable and that it must perform a new search while bearing in mind that this Committee has ruled that public business conducted on personal devices create public records. See McConnehey v. Jordan School District, Decision and Order no. 23-11, Utah State Records Committee (entered Mar. 27, 2023).
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED in part and DENIED in part. In accordance with this Decision, the Respondent shall perform a new search for responsive records.
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).
Entered this 26 day of February 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
1. In the original ruling, we omitted the order to allow for redactions. Upon reviewing the meeting minutes and notes, we found that the motion that carried did include allowing the Respondent to redact the records. In conjunction with this Decision and Order, we also issue an amended Decision and Order for case no. 23-35 to reflect the permissibility of redactions.
",Partially Granted,2024-02-26T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SHAWN HERRING, Petitioner, v.
VINEYARD CITY, Respondent.
DECISION AND ORDER
Case No. 22-59
By this appeal, Jeffrey Wetsel (“Petitioner”), requests a fee waiver and records allegedly held by Vineyard City (“Respondent”).
FACTS
On January 28, 2022, Petitioner submitted a records request to Respondent under the Government Records Access and Management Act (“GRAMA”) seeking “all records, public meeting notices, agendas, minutes, emails, documents, texts, responses and submissions, official letters and any communications regarding any proposals, requests, authorizations, letters of intent, contracts, planning, or future plans between certain named individuals from August 2017 to present. The individuals listed for those records and communications were Vineyard City’s Mayor, former City Manager, current City Manager, Community Development Director, Councilmembers, employees, as well as Lake Restoration Solutions, LLC and its employees, Sage Solutions, and the Utah Lake Commission executive director and board members. Petitioner then made a second GRAMA request on or around February 10, 2022, for the same records dating back to March 2015.
On April 4, 2022, Respondent notified Petitioner that certain records responsive to his request were made available to him through a personalized Dropbox link, but other records he requested would not be disclosed. Specifically, Respondent denied disclosure of the following records.
For not being public records under Utah Code § 63G-2-103, the following were denied:
1. HB272 Draft – letter 2018, and
2. Draft letter from Vineyard City to Utah Lake Commission.
For being classified as “protected” under Utah Code § 63G-2-305, the following were denied:
1. Emails to Respondent’s attorney regarding contracts; and
2. Emails to Respondent regarding draft bills that were deemed protected by the sender.
For being classified as “private” under Utah Code § 63G-2-302, the following was denied:
1. Sage Government Solutions W-9.
And the following was provided but with certain redactions:
1. “Sullivan’s comments to Amber with personal information redacted.” (Respondent’s Response Letter to Petitioner, April 4, 2022.)
On April 29, 2022, Petitioner appealed the partial denial to Respondent’s chief administrative officer (“CAO”), Ezra Nair, the City Manager. Mr. Nair upheld the partial denial, explaining that the search for records was extensive and the withheld records were legally justifiable.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 15, 2022, 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.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, this right does not go unqualified. Section 305 of the code provides protection for numerous types of records. Those protections pertinent to this case are commercial information or nonindividual financial information (with certain conditions), records subject to attorney-client privilege, preliminary drafts not classified as public, and legislative records that would reveal a particular legislator’s contemplated legislation. See Utah Code § 63G-2-305(2), (17), (22), & (20). This Committee may privately examine records in camera to determine whether the governmental entity correctly classified the records as protected under the GRAMA or not. Utah Code § 63G-2-403(9)(a)(ii). If the Committee finds that a record is incorrectly classified under any provision of the GRAMA, we hold statutory authority to reassign records’ classification. Utah Code § 63G-2-502(2)(b).
In this case, Respondent classified the following records accordingly:
1. Under Section 63G-2-103, Respondent determined that the HB272 Draft – letter 2018, and the draft letter from Vineyard City to Utah Lake Commission were not public records by definition and, therefore, not subject to the GRAMA.
2. Under Section 63G-2-305, Respondent determined that Emails to Respondent’s attorney regarding contracts, and the emails to Respondent regarding draft bills were “protected” records.
3. Under Section 63G-2-302, Respondent determined that the Sage Government Solutions W-9 was a “private” record.
By motion and vote, the Committee reviewed the disputed records in camera. Upon a thorough examination of the records, we find that the HB272 draft letter, the draft letter from Respondent to Utah Lake Commission, and the W-9 are incorrectly classified. The proper classification for these records is “protected” under Section 63G-2-305(20), -305(22), and -305(2), respectively. In determining this reclassification, the Committee analyzed Respondent’s reasoning for the classifications it assigned, but ultimately decided that the interests being protected warranted the reassignment. See Utah Code § 63G-2-306(1).
Upon properly classifying the records as “protected,” we may analyze the mechanisms for their disclosure. The disclosure of protected records is governed by Section 63G-2-202(4), which, in essence, requires certain releases or a court order to release the records. Petitioner has not provided any such instruments. Therefore, it falls on this Committee to determine which records may be disclosed.
Upon our in camera review of the disputed records, and the weighing of the interests involved, we find that some of the records must be relieved of restriction and delivered to Petitioner in accordance with the Order set forth below.
ORDER
THEREFORE, for the forgoing reasons, Petitioner’s appeal is GRANTED in part and DENIED in part according to the following:
1. Respondent shall release the Government Solutions W-9 with only the EIN redacted.
2. Respondent shall release the email correspondence with Union Pacific (Bates stamp 90) but may withhold the attachment.
3. All other disputed records may remain restricted and protected.
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).
Entered this 27th day of December 2022
BY THE STATE RECORDS COMMITTEE
_________________________________________
NANCY DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COREY COLEMAN, Petitioner, v.
VERNAL CITY, Respondent,
DECISION AND ORDER
Case No. 23-06
By this appeal, Corey Coleman (“Petitioner”), requests records allegedly held by Vernal City (“Respondent”).
FACTS
On June 27, 2022, Petitioner, a former employee of Respondent, submitted a request to his former employer for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the timecards of Matt Tate, a current employee of Respondent and former associate of Petitioner, for the date range of November 1, 2021 through February 1, 2022.
In response, Respondent informed Petitioner that only an employee’s name, gender, gross compensation, job title, job description, business address, business email address, business telephone number, number of hours worked per pay period, and dates of employment were considered public record under the GRAMA. The records officer delivered Mr. Tate’s payroll history for the requested dates showing the total hours worked and the gross compensation for each pay period. However, because the actual timecards contained information that fell outside of the GRAMA’s public records provision, such as specific dates where Mr. Tate took vacation and sick leave, as well as other personal information, the records officer classified the actual timecards as “private” under the GRAMA and withheld them. Petitioner appealed this response to Respondent’s chief administrative officer, who upheld the decision.
During the pendency of this appeal, Respondent offered Petitioner timecards but with redactions that made visible only the total hours worked per pay period. Petitioner declined this offer and maintained his original records request: Mr. Tate’s unredacted timecards for the specified timeframe that showed the exact dates he worked, the number of hours he worked per day, and the time he took off from work due to vacation and sick leave. The parties failed to reach an agreement.
Petitioner now appeals to the State Records Committee (“Committee”), challenging Respondent’s decision. On February 16, 2023, 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.
STATEMENT OF REASONS FOR DECISION
This appeal presents the Committee with the question of whether a Mr. Tate’s timecards are subject to disclosure under the GRAMA, and what role the redactions play in their disclosure.
The GRAMA maintains 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). Thus, properly determining whether a record is a “public” record or not is dispositive. For records concerning government employees, Section 301(2)(b) provides that “[t]he following records are public except to the extent they contain information expressly permitted to be treated as confidential under the provisions of Subsections 63G-2-201(3)(b) and (6)(a): . . . (b) the name, gender, gross compensation, job title, job description, business address, business email address, business telephone number, number of hours worked per pay period, dates of employment, . . . .” Utah Code § 63G-2-301(2)(b). However, notwithstanding that employment information being a public record, those records may be restricted if it is properly classified as a “private” record. Utah Code § 63G-2-201(5)(a). In the event that a record is properly classified as “private,” the record may be disclosed if “the interests favoring access are greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-201(5)(b).
At the hearing, the Committee voted to view the unredacted timecards in camera in order to assess whether the redactions were legally proper. In seeing the information Respondent redacted, we now analyze the propriety of the redactions.
Section 301(2)(b) is one of few provisions within the GRAMA that speaks directly to records concerning a government employee. Pertinent to the case before us, that section states that the “number of hours worked per pay period” are public records “except to the extent they contain information expressly permitted to be treated confidentially under the provisions of Subsections 63G-2-201(3)(b) and (6)(a).” Utah Code § 63G-2-301(2). In turn, Subsections 201(3)(b) and (6)(a) provide that records restricted pursuant to court rule or other statutes or regulations are not public records and may be disclosed only in accordance with those governing court rules, statutes, or regulations. We are satisfied that no rules or laws pertain to the timecards before us outside of the GRAMA, and therefore find that the total hours Mr. Tate worked per pay period is a public record under Subsection 301(2)(b).
However, Petitioner argues that, despite their absence from Subsection 301(2)(b), by virtue of Mr. Tate’s status as a government employee, the exact dates Mr. Tate worked, the number of hours he worked on those dates, and the time off from work he took within the requested period – the exact records he seeks – are also public records under the GRAMA. But Respondent disputes that notion, arguing that such information is private. [1]
In determining whether a government employee’s timecard showing the days the employee worked each pay period, the number of hours worked per day, and the time taken off from work is a public record, we look closely at the legislative intent behind the GRAMA. As we have already noted, the GRAMA does specifically address government employees’ information and expressly outlines which of that information is public. See Utah Code § 63G-2-301(2)(b). We find this to be highly persuasive in our statutory interpretation.
The law presumes that when it comes to the language of a statute, “absent a contrary indication, that the legislature used each word advisedly.” McKitrick v. Gibson, 2021 UT 48, ¶ 37 (citing Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14. In addition, the canon of construction, expression unius est exclusion alterious – a long used legal tool in interpreting statutes – holds that “to express or include one thing implies the exclusion of the other, or of the alternative.” Expressio unius est exclusion alterius, BLACK’S LAW DICTIONARY (11th ed. 2019); see also Carrier v. Salt Lake County, 2016 UT 48, ¶ 10 (“we ‘presume[ ] that the expression of one [term] should be interpreted as the exclusion of another.’ We therefore seek to give effect to omissions in statutory language by presuming all omissions to be purposeful.” (Citing Carrier v. Salt Lake Cnty., 2004 UT 98, ¶ 30.)) Thus, in determining what constitutes a public record in the context of government employment, because the legislature deliberately expressed numerous items in Subsection 301(2)(b), but omitted dates worked, hours per day worked, and time taken off from work, we conclude that these omissions were deliberate and not intended to be public records.
In determining that the records Petitioner seeks are not public records per se under Subsection 301(2)(b), and seeing that dates worked, hours worked per day, and time taken off from work reveals an employee’s routine schedule away from home and his time being ill, we further conclude that to disclose such records does reach too far across the border of public employment and private matters. We find that the dates Mr. Tate worked, hours he worked per day, and his absences from work are all private information and to reveal those records under a GRAMA request would invade his privacy without a justifiable reason. To this, we have heard no evidence to persuade us that the interests favoring disclosing this personal information is equal to or greater than the interest in not disclosing it. Consequently, we determine that the redacted information on the time cards was properly classified as “private” under the GRAMA, and those redacted cards do satisfy Respondent’s duty under the law.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED. The information redacted from the timecards is proper under the GRAMA, and disclosing the redacted timecards satisfies Respondent’s duties under the Government Records Access and Management Act.
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).
Entered this 28 day of February 2023
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
1. Respondent also raised the defense that due to a current criminal case against Petitioner, releasing detailed information about Mr. Tate’s work hours and time off could jeopardize his safety. However, despite this argument being included in Respondent’s Statement of Facts it provided to the Committee, no direct evidence was provided during the hearing to show that Mr. Tate is an “at risk government employee” under Section 63G-2-303(1)(a). Additionally, no direct evidence was offered to show that Mr. Tate’s safety is at issue if his work hours and time off were to be disclosed. Accordingly, we set aside Respondent’s argument on this point and do not consider it.
",Denied,2023-02-28T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
THE OFFICE OF THE UTAH ATTORNEY GENERAL, Respondent.
DECISION AND ORDER
Case No. 23-14
By this appeal, Paul Amann (“Petitioner”), requests a fee waiver for records held by the Office of the Utah Attorney General (“Respondent”).
FACTS
On September 23, 2022, Petitioner submitted a records request to the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner sought all records concerning the Respondent’s disciplinary action taken against its employees from January 2014 through the date of the records request. Although his request applied to all of the Respondent’s employees, Petitioner named six particular employees whose disciplinary records he specifically desired.
The Respondent issued a response on October 7, 2022, stating that fulfilling the request would take between 20 to 30 hours of staff time to complete. Additionally, because of the records’ sensitive nature, an attorney or senior HR official would need to conduct the search and review the records for responsiveness. The Respondent informed Petitioner that because of the efforts required to process and fulfill the request, it would charge Petitioner a rate of $30.00 per hour to compile and deliver the records, totaling a minimum of $600.00. The Respondent requested that the fee be deposited prior to processing the request pursuant to the GRAMA.
Petitioner appealed to the Respondent’s chief administrative officer (“CAO”), stating that he has identified names of individuals whose disciplinary records he seeks and that an HR employee of the Respondent could likely find all responsive records in a much shorter time than 20 hours. However, the CAO denied the appeal because even though Petitioner provided the names of several specific employees, his request was not limited to only those he named. For this, the Respondent invited Petitioner to narrow his search for much faster processing.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision and requesting all records without incurring a fee. On March 16, 2023, 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
1. May Petitioner be granted a fee waiver for his request under the circumstances?
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, under certain conditions, a governmental entity may charge a reasonable fee to cover the entity’s “actual cost” of providing a record. Utah Code § 63G-2-203(1)(a). In allowing an entity to charge a fee, the GRAMA provides that “actual costs” may include, among other things, the cost of staff time for search, retrieval, and other administrative costs. Utah Code § 63G-2-203(2)(a)(i)-(ii). However, the statute also encourages the governmental entity to fulfill the request without charge if it determines that releasing the records primarily benefits the public rather than the requester, the requester is the subject of the record, or the requester’s legal rights are directly implicated by the records and the requester is impecunious. Utah Code § 63G-2-203(4)(a)-(c).
When assessing fee waiver denials, our Utah Supreme Court has given clear guidance that the main question for review is whether the governmental entity’s decision to deny the fee waiver request was reasonable. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52, 435 P.3d 179. To make that determination, we must “view the decision in the context of the governing statute,” which means “assessing whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver.” Id. at ¶53 (citing Utah Code § 63G-2-203(4)). Additionally, we are to consider any other evidence we find “relevant to the reasonableness of the denial.” Id. at ¶54.
In this case, Petitioner has not shown that he meets any of Subsection 203(4)’s fee waiver criteria. He has not demonstrated that releasing the records would primarily benefit the public, that he is the subject of the records, nor that he is impecunious and his legal rights are directly implicated by the records. The only rationale for Petitioner’s argument that he should receive the records without a fee is his assertion that the records could be produced in much less than 20 hours. To support his claim, Petitioner states only that the head of the Respondent’s HR could find and produce the records within minutes. He provides no reasoning or explanation as to how this claim is valid.
On the other hand, assuming Petitioner did satisfy the requirements for a fee waiver, the Respondent argues that due to the sensitive nature of employment personnel files, an attorney or senior HR employee would need to review each file for disciplinary actions since there is not a single search mechanism or repository for only employees who have had sustained disciplinary actions against them. Furthermore, for files with disciplinary actions, the Respondent would need to screen the record to determine if all administrative appeals have been exhausted and the underlying charges for the discipline sustained because only those records are accessible under the GRAMA. Utah Code § 63G-2-301(3)(o). Additionally, there could be private or protected information within the responsive records that would need to be analyzed and screened for confidentiality and redacted accordingly. See id. Finally, this search and screening effort would be performed to nearly a decade’s worth of records.
Where Petitioner has not shown that he satisfies the requirements for a fee waiver under the law, indeed he has not offered anything other than an unsupported conclusive claim about a single HR employee’s ability to retrieve the records he seeks, we find that Respondent’s estimated timeframe for the search efforts and imposed fee are reasonable under the circumstances.
ORDER
THEREFORE, because of the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 27 day of March 2023.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANNIE KNOX, Petitioner, vs.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent,
DECISION AND ORDER
Case No. 23-22
By this appeal, KSL reporter, Annie Knox (“Petitioner”), requests records allegedly held by the Utah Attorney General’s Office (“Respondent”).
FACTS
On November 14, 2022, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking “AG Reyes’ weekly schedule/calendar for August 2022 to date.”
On November 18, 2022, the Respondent denied the request, stating that: “The Office does not maintain an official schedule for the Attorney General. Additionally, Utah Code §63G-2-103(22)(b)(ix) provides that ‘a daily calendar or other personal note prepared by the originator for the originator’s personal use or for the personal use of an individual for whom the originator is working’ is not a ‘record’ subject to GRAMA. Accordingly, the Office does not maintain any records responsive to your request.”
Petitioner appealed to Respondent’s chief administrative officer (“CAO”) on December 16, 2022, challenging the Respondent’s determination that the requested calendar is not a record subject to the GRAMA. Petitioner also clarified that she is not seeking records about Attorney General Reyes’s personal time or schedule, rather only the calendar “pertaining to his schedule and duties as a public official, as maintained and used as a reference by both Reyes and his staff.” However, on December 23, 2022, the Respondent’s CAO denied Petitioner’s appeal arguing that the AGO does not maintain a calendar pertaining to [Attorney General Reyes’s] schedule and duties as a public official, and although Mr. Reyes does maintain a personal calendar, that calendar is expressly excluded from the definition of a record under Utah Code §63G-2-103(22)(b)(ix) because it is primarily prepared by Mr. Reyes for his personal use. The CAO explained that to the extent that select staff are able to view or modify (i.e. originate) that personal calendar, they are only doing so for the personal use of Mr. Reyes, for whom they are working.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On May 18, 2023, 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
We must determine whether Attorney General Reyes’s calendar is a public record under the GRAMA and if it must be disclosed.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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). Thus, the right to inspect and take a copy of the requested document necessarily depends on the document being a “public record.” The GRAMA defines a “public record” as “a record that is not private, controlled, or protected and that is not exempt from disclosure as provided in Subsection 63G-2-201(3)(b).” Utah Code § 63G-2-103(23). In turn, “record” holds its own definition. See Utah Code § 63G-2-103(25)(a). Relevant to our inquiry is the Code’s express provision of what a “record” is not: “a daily calendar or other personal note prepared by the originator for the originator’s personal use or for the personal use of an individual for whom the originator is working.” Utah Code § 63G-2-103(25)(b)(ix). Thus, if Attorney General Reyes’s calendar is not a record under this definition, it is therefore not a public record subject to the GRAMA’s requirements and the Respondent has no obligation to disclose it.
The Respondent argues that Attorney General Reyes’s calendar fits squarely into the exemption that Subsection 103(25)(b)(ix) provides. The Respondent supports this argument with several assertions such as the plain text of the statute; that, in addition to his official duties, the contents within the calendar hold his personal schedule; and the policies behind the statute, such as not requiring officials to burden themselves with having to maintain multiple calendars (e.g., a calendar for their official duties, their personal obligations, their political events, etc.). In other words, according to the Respondent, if a daily calendar was a record under the GRAMA, then public officials would have to manage multiple calendars to keep their private affairs private while allowing other calendars to be public. Further, the Respondent argues that government employees and public officials are allowed to use their official devices for limited personal use which would include inputting personal events and appointments on a government calendar. And finally, perhaps the strongest policy argument the Respondent asserts is that by disclosing the daily calendar of a public official, the official’s routine meetings, schedule, and whereabouts will become known. Even if the records request is for only past events, revealing the official’s calendar can show a pattern of certain meeting places and times which could reveal where the official will likely be in the future. This, of course, creates a safety risk for the public official since their upcoming whereabouts can be reasonably anticipated.
We don’t disagree with the policies behind the legislature expressly omitting a daily calendar from the definition of a record. However, we don’t agree with the Respondent’s conclusion.
Subsection 103(25)(b)(ix) exempts “a daily calendar . . . prepared by the originator for the originator’s personal use . . .” Utah Code § 63G-2-103(25)(b)(ix) (emphasis added). We read this to mean that for a calendar to be exempt from the GRAMA, the calendar must be used entirely for private, non-work-related use. While Attorney General Reyes uses the calendar for his private events and appointments, that is not the calendar’s only use. He also uses it for official business and work-related items – items that concern the “public’s business” and are therefore subject to the GRAMA. See Utah Code § 63G-2-102(1)(a). As burdensome as it might be for a public official to juggle multiple calendars, many, if not most, do perform the feat for the exact reason we are hearing this appeal: The public has a right to know what their public officials are up to, especially in their official capacity of carrying out the public’s business. See generally Id. Thus, if there is a right to know, which even the Respondent conceded during its 5-minute rebuttal time[1], then it follows that the right to that information is subject to disclosure under the GRAMA. Therefore, because the public has the right to know their officials’ official duties and work-related activities, we are unmoved by arguments about the official’s need to be practical and more efficient by managing only one calendar. If a public official chooses to intertwine personal items with his government calendar, he must accept the obligation of transparency that goes with that.
With that said, we are sensitive to Attorney General Reyes’s safety and his personal privacy, but we don’t believe that sensitivity necessitates that we deny Petitioner’s appeal. The GRAMA accounts for records that contain both public and private information. For such records, the law requires the governmental entity to disclose the public information contained in the requested record and allows it to deny the information that is restricted. Utah Code § 63G-2-308(1)-(2). Because Attorney General Reyes’s calendar contains both public and private information, as well as information that implicates safety concerns, we find that the calendar must be disclosed to Petitioner, but in doing so, the Respondent may redact non-work-related items and the addresses of work-related appointments and meetings that Attorney General Reyes attended during the time period Petitioner requested.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is GRANTED. The Respondent is hereby ordered to disclose to Petitioner the daily calendar for Attorney General Reyes for the time period set forth in her initial GRAMA request. To protect his privacy and security, the Respondent may redact only the non-work-related items, as well as any addresses the calendar contains for work-related meetings and appointments.
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).
Entered this 26 day of May 2023
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee
1. “There’s no debating that it’s absolutely in the public interest for people to know exactly what their officials are doing in their official capacity.” Resp’t’s Rebuttal. (Respondent argued, however, that if public officials are not voluntarily transparent with their activities and schedules, then the public’s recourse is to vote the officials out of office. We don’t agree that the GRAMA deliberately defers to the threat of the ballot box as the only means the public has to obtain their officials’ calendars pertaining to official and work-related duties. If that were so, why wouldn’t the GRAMA defer to the ballot box for all records connected to elected officials?)
",Granted,2023-05-26T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NICHOLAS BENDER (on behalf of the Johnson family), Petitioner, vs
UINTAH SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 23-20
By this appeal Nicholas Bender (“Petitioner”), requests records allegedly held by Uintah School District (“Respondent”).
FACTS
On April 7, 2022, T.J., a student at Discovery Elementary School, suffered a devastating and tragic fall from the playground equipment while playing at recess. After falling and hitting his head, he was monitored by school staff for dizziness and other symptoms that might indicate a serious head injury. However, after reporting the incident to his mother, the staff ultimately found T.J. to be okay and allowed him to return to class and finish out the school day. Later, when T.J. was home, he lay down on the couch and became unresponsive. T.J. was rushed to the hospital where he was transferred to Primary Children’s Hospital for care. Doctors determined that his head injury was significant and ended up causing severe debilitation in T.J.’s motor and communicative abilities.
As counsel for T.J. and his parents, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”) on October 21, 2022. Specifically, Petitioner requested the following:
All (electronic and hard copy) documents, materials, records, photos, videos, recordings, communications, notes, incident reports, evaluations, and like records and information related to the playground incident involving [T.J.] at Discovery Elementary on April 7, 2022. This includes, but is not limited to: all information regarding the subject playground; all maintenance, repairs, or changes to the playground since the playground was installed; all information relating in any way to any investigation of the subject incident; all videos and photographs captured by all cameras of the subject incident and capturing any portion of the subject playground from 72 hours before the incident to 72 hours after the incident; all videos and photographs of alterations, repairs, or maintenance to the subject playground since April 7, 2022; all video and photographs of [T.J.] after the incident anywhere ion the school premises or elsewhere; all information related to all other incidents involving injuries sustained at playgrounds at Discovery Elementary and other playgrounds with Uintah School District.
Respondent responded to the GRAMA request on November 4, 2022, providing maintenance records for the Discovery Elementary playground (122 pages), student witness statements with student names redacted (4 pages), and maintenance records regarding other playgrounds of the Respondent’s that mention injuries (4 pages). However, based on its classification of the remaining records as “protected,” the Respondent declined to provide the following: (1) the Student Injury Report relating to the T.J.’s incident; (2) statements from staff gathered in investigating the accident, (3) the Risk Management investigation report, (4) email correspondence between the Respondent’s staff and Risk Management about responding to the family’s potential claim against the Respondent, and (5) Student Injury Reports relating to other student injuries occurring on the Respondent’s playgrounds. However, because T.J.’s father was the Respondent’s business administrator at the time, the Respondent allowed T.J.’s parents to view the student injury report on the condition that they could not make a copy of the report.
Petitioner appealed the Respondent’s partial denial to its chief administrative officer (“CAO”) on November 28, 2022, arguing the correctness of the decision. However, the CAO upheld the Respondent’s determination, concluding that the records the Respondent withheld fell under the protections of Utah Code §§ 63G-2-305(18) and (24), which protect records from disclosure that are prepared by or for various individuals in anticipation of litigation, or a judicial, quasi-judicial, or administrative proceeding[1], and records of investigations of loss occurrences that may be covered by the Risk Management Fund.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On May 18, 2023, 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
We are asked to review whether the documents are properly classified under Subsections 305(18) and (24) and, if so, whether the burden has been met to compel the records’ disclosure.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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). A government record is presumed to be public and able to be disclosed unless expressly restricted by statute. Utah Code § 63G-2-201(2). Thus, if a record is classified as protected under Section 63G-2-305, then its disclosure may be restricted. Utah Code § 63G-2-201(3)-(5). In pertinent part to this appeal, the following provisions of Section 305 hold that the following records are protected if properly classified by the governmental entity:
(18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding.
Utah Code § 63G-2-305(18).
And Subsection 305(24):
(24) records of investigations of loss occurrences and analyses of loss occurrences that may be covered by the Risk Management Fund, the Employers’ Reinsurance Fund, the Uninsured Employers’ Fund, or similar divisions in other governmental entities.
Utah Code § 63G-2-305(24).
Importantly, if a record is properly classified as protected under either Subsection (18) or (24), then the petitioner shoulders the burden of showing “by a preponderance of the evidence[ ] that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1).
Subsection 305(18) is intended to allow governmental entities to prepare for litigation or other complaints that require adjudication. Entities have an interest in preparing their reports and documents in preparation to defend themselves against legal claims. If those records were readily available to the public without qualification or restriction, then entities would be disadvantaged in preparing their defense. Thus, the GRAMA attempts to balance open record laws with protecting governmental entities’ efforts to prepare for judicial, quasi-judicial, or administrative adjudicative proceedings. In similar fashion, Subsection 305(24) is intended to protect records of investigations that pertain to loss occurrences covered by Risk Management.
Upon hearing the parties’ arguments, the Committee moved to view the records in camera to ascertain their nature and determine whether the classification was proper. See Utah Code § 63G-2-403(9)(a)(i)-(ii). In examining the records, we find that the records are properly classified under both Subsections 305(18) and 305(24). That is, the records at issue were prepared by employees or agents or the Respondent and were done so in anticipation of either a formal complaint against the Respondent or loss occurrence covered by Risk Management, or both.
With the classification established, we turn to Petitioner’s burden of proof to show that the public interest outweighs that of the Respondent’s interest to restrict disclosure in anticipation of pending litigation. Petitioner has produced little evidence to show that the various records surrounding T.J.’s personal and tragic accident trigger a general public interest. Petitioner argues that if the Respondent is allowed to deny records’ requests under Subsections 305(18) and (24) generally, then the intent of the GRAMA is “gutted” and school children and their parents will routinely be restricted from obtaining information about injuries sustained at school. But this is a policy argument; it is not evidence that releasing records relating specifically and only to T.J.’s injury furthers a public interest that outweighs the Respondent’s need to prepare for litigation or an administrative proceeding. The fact that Petitioner filed a “Notice of Claim” gave notice to the Respondent that litigation was possibly imminent, and, as a result, put the Respondent on notice that it must reasonably anticipate a lawsuit. For this, Subsections 305(18) and (24) are directly applicable as they protect the records when they are prepared in anticipation of litigation or loss occurrence investigations. With that said, however, we do see some exceptions where the records were prepared as a matter of course and before the Notice of Claim was filed. Because of that, we find that the following records must be disclosed:
1. Student Injury Report. Not only was this record prepared as routine procedure after a student injury, but the Respondent allowed T.J.’s parents to openly view it. We see no logical reason why a copy of this record cannot be disclosed.
2. Statements Made by Staff. Although the statements made by staff were gathered in the investigation, the statements themselves were made as a matter of course and not made for an investigation. Accordingly, these must be disclosed.
We find that the remaining records (the Risk Management report, email correspondences with Risk Management, and student injury analysis) are all properly classified and the evidence supporting the public interest for disclosure is not equal to or greater than the Respondent’s interest in restricting the records.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is GRANTED in part and DENIED in part according to the following: The Respondent is hereby ordered to disclose to Petitioner T.J.’s Student Injury Report and all statements made by staff relating to the accident. The remaining records may be withheld.
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).
Entered this 26 day of May 2023
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee
1. At some point, T.J.’s parents retained Petitioner as legal counsel. In an effort to preserve their ability to bring a claim against the Respondent, counsel filed a “Notice of Claim” with the court. Counsel then pursued the GRAMA request and appeals in order to obtain more factual information to potentially complete and file a formal claim.
",Partially Granted,2023-05-26T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH SYSTEM OF HIGHER EDUCATION, Respondent.
DECISION AND ORDER
Case No. 23-43
By this appeal Brady Eames, (“Petitioner”), requests a fee waiver and records allegedly held by Utah System of Higher Education (“USHE”) (“Respondent”).
FACTS
On April 19, 2023, Petitioner filed an expedited records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requests a fee waiver because the records primarily benefit the public. The Petitioner submitted multiple record requests comprised of the following:
1. Any and all documentation of the appointment or hiring of the following persons by Dave Woolstenhulme as his professional, legal, and administrative staff:
2. Any and all documentation of Dave Woolstenhulme, Commissioner of the Utah System of Higher Education, in which he made a determination or setting of the salary, retirement provisions and other benefits pertaining to each of the following persons:
3. Any and all of Geoffrey Landward’s final interpretations made with respect to the Utah Constitution-Article IV-Section 10, Utah Code 52-1-2(2) the Volker Opinion and Utah Code 76-8-203(1)(a) and the taking of the Constitutional oath by numerous individuals Petitioner named and the subscribing and filing of a duly attested and sealed Public Official Oath Form by those individuals before they each exercised, or attempted to exercise, the functions of a member of the USBE on July 1, 2020.
4. Geoffrey Landward’s correspondence in which he determined or stated the right of each of the individuals named [in item 3’s request] to violate Utah Constitution-Article IV-Section 10, Utah Code 52-1-2(2) and Utah Code 76-8-203(1)(a) by not taking the Constitutional oath and not subscribing and filing with the Utah Division of Archives and Records Services (“DARS”) a duly attested and sealed Public Official Oath Form before they each exercised, or attempted to exercise, the functions of a member of UBHE on July 1, 2020.
5. Any and all of Geoffey Landward’s final interpretations made with respect to the Utah Constitution-Article IV-Section 10, Utah Code 52-1-2(2) and Utah Code 76-8-203(1)(a) and the taking of the Constitutional oath by and the subscribing and filing of a duly attested and sealed Public Official Oath Form by Dave Woolstenhulme before he exercised, or attempted to exercise, the functions of the Commissioner on July 1, 2020.
6. Geoffrey Landward’s correspondence in which he determined or stated the right of Dave Woolstenhulme to disrespect and violate Utah Constitution-Article IV-Section 10, Utah Code 52-1-2(2), the Volker opinion and Utah Code 76-8-203(1) (a) by not taking the Constitutional oath and not subscribing and filing with the DARS a duly attested and sealed Public Official Oath Form before he exercised, or attempted to exercise, the functions of the Commissioner on July 1, 2020.
7. Any and all public notices, agendas, audio recordings, and approved written minutes pertaining to the meetings convened and conducted by the Council of Presidents.
8. Any and all of Geoffrey Landward’s final interpretations made with respect to UBHE Policy R150, the OPMA and the meetings of the Council of Presidents held as of and since July 1, 2020, to discuss, receive public comments about, deliberate and/or vote regarding the following public matters:
9. Geoffrey Landward’s correspondence in which he determined or stated the right of the Council of Presidents to not obey the OPMA when it holds meetings to discuss, receive public comments about, deliberate and/or vote regarding the public matters enumerated above in (8).
10. Any and all reports of performance evaluations of Dave Woolstenhulme as Commissioner which have been duly completed by the Executive Committee of the UBHE with respect to the following:
The Commissioner denied the requests on April 28, 2023, for the reasons below:
Mr. Eames’ appeal to Commissioner Woolstenhulme was denied pursuant to Utah Code §63G-2-401(5)(b)(ii).
Mr. Eames filed an appeal with the State Records Committee (“Committee”). On August 28, 2028, 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
We are asked to determine whether the records denial was appropriate on the grounds that (1) the Respondent performed an adequate search for the records; and (2) that the protective classification the Respondent assigned to the responsive records it found was correct and warranted the records’ restriction. If the protective classification is correct, we must then determine whether Petitioner’s interests are strong enough to compel disclosure.
STATEMENT OF REASONS FOR DECISION
The 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). When a record request is received by a governmental entity, it must perform a reasonable search for the record. Utah Code § 63G-2-(7)(b). If the governmental entity performs a reasonable search and the requested records are not found, the burden shifts back to Petitioner to show that the search efforts were not reasonable. Amann v. Office of the Utah Attorney General, State Records Committee, Decision and Order, no. 22-56 (entered Dec. 27, 2023). Only those records that are not private, controlled, or protected by Utah law are deemed public records to which the requestor may have received a copy. Utah Code § 63G-2-201(3)(a). If records are withheld because the governmental entity has properly classified them as “private,” under the GRAMA, then this Committee must weigh the various interests and public policies supporting disclosure against those favoring restriction and determine whether access is warranted.
A. The Respondent Performed a Reasonable Search
At the hearing, the Committee questioned the Respondent about its search efforts. Allison Adams, the Respondent’s general counsel testified that staff looked through the Office of Commissioner Files, as well as personally requested the Commissioner himself search his records for the requested items. Some responsive records were found and were classified as “private” under Section 63G-2-302, which we address below. However, to the remaining requested records, the Respondent claims it found no responsive records.
We find that given the nature of the requested records that didn’t turn up in the search efforts, the Respondent’s search efforts were reasonable. This is so, mainly because the requested records would’ve likely contained, at least to some degree, privileged information or communications. Ms. Adams testified that the search efforts encompassed those files where such privileged records would be kept, as well as the Commissioner’s own files. With no responsive items found, the burden shifts to Petitioner to show that the search efforts were not reasonable.
Throughout Petitioner’s presentation and argument to the Committee, he raised no issue about the adequacy of the Respondent’s search efforts. Therefore, he has not met his burden and we are left to conclude that the Respondent has satisfied its burden.
B. The Records Classified as Private Were Properly Classified and Withheld
Responsive records were found to request nos. 1 and 2 above. Essentially, those requests were for records that relate to the “appointment or hiring” of the board’s general counsel, executive assistant, and secretary, as well as the “determination or setting of [their] salary, retirement provisions and other benefits.”
The Respondent classified the records as “private” under Section 63G-2-302(2)(a), which classifies as private “records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, but not including records that are public under Subsection [-301(2)(b); or -301(3)(o)] or private under Subsection (1)(b)” Utah Code § 63G-2-302(2)(a).
The GRAMA addresses employment records rather directly. The Code expressly states that only the following employment related records are public under the GRAMA:
(2)(b) the name, gender, gross compensation, job title, job description, business address, business email address, business telephone number, number of hours worked per pay period, dates of employment, and relevant education, previous employment, and similar job qualifications of a current or former employee or officer of the governmental entity . . .
(3)(o) records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee if:
(i) the disciplinary action has been completed and all time periods for administrative appeal have expired; and
(ii) the charges on which the disciplinary action was based were sustained.
Utah Code §§ 63G-2-301(2)(b) & 3(o).
While those records listed in Subsections 301(2)(b) and (3)(o) are quite specific, that same specificity is not carried over to the list of employment related records classified as private under Section 302. Instead, Section 302(2)(a) gives a broad stroke of protection to “records concerning a current or former employee of, or applicant for employment with a governmental entity. . . .” Thus, according to the GRAMA, if an employment related record is not of those listed in Subsections 301(2)(b) or 3(o), then it cannot be a public record subject to disclosure due to the breadth of protective coverage the legislature created in Subsection 302(2)(a). Accordingly, we find that the employment related records Petitioner requested are classified correctly as private pursuant to Section 63G-2-302(2)(a).
C. The Interests Favoring Restriction Outweigh Those Favoring Disclosure
Upon establishing that the requested records are properly classified, we turn now to whether Petitioner’s interests outweigh the government’s interest in restricting access.
The GRAMA requires that, when a record is classified as private, this Committee must weigh “the various interests and public policies pertinent to the classification or nondisclosure” and “order the disclosure of information properly classified as private . . . if the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). The Utah Supreme Court has interpreted “public interest” to mean “the specific interests of the parties and particularized application of the relevant public policies at issue.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶19. That is, “the weighing analysis is improperly performed if it’s ‘focused on general policy concerns without discussing how those interests are specifically applied to the records at issue in [the] case.’” Amann v. Division of Risk Management, Utah State Records Committee, Decision and Order, no. 23-39 (entered Aug. 28, 2023) (quoting Schroeder, at ¶19).
Petitioner argued at the hearing that he has “the Constitutional right to use GRAMA as a tool to discover offenses against the administration of government and the abuse of public offices.” We agree that Petitioner has that right; however, that being the only interest he asserts in this request, we find it inadequate to defeat the public policies behind protecting government employees’ personnel records.
In the private sector, an employee’s personnel file is held confidential by the employer. Typically, that record is only discoverable through a court order. This, of course, is to protect the employee’s privacy and ensure he or she may work unencumbered by the worries that personal performance issues, disciplinary write-ups, and personal information could be readily known. The legislature has adopted that same policy in protecting public employees’ employment records while also satisfying the “GRAMA’s strong presumption in favor of public disclosure” in classifying some high-level records as public and readily discoverable. Schroeder, ¶55. To upset the legislature’s preferred balance on these types of records, Petitioner must assert interests stronger than merely attempting to discover offenses by public servants. Accordingly, we find that the interests favoring disclosure are not greater than or equal to those favoring restriction, and the records may therefore be withheld.
ORDER
THEREFORE, IT IS ORDERED THAT Petitioner’s appeal is hereby DENIED.
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).
Entered this 6 day of September 2023.
BY THE STATE RECORDS COMMITTEE
______________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LUIS SANCHEZ, Petitioner, vs
SALT LAKE CITY POLICE DEPARTMENT, Respondent
DECISION AND ORDER
Case No. 23-52
By this appeal Luis Sanchez (“Petitioner”), requests a fee waiver for requested records held by Salt Lake City Police Department (“Respondent”).
FACTS
On January 4, 2023, Petitioner filed a records request and fee waiver with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”).[1] Petitioner requested the fee waiver because he “works with MyDefenseGuide.org and other independent media organizations where the findings of these investigations will be released to the public.” According to Petitioner, “[t]his meets the requirement of [Utah Code} 63G-2-203(4), releasing the record primarily benefits the public rather than a person, and thus fees should be waived.”
As to the records, Petitioner requested the following:
1. All audio recordings, video recordings (including handheld cameras, body-worn cameras and any other video recordings), police reports, witness statements, and any and every other document and file created regarding the July 9, 2020, protest of Bernardo Palacios’ murder;
2. Video audit trail of all video evidence;
3. Names, ID numbers, and photographs of every other officer that responded or that was involved in the July 9, 2020, protest; and
4. I need all video footage to be identified with the name and ID number of the officer who recorded it.
After an initial email response on January 20th acknowledging receipt of the request, Respondent provided a detailed response to Petitioner on February 16, 2023. Paraphrasing the response, Respondent provided the following:
1. As to the request for names, ID numbers, and photographs of officers, the names and ID numbers can be obtained in the police report. As to the photographs of the officers, the request is denied because SLCPD doesn’t have a record containing photographs of all officers involved in the July 9, 2020 protest. In the event photographs do exist, SLCPD classified them as protected under Utah Code 63G-2-305(11), arguing that releasing the photographs would jeopardize the life and safety of an individual.
2. As to the remaining requests, filling the requests would take additional time and resources and would have to be produced in a rolling production. Because the remaining records are voluminous and the time to it will take staff to gather, review, and redact the records (if necessary) is excessive, the fee waiver request is denied. SLCPD is requiring a pre-payment $1,500.00 to fill the request.
On March 2, 2023, Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”). Specifically, Petitioner took issue with the amount of the fee, the decision to deny a fee waiver, and the protective classification of any photographs of police officers. On March 17, 2023, the CAO responded, affirming the denial. The CAO explained that even though the GRAMA “encourages” a governmental entity to waive a fee when the request would benefit the public, the entity is not required to do so. Because of the effort involved to fill the voluminous request, the CAO determined that denying the fee waiver was not unreasonable. Additionally, the CAO upheld the protective classification of any photographs of officers that were taken during the protest. The CAO stated that officers had received death threats due to the national unrest and the officers’ response to local protests. Additionally, the CAO found that Petitioner’s website has a ”Wall of Shame” and Respondent has a reasonable belief that at least some of the photographs might be posted on that portion of the site which would “substantially raise the likelihood that they would be subject to further threats from individuals upset about the protests and the City’s response.”
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On September 21, 2023, 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
We are asked to decide (1) whether the records classified as protected was correct; (2) if so, whether those records may still be released; and (3) whether Respondent’s decision to deny the fee waiver request for all other records was reasonable.
STATEMENT OF REASONS FOR DECISION
I. The Records are Properly Classified
Under GRAMA, “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 “protected” is not a public record. Utah Code § 63G-2-201(3)(a).
Respondent classified the requested photos as protected under Utah Code § 63G-2-305(11). That Subsection classifies a record as protected if disclosing the record would jeopardize the life or safety of an individual.
We find that the July 9, 2020, protest was a dynamic and chaotic event, one that certainly doesn’t occur on a routine basis. The protest was about the death of Bernardo Palacios who was killed by police on May 23, 2020. Protestors believed the death was a result of unnecessary excessive force and took to the streets after the Salt Lake County District Attorney’s Office determined the use of force justified. We find that, in relation to this specific protest and because of its chaotic nature, releasing the requested records could reasonably imperil the officers who were there to regulate the protest; for it was they who were in charge of restricting and controlling a crowd whose anger was directed directly at them. Therefore, we further find that Respondent classified the records correctly under Subsection 305(11).
II. The Evidence Does Not Support Releasing the Protected Records
If a record is properly classified under Subsection 305(11), we may order the records be disclosed only if the requestor has established, “by clear and convincing evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction.” Utah Code § 63G-2-406(2).
Here, the primary thrust of Petitioner’s evidence is that the public benefits from transparency and holding the police accountable. That is, by releasing the requested photographs, it will help weed out the worst officers from the police department and can save the public from having to pay thousands in lawsuits. Additionally, Petitioner argues that releasing the photos may also potentially protect the public from being victimized by the same bad acting officers.
These arguments are not enough to constitute clear and convincing evidence. When there is a reasonable risk that exposing the identities of officers to the public will jeopardize their personal safety, the evidence must point to reasons that can justify such exposure. Regardless of whether certain officers did not conduct themselves appropriately during a chaotic protest or not, we are not prepared to risk their safety for the reasons Petitioner argues. We find that Petitioner has not met his burden to compel disclosure of the photos under Section 63G-2-406(2).
III. The Fee Waiver Denial was Reasonable
A governmental entity may charge a reasonable fee to cover the entity’s actual costs of providing a record. Utah Code § 63G-2-203(1)(a). When the entity must compile a record in a form other than that normally maintained to fill the request, the compensable actual costs may include the cost of staff time for compiling, formatting, tailoring, packaging, search, retrieval, and other administrative costs. Utah Code § 63G-2-203(2)(a)(i)-(ii). The hourly charge for staff time, however, may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). But if the releasing the record primarily benefits the public rather than the requester, the governmental entity may fulfill a record request without charge and is encouraged to do so. Utah Code § 63G-2-203(4)(a).
Here, Respondent assessed a fee of $1,500.00 to fill the request due to the voluminous recordings it would have to comb through, review, compile, and possibly redact. Respondent estimates that these efforts would take roughly 600-700 hours. For these efforts, GRAMA allows a fee to be charged. However, GRAMA encourages a fee waiver when the request benefits the public. But even assuming for the sake of argument that Petitioner’s request will benefit the public, the statute encourages a fee waiver; it doesn’t require it. And it is settled law that the law allows a fee for voluminous and laborious requests even if the request benefits the public.
The Utah Supreme Court affirmed the trial court’s decision to uphold the fee waiver denial in a case where the records request would primarily benefit the public. The Court ruled:
Despite finding that JRRN’s purpose was to primarily benefit the public, the court concluded that the City’s decision to deny the requested fee waiver was reasonable given the voluminous nature of the request and the effort necessary to compile the requested documents. . . . The district court did not also need to weigh competing interests pertinent to disclosure and nondisclosure. While fees do affect the public’s access to documents, the legislature has identified different considerations specific to the fee waiver context. The district court correctly identified and applied them here. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶83-84.
The reasons the Court cited in that case are the same reasons Respondent had for denying Petitioner’s fee waiver request. Just as the Court found them permissible there, so do we find them permissible here. Accordingly, we find Respondent’s decision to deny the fee waiver was reasonable.
ORDER
THEREFORE, in accordance with this decision, Petitioner’s appeal is hereby DENIED.
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).
Entered this 2nd day of October 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
1. There is some indication in the record that Petitioner filed previous GRAMA requests for the same records stemming back to July 9, 2022. The record implies that there may have been three total requests for these records, including the January 20, 2023, request This appeal stems from that request.
",Denied,2023-10-02T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
OFFICE OF THE UTAH STATE TREASURER, Petitioner,
BRADY EAMES, Respondent, vs
DECISION AND ORDER
Case No. 23-60
By this petition the Office of the Utah State Treasurer (“Petitioner”) seeks a formal order declaring Brady Eames (“Respondent”) a vexatious requester pursuant to Utah Code § 63G-2-209.
ISSUES FOR REVIEW
We must determine whether Respondent is a vexatious requester under Section 63G-2-209, and, if so, the proper amount of time which the Petitioner, including its various divisions, public bodies, and entities, need not respond to Respondent’s records requests.
STATEMENT OF REASONS FOR DECISION
The Utah legislature recently enacted Section 63G-2-209 which grants the Utah State Records Committee (“Committee”) the authority to declare an individual a “vexatious requester” and “order that the governmental entity is not required to fulfill requests from the respondent or a person that submits a request on the respondent’s behalf for a period of time that my not exceed one year.” Utah Code § 63G-2-209(8)(b). In determining whether an individual is a vexatious requester, this Committee must consider the following factors as prescribed by statute:
a. The interests described in Section 63G-2-102;
b. As applicable:
i. the number of requests the individual has submitted to the governmental entity, including the number of pending requests;
ii. the scope, nature, content, language, and subject matter of record requests the individual has submitted to the governmental entity;
iii. the nature, content, language, and subject matter of any communications to the governmental entity related to a record request;
iv. any pattern of conduct that the Committee determines to constitute:
A. an abuse of the right of access to information under GRAMA; or
B. substantial interference with the governmental entity’s operations; and
c. any other factor the Committee considers relevant.
Utah Code § 63G-2-209(9)(a)-(c).
When we examine these factors, we bear in mind that the governmental entity need not prove each individual factor. Rather, the evidentiary burden on the government is to prove through a totality of the circumstances that the individual is a vexatious requester. Utah Administrative Rule R35-1-3(2). This means that we focus on the entire situation in the aggregate and not any one factor.
I. The Interests Described in 63G-2-102
In essence, the interests outlined in Section 102 are the requester’s right of access to information concerning the conduct of the public’s business, and the public policy interest in allowing the government to restrict access to certain records. Utah Code § 63G-2-107(1)-(2). Said better, and perhaps in a context more applicable to this appeal, the Utah Court of Appeals framed Section 102’s competing interests the following way: “In enacting GRAMA, our Legislature has balanced the public’s right to access government documents against the government’s interest in operating free from unreasonable and burdensome records requests.” Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist., 1999 UT App 136, ¶22.
Respondent is a self-proclaimed government “watchdog” who requests records to ensure government accountability. His intention and efforts to hold government accountable are indeed laudable and we are mindful of his right to do so. However, the government should also be afforded the opportunity to operate without “unreasonable and burdensome records requests.” Id.
In the year to date, Respondent has submitted 43 record requests to the Petitioner. The second most frequent requester has submitted 8. With each request, the statute requires a government response within 10 business days, unless the request requires an expedited response. Over the course of 43 record requests, the Petitioner must reallocate its existing resources to process and respond to each request. This entails reviewing the request, processing it, searching for responsive records, reviewing the records for protective classifications, assessing whether a fee is warranted and will be charged, and then responding to the request. These efforts are in addition to the staff’s routine and ordinarily expected job duties, which must be suspended to respond to each request.
There is no question that the Petitioner’s burden is substantial. For this, we find that the Respondent’s right to access records cannot go unchecked in relation to the burden his requests impose.
II. Scope and Nature of the Requests
The next factor we are to consider is the scope and nature of the requests. Petitioner has a habit of submitting record requests in a unique email format. As evidenced by the submitted record request for our consideration, Respondent routinely lays out his request in a convoluted outline format that reads more like a lengthy statutory scheme than a record request. Each request is riddled with acronyms created by definition and then used profusely throughout the request; various subsections of his outline format refer by reference to other subsections; the font type is heavily boldened throughout the request; and the outline format is fragmented into sections with differing headings. What appears to be an attempt at appreciable organization often has the exact opposite effect and comes across as a chaotic, unnecessarily lengthy, and barely decipherable request. Indeed, the Petitioner’s records officer, Brittany Griffin, testified to the Committee at the hearing that many of the Respondent’s requests are unclear as to what he is requesting. Consequently, his requests take a great deal of time to read through and decipher. Ms. Griffin also testified that on several occasions she has had to contact Respondent to get clarity on his requests.
The Petitioner further presented to the Committee evidence that many of Respondent’s requests seek records that are already publicly available through online resources. Because the records are already available, the Petitioner unnecessarily wastes time reviewing, processing, and sometimes searching for records only to discover they are publicly available.
Accordingly, in consideration of the number of requests, their confusing and difficult nature, and the often superfluous scope of requesting already publicly available records, we find that the burden on the Petitioner in handling the requests is unnecessarily substantial and weighs in favor of the Petitioner.
III. Scope, Nature, and Language in Communications Between the Parties
The Petitioner argues that communications with Respondent are unnecessarily excessive, terse, and sometimes hostile. To support this, the Petitioner claims the following:
Additionally, in her sworn statement submitted to the Committee, Ms. Griffin states:
In many of Mr. Eames’ communications, he has made significant and unsubstantiated claims and attacks on the character and competence of employees, including calling staff members criminal, and making unsubstantiated claims of fraud. Many of his communications with staff are aggressive in nature. Exhibit A, Sworn Statement of Brittany Griffin, at 2.
In our review, we see no evidence, except for Ms. Griffin’s claims that Respondent’s language carries animus toward the Petitioner and its staff. The Petitioner has provided no evidence for us to review on this point, except for Ms. Griffin’s testimony, which although we consider its weight, is still a statement without further corroboration. Had the Petitioner presented us with sample communications to support the claims, we might be much more compelled to make a finding in its favor on this point. Accordingly, we find the evidence lacking to convince us that Petitioner’s language and communication is of a nature that weighs for the Petitioner.
IV. Pattern of Behavior
In addition to the above factors, Ms. Griffin also testified that Respondent has a pattern of submitting requests and, when the Petitioner responds by assessing a fee, he appeals the decision to assess a fee (or deny his request for a fee waiver) and then later withdraws his appeal after the Petitioner and its counsel expends significant resources in their handling of the appeal. According to Ms. Griffin, this pattern of behavior is consistent with appeals to both the district court and to this Committee.
As a public body that performs judicial functions, we take judicial notice of the fact that Respondent has appealed fee waiver denial decisions to this Committee, but then withdrawn his appeal as the hearing approaches. See Common Cause of Utah v. Utah Public Service Com’n, 598 P.2d 1312 (“we agree with the proposition that where judicial duties and powers are conferred, there is necessarily implied therein the prerogative of carrying out those duties in the way the judiciary traditionally functions.”). Each appeal requires the Petitioner to begin preparing for the appeal, which entails hours of legal work to gather facts, evidence, and draft its Statement of Facts as Subsection 63G-2-403(5)(a) requires. When Respondent withdraws his appeal closer to the hearing or even during the hearing, the Petitioner incurs not only wasted time and resources, but also additional legal costs related to its counsel preparing for oral argument and presentation. As this practice has occurred multiple times, we find that the Respondent appealing fee waiver decisions and then later withdrawing is of a nature that substantially burdens the Petitioner and interferes with its operations.
CONCLUSION
Upon examining the circumstances surrounding this appeal, Respondent’s numerous requests to the Petitioner, the nature and scope of the requests, and a pattern of behavior that creates a substantial burden on the Petitioner, we find that Respondent is a vexatious requester as GRAMA prescribes.
In reaching this conclusion, we look at the factors and their severity to determine the appropriate amount of time for which Respondent is barred from requesting records from the Petitioner. The Petitioner argues that we should implement a 12-month penalty on Respondent—the maximum time period permitted by Section 209.
In considering the Petitioner’s request, we bear in mind that the only real evidence in this matter was the testimony of Ms. Griffin and her sworn statement. As we discussed above, the lack of evidence gives us some pause in assessing the strength of at least part of the Petitioner’s case. In petitioning this Committee to suspend a citizen’s right of access to government records, we expect a proportional level of direct evidence to support such a suspension. Here, the Respondent himself produced no case to refute Ms. Griffin’s claims as to the number of requests, scope and nature, or pattern of withdrawing appeals. Therefore, we relied on her claims as a sworn witness, but those claims alone don’t warrant a full twelve-month suspension of the Respondent’s right to access.
To date, the Respondent still has 19 pending requests to fill. We find that from the totality of circumstances before us, the vexatious behavior warrants a 7-month suspension by which the Petitioner is not obligated to respond to Respondent’s requests. For clarity, this Decision and Order includes all of Respondent’s pending requests that have not been filled and delivered.
ORDER
THEREFORE, in accordance with our Decision above, the Petitioner’s appeal is hereby GRANTED. The Petitioner has no duty to respond to any pending or future record request submitted by Respondent for 7 months from the date of this Decision and Order.
It is so ordered.
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.
Entered this 28 day of November 2023
BY THE STATE RECORDS COMMITTEE
Kenneth R. Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
C. PETER SORENSEN, Petitioner, vs
SALT LAKE CITY POLICE DEPARTMENT (“SLCPD”), Respondent,
DECISION AND ORDER
Case No. 23-23
Prior to the scheduled hearing, the parties both stipulated to postpone their hearing to the Committee’s June’s regularly scheduled meeting. Given that both parties agree without objection, we grant their request.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is CONTINUED to June 15, 2023.
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).
Entered this 26 day of May 2023
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, vs
DIVISION OF RISK MANAGEMENT, Respondent,
DECISION AND ORDER
Case No. 23-39
By this appeal Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by Division of Risk Management (“Respondent”).
FACTS
On December 6, 2022, Petitioner filed a records request and fee waiver with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested a fee waiver because he is the subject of the records and the public has a strong interest in learning why Petitioner, as the State’s insurer, paid private counsel to represent the Utah Attorney General’s Office (“UAG”). With regards to his records request, Petitioner’s request had three parts:
The Respondent reviewed its records and produced two responsive items. The first contained entries showing payment from the Respondent to RQN and contained redactions only for the tax identification number. The second set of records were communications between attorneys at RQN, UAG attorneys, and the Respondent’s adjuster Helen Maw. With exception to an email exchange dated November 7, 2022, that concerned a request from RQN to approve an expense for a court recording and its transcription, all responsive emails were produced with heavy redactions. The Respondent justified the redactions under “attorney- client/attorney work product privileges.”
Petitioner appealed the response to Michael Broschinsky and Ms. Terry, Respondent’s Chief Administrative Officers (“CAOs”) on March 1, 2023. In his appeal, Petitioner argued that the redactions were “without basis under GRAMA” and asked that they be lifted. Nothing was said about the invoices not being delivered and his appeal was unsuccessful.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On August 17, 2023, 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
There are three issues we must examine. First, whether responsive records were properly disclosed. Second, whether the classification over withheld documents was correct. Third, whether the redactions in the emails were legally permissible.
STATEMENT OF REASONS FOR DECISION
1. All Responsive Records Were Not Disclosed
Upon review of the record and the parties’ arguments at the hearing, it is apparent that not all responsive records were provided to Petitioner. In Petitioner’s original GRAMA request, he requested copies of both invoices and evidence of payments dating from June 15, 2022, to the date of the request that pertained to payments made to RQN for its representation of the UAG in connection with litigation concerning him. However, while payment records were produced to Petitioner, invoices were not. At the hearing, the Respondent argued that the sole issue on appeal is whether the redactions in the emails are proper, for that is what was appealed to the CAO and briefed before the Committee. Consequently, the Respondent argues the invoices should not be addressed. We don’t agree.
The GRAMA provides that “[t]he State Records Committee’s review shall be de novo, if the appeal is an appeal from a decision of a chief administrative officer issued under Section 63G-2-401.” Utah Code § 63G-2-403(10)(c)(i)(A). For guidance on what this means, we can look to our Utah Supreme Court’s explanation of de novo reviews for GRAMA appeals.
In Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, the Court examined Section 63G-2-404(6), which requires a district court review this Committee’s orders de novo. The Court said,
De novo means ‘anew.’ BLACKS’S LAW DICTIONARY (10th ed. 2014) In practice, this means the district court must make its own independent determination . . . with no deference to the Committee’s decision. To do this, the court must make its own assessment of the City’s denial.
Id. (Internal citation original. Emphasis ours.)
According to the Jordan River Court, although a de novo review concerns the underlying decision, the reviewing tribunal gives no deference to that decision. Instead, the review is to examine the governmental entity’s original denial. And even though the issue in Jordan River was a fee waiver denial, the principles of a de novo review are the same with records disputes.
Although the Court was examining Section 404’s requirement that the district court review the Committee’s order de novo, the law prescribes the same requirement to us as we review a chief administrator’s decision. Utah Code § 63G-2-403(10)(c)(i)(A). Therefore, in applying Jordan River to this situation, we must review the CAO’s denial anew and without deference; we are to look at the Respondent’s original response to Petitioner’s GRAMA request. Consequently, how the parties present the issues to us is not binding, nor are issues lost if they are not argued before the CAO or this Committee. Rather, it is our assessment of the original decision that filters out what issues we must review.
Our view on this is bolstered by recent legislation. In the 2023 legislative session, our legislature amended Section 63G-2-404 to address the preservation of issues when a party appeals to district court. That amendment states: “Except in exceptional circumstances, a petition for judicial review may not raise an issue that was not raised in the underlying appeal and order.” S.B. 231, 2023 General Session, (Sen. Bramble, Rep. Loubet) now codified as 63G-2-404(2)(b). Notably, the legislature made no such amendment to the Section 403—the section governing appeals before this Committee. Thus, the legislature intentionally limited the issues that could be presented to the district court on appeal as those that were raised in the underlying appeal. However, no such preservation requirement applies to this Committee in reviewing the CAO’s decision. From this, we infer that it is our job to sniff out the issues that need to be adjudicated under GRAMA disputes, decide and preserve them for a possible district court appeal. To preserve issues for a district court appeal is a function of high importance; it ensures that the parties can have their day in court (if they choose to appeal) and have their issues heard. Oftentimes, we hear appeals from unrepresented members of the public who may not understand the preservation doctrine and simply disagree with the denials they’ve received from the entity and its CAO. Consequently, we cannot be limited to only the issues that are briefed and argued before us because unrepresented requesters may not properly frame the issues for us. Additionally, the governmental entity may see the issues differently than the requester. Therefore, as we review the record dispute anew, it is our job to determine which issues are ripe for adjudication and which are moot.
Here, we find that the Respondent never addressed the request for invoices. When questioned about them, the Respondent claimed that it cannot be responsible to deliver the invoices because those records aren’t in its possession—they are owned and held by the UAG. True as that may be, we don’t see how the State’s insurer could pay UAG’s legal bills without ever receiving copies of the invoices. Further, we don’t read the GRAMA as requiring ownership or possession as the only operative elements when it comes to disclosing requested records. The Code defines a “record” as a document [1] that is “prepared, owned, received, or retained by a governmental entity.” Utah Code § 63G-2-103(25)(a)(i) (emphasis added). Thus, to be required to disclose the invoices, the Respondent need not own or possess them; it need only to have received them. Due to government controls, we view it as unreasonable to suppose that the Respondent paid invoices for the UAG without ever receiving them, and therefore, we find the Respondent has a duty to disclose them.
2. The Classifications of the Emails Were Proper
We now turn to whether the emails were properly classified as protected under Subsections 63G-2-305(17)-(18).
Generally, records are presumed public unless expressly provided by statute. Utah Code § 63G-2-201(2). Records that are classified as “protected” under Section 63G-2-305 are not public records. Utah Code § 63G-2-201(3). If a requested record contains both public and protected information, the government entity may redact the protected information. See Utah Code § 63G-2-308. Additionally, a record is classified as protected if it is subject to the attorney-client privilege or it was prepared by an attorney or insurer for litigation. Utah Code § 63G-2-305(17)-(18). In determining whether a record is properly classified as protected, or whether the redactions in a record are proper, the Committee may review the unredacted record in camera. Utah Code § 63G-2-403(9)(a)(ii).
At the hearing, the Committee moved to view the unredacted records in camera to determine whether the redacted portions of the email communications were classified correctly. Upon that review, the Committee found that the emails contained confidential information between RQN and UAG in which legal advice was either sought or present. See Southern Utah Wilderness Alliance v. Automated Geographic Reference Center, et. al., 2008 UT 88, ¶33 (Outlining three elements to attorney-client privilege: (1) an attorney-client relationship; (2) the transfer of confidential information; and (3) the purpose of the transfer was to obtain legal advice.) Accordingly, we find that the redacted communications were properly classified as protected under both Subsections 305(17) and (18). As a result, the redactions were permissible under the GRAMA.
3. The Evidence Does Not Favor Lifting the Redactions
In finding that the emails were correctly classified as protected, the final issue is whether the redactions may be lifted.
Here, Petitioner points us to Schroeder v. Utah Attorney General’s Office, 2015 UT 77, to argue that the Committee must weigh the public interest favoring disclosure against the interest favoring restriction, and that by doing so, we should find the public’s interest in knowing how its tax monies are used in this litigation outweighs protecting the information under attorney-client confidentiality.
Normally, once the Committee determines that a record is properly classified as protected, we then weigh “the various interests and public policies pertinent to the classification or nondisclosure” and “order the disclosure of information properly classified as private, controlled, or protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). However, if the record is properly classified under Subsections 305(17) or (18), then the analysis changes: The Committee must look to actual evidence supporting disclosure instead.
When a record is classified as protected under Subsections 305(17) or (18), the Committee may order the record’s disclosure “only if the person or party seeking disclosure of the record has established, by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 53G-2-406(1) (emphasis added). This Subsection removes the Committee’s duty to weigh the interests. Instead the burden shifts to the petitioner to show, by a preponderance of evidence, that the public interest favoring access is at least as great as the interest favoring restriction.
A careful reading of Shroeder shows that the weighing analysis is improperly performed if it’s “focused on general policy concerns without discussing how those interests are specifically applied to the records at issue in [the] case.” Id. at ¶19. That is, “the balancing analysis under GRAMA must be tethered to the specific interests of the parties and particularized application of the relevant public policies at issue.” Id. at 51 (emphasis added). Consequently, a petitioner cannot rely on generalized policy concerns as the “public interest” favoring disclosure.
Schroeder acknowledged that many of GRAMA’s protections over records “involve policies that virtually always outweigh the public’s right to know” and attorney-client confidentiality is one of them. Id. at ¶55. However, the protection over attorney-client privilege is not iron-clad. The Court explained:
But while the public’s right to know is, in the abstract, often less compelling than these policies, the weight of any particular policy varies depending on the nature of the document at issue. For example, the interest in protecting attorney work product is more compelling during ongoing litigation than it is years after a dispute has been resolved.
Id. at ¶ 55.
Therefore, we must accord Section 406’s requirements with Schroeder. That is, under Section 406, rather than perform a balancing analysis, we can only look at evidence that supports “particularized interests and public policies pertinent to the classification and disclosure . . . of information,” not general competing public policies. Id. at 57 (internal quotations omitted).
Applying these principles to the case before us, not only do we find that the public’s right to know how much the UAG’s litigation against Petitioner has cost taxpayers is more of a general policy interest rather than one particularized to Petitioner himself, but more importantly, he has proffered no evidence to show that his particular interests outweigh the general policy protections afforded by attorney-client confidentiality. Notably, Petitioner has a high burden here considering the attorney-client privilege he seeks to pierce is connected to the litigation he is currently engaged in with the UAG and which these records directly relate. Without such actual evidence to support his unique interests in the records and a showing that the public policies favoring disclosure are particularized to him and far outweigh the protections afforded by Subsections 305(17)-(18), Petitioner may not receive the records unredacted.
ORDER
THEREFORE, it is hereby ordered that Petitioner’s appeal is GRANTED in part and DENIED in part according to the following:
1. The Respondent is ordered to disclose the requested invoices.
2. The redactions in the email communications were proper and the Respondent has satisfied its duty in relation to them.
3. If Petitioner is not satisfied with the delivered invoices, he may inform the Committee’s Executive Secretary and the issue of the invoices will be heard.
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. UtahG 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).
Entered this 28 day of August 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
1. “Record” means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics.” Utah Code § 63G-2-103(25)(a).
",Partially Granted,2023-08-28T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY JOHNS (ABC 4 News), Petitioner, vs
DEPARTMENT OF HEALTH & HUMAN SERVICES, DIVISION OF CHILD AND FAMILY SERVICES, Respondents,
DECISION AND ORDER
Case No. 23-54
By this appeal Courtney Johns, a reporter for ABC 4 News (“Petitioner”), requests records allegedly held by, Department of Health & Human Services, Division of Child and Family Services (“Respondents”).
FACTS
On April 25, 2023, Petitioner filed a records request with the Respondents pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested “any audio, video, or images collected involving Michael Haight’s abuse allegations.” Respondents denied the request on May 9, 2023, stating that no video or images were collected so no record exists to provide. Respondents acknowledged that it had in its possession two audio recordings of one of the children’s interviews with the Division of Child and Family Services (“DCFS”), but they did not provide the recordings because they were protected under a statute that restricts their disclosure to the media.
Petitioner appealed the decision to Eric Stott, Respondents’ Chief Administrative Officer (“CAO”) on May 22, 2023. Mr. Stott upheld the denial. He determined that certain written records associated with audio recordings should be released, but not the audio recordings themselves. He found that the audio recordings were protected under Utah Code § 80-2-1005. He also determined that “if one child refuses to be interviewed or discuss important sensitive information with DCFS because such child learned that another child’s interview was made public or shared with the media, this would be a great failure and disservice. The risk of this occurring outweighs the public interest in accessing the record, especially when the substance of such interviews is already contained in the released activity records.”
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On October 19, 2023, 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
We must determine whether the requested audio recordings are properly classified under Utah Code § 80-2-1005 and, if so, whether that Code section permits the records’ disclosure under GRAMA.
STATEMENT OF REASONS FOR DECISION
Utah law 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 to which access is restricted pursuant to another state statute is not a public record. Utah Code § 63G-2-201(3)(b). If the other statute allows for disclosure of the record, then access is governed by the specific provisions of that statute. Utah Code § 63G-2-107(1)(a).
Section 80-2-1005 addresses the classification of child abuse and neglect reports. Subsection (1) classifies such reports, “and any other accompanying information obtained as a result of the report[s],” as private, protected, or controlled under GRAMA. Utah Code § 80-2-1005(1). However, departing from GRAMA’s provisions dealing with these protective classifications, Subsection (1) expressly states that the reports and information may be disclosed, but only to an enumerated list of fifteen specific individuals and entities. Utah Code § 80-2-1005(1)(a)-(o).
After the parties presented their arguments to the Committee, we find that the recorded interviews constitute “other information” that DCFS obtained as a result of the child abuse report. Therefore, the recordings are governed by Subsection 80-2-1005(1). Since the recordings are governed by that subsection, they are appropriately classified and can be disclosed to only the 15 individuals and entities named in that Section. The media is not among them.
Petitioner asks us to exercise our weighing authority under Section 63G-2-403(11)(b) to examine the various interests and public policies favoring disclosure and determine that the public interest in the records outweighs their restriction. This we cannot do.
Subsection 403(11)(b) indeed grants the Committee the authority to weigh the interests and order a record’s disclosure when the record is classified as private, controlled, or protected. However, GRAMA also states that “disclosure of a record to which access is governed or limited pursuant to . . . another state statute, . . . is governed by the specific provisions of that statute. . . .” Utah Code § 63G-2-107(1)(a). Therefore, while our weighing authority may customarily apply, it cannot apply if another statute governs the disclosure of the record and provides for how and to whom that record may be released. Because Subsection 80-2-1005(1) allows for release to only a limited and specific list of individuals, we cannot weigh the interests and order disclosure to an individual not named in that list. Accordingly, we find that the recordings were properly restricted.
ORDER
In accordance with this decision, Petitioner’s appeal is hereby DENIED.
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).
Entered this 30 day of October 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH LIEUTENANT GOVERNOR’S OFFICE, Respondent,
DECISION AND ORDER
Case No. 24-07
By this appeal, Petitioner, Brady Eames, requests a fee waiver for records held by Respondent, Utah Lieutenant Governor’s Office (“LGO”).
FACTS
On September 1, 2023, Petitioner submitted a records request to the Respondent pursuant to the Government Records Access and Management Act (“GRMA”). Specifically, Petitioner sought the “Official Signature Sheet for Bills and Resolutions State of Utah” pertaining to S.B. 111 (2020), S.B. 181 (2021), and S.B. 146 (2023). In conjunction with his request, Petitioner requested that any fees connected to filling the request be waived. The basis for the request was that Petitioner “believe[s]” the requested records are “all vital public records.”
The Respondent’s records officer replied to Petitioner’s request and informed him that there would be a $43.75 fee charged for filling the request. This amount covered the Respondent’s time in searching for and attempting to retrieve responsive records.
On September 13, 2023, Petitioner submitted an expedited appeal to the LGO’s chief administrative officer (“CAO”) to challenge the denial of a fee waiver. The CAO responded to the appeal on September 27, 2023, and affirmed the fee waiver denial. The basis of her decision was that “the request fails to provide adequate reasoning to the public benefit of release of the records.”
Petitioner has now appealed to the State Records Committee (“Committee”), On January 18, 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
Whether the decision to deny the fee waiver request was reasonable.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). “Although the Legislature has mandated ‘easy’ access to public records, it has also attempted to prevent public agencies from becoming overwhelmed by time-consuming and burdensome records requests by allowing government agencies to charge for the production of records under certain circumstances.” Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136, ¶23. In Section 203, GRAMA states that a governmental entity may charge a reasonable fee to cover the actual costs of providing a record. Utah Code § 63G-2-203(1)(a). When an entity compiles a record in a form other than how the record is normally maintained, the actual costs include the cost of staff time for search, retrieval and other administrative costs. Utah Code § 63G-2-203(2)(a)(ii). But any hourly charge under Subsection 203(2)(a) “may not exceed the salary of the lowest paid employee” who has the necessary skill and training to fill the request. And in all cases, the entity’s decision to deny a requested fee waiver is reviewed on a standard of reasonableness. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52.
In this case, the Respondent’s record officer spent an hour and 45 minutes searching for responsive records. The records officer hourly rate is $26.00 per hour. This equates to a total fee of $50.25. As the Respondent assessed a total fee of $43.75, we find that in light of the efforts taken to search for responsive records, the decision to deny the fee waiver request was reasonable under the circumstances.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 29 day of January 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13) Petitioner, vs
UTAH GOVERNOR’S OFFICE, Respondent,
DECISION AND ORDER
Case No. 23-34
By this appeal Adam Herbets (“Petitioner”), requests records allegedly held by Utah Governor’s Office (“Respondent”).
FACTS
On January 11, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested:
Respondent provided numerous records responsive to the request. Petitioner was not charged for any of the records provided; however, it did withhold some records on the grounds, stating the following:
Certain records have been classified as private or protected and redacted or not released to the extent that they concern a current or former employee of, or applicant for employment with a governmental entity, are subject to attorney client privilege, are drafts, or would reveal the governor’s contemplated policies or courses of action before the governor has implemented or rejected those policies or made them public. See Utah Code §63G-2-302(2)(a), -305(17), (22), (29). Finally, certain email addresses, mobile device numbers, personal information, and personal notes have been redacted or not released as private or non-records. See Utah Code §63G-2-103(22)(b), -302(2)(d).
Petitioner appealed to the Office’s chief administrative officer (“CAO”) on February 9, 2023. The CAO responded on February 17, 2023, affirming the denial in part and reversing the denial in part. As part of the response, the CAO provided 130 pages of records and withheld 123 other records. With respect to the withheld records, the CAO provided a description of them by categorizing them in the following manner:
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On July 20, 2023, 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
We must determine whether the records are properly classified and if they must be released.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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). Further, a record that is private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5). When analyzing whether a governmental entity has correctly classified redacted information as protected, this Committee has the authority to view the records in camera and review the information unredacted. Utah Code § 63G-2-403(9)(a)(ii). At the hearing, the Committee moved to view the unredacted contract in camera to aid it in its analysis.
In the appeal before us, the Respondent has withheld 123 records and classified each as either private or protected in accordance with various provisions of Sections 63G-2-302 and 305. These classifications span from privacy interests, protection of governmental employee personnel files, to attorney-client and executive privilege over the governor’s records. Upon reviewing the records and privilege log in camera, we determine that the classifications are proper and the records need not be released.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 1 day of August 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TY WINTERTON, Petitioner, vs
DUCHESNE COUNTY, Respondent,
DECISION AND ORDER
Case No. 23-48
By this appeal Ty Winterton (“Petitioner”), requests a fee waiver for requested records held by Duchesne County (“Respondent”).
FACTS
On March 30, 2023, Petitioner and some friends had rented the Duchesne County Centennial Center’s arena to ride horses. After the riding and his friends had left, Petitioner was preparing his horse to leave when he was allegedly accosted by two individuals. After Petitioner managed to leave the premises and the individuals who were harassing him, he contacted the police and filed a report about the incident.
On March 31, 2023, and April 3, 2023, Petitioner, with help from his mother-in-law who had recently filed a number of GRAMA requests with Respondent on her own, filed records requests with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Between the two requests, Petitioner requested the following records:
1. “camera footage from inside the Centennial Center arena on March 30, 2023, from 3pm—5:00pm
2. outside camera footage if there is a camera showing the big door area that enters the warm up arena from 3:00pm – 5:00pm on March 30, 2023
3. camera footage from cameras in the warm up arena from 3:00pm to 4:00pm on March 30, 2023
4. video camera footage from March 30, 2023, of the employee conference room camera off of employee offices from 7am-5pm
5. video camera footage from March 30, 2023, of east inside building doors entering the main arena from 3:30pm through 5:30pm.”
On May 4, 2023, Respondent delivered notice that it had denied Petitioner’s record request on the grounds that the records were protected under Subsection 305(12) of GRAMA, which protects records that the “disclosure of which would jeopardize the security of government property . . . from damage, theft, or other appropriation or use contrary to law or public policy.” Utah Code § 63G-2-305(12). Upon receiving this notice, Petitioner’s mother-in-law spoke with Respondent’s records officer to express concern about preserving the footage during the appeals process. The records officer assured Petitioner’s mother-in-law that the requested video footage would be preserved for the appeals period in case Petitioner did decide to appeal the decision.
On April 19, 2023, Petitioner appealed the decision to Respondent’s chief administrative officer (“CAO”). Petitioner explained in his appeal that the request was made in hopes of finding that the altercation he was involved in was captured by any of the security cameras near the area the incident took place. However, the CAO denied his appeal on May 4, 2023. The CAO affirmed Respondent’s claim that the records were classified as protected under Section 305(12).
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. At some point during the pendency of the appeal, Respondent spoke with Petitioner about the GRAMA request. Respondent informed Petitioner that the camera footage doesn’t exist because the cameras were not operational for the time period Petitioner requested.
On September 21, 2023, 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
We must determine (1) whether the records exist and are properly classified under Section 63G-2-305(12); and (2) if the records are properly classified, whether they may still be disclosed.
STATEMENT OF REASONS FOR DECISION
Respondent makes several arguments about the state of the requested footage. First, Respondent testified that all security footage is securely held by a third-party and that only certain government employees with proper legal authorization from the County Attorney can review the footage. Therefore, according to Respondent, since the records are not actually owned, received, or maintained by Respondent, they cannot be records for purposes of GRAMA. Respondent further argues that even if the requested footage is a record subject to GRAMA, the records don’t exist because the footage was recorded over with new footage during the pendency of the appeal. Finally, Respondent argues that if it did have responsive records, they would be protected under Section 305(12) of GRAMA. We take these points one at a time.
I. The Requested Footage is a Record Under GRAMA
Under GRAMA, “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). GRAMA defines a “record” as “a . . . film, . . . recording, . . . electronic data, or other documentary material regardless of physical form or characteristics: (i) that is prepared, owned, received, or retained by a governmental entity . . .; and (ii) where all of the information in the original is reproducible. . . .” Utah Code § 63G-2-103(25)(a)(i)-(ii).
We find that by virtue of Respondent contracting with the third-party to record and retain the surveillance footage, that footage is owned by Respondent. Respondent’s IT department may access the recorded footage at any time (albeit with authorization from the County Attorney per its policy). From the ownership of the footage, this satisfies GRAMA’s definition of “record.” Therefore, contrary to Respondent’s assertion, we conclude that the requested footage is a record subject to GRAMA.
II. The Records May Be Classified Correctly
A governmental entity’s record is considered a public record “unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). A record properly classified as “protected” under Section 63G-2-305, is not a public record. Utah Code § 63G-2-201(3)(a). Under GRAMA, a record is “protected” if the information it contains would jeopardize the security of governmental property from damage, theft, or other appropriation or use contrary to law or public policy. Utah Code § 63G-2-305(12).
From the information we’ve been given, we can conclude that the records are likely classified correctly. However, our analysis on that point is cut short by the fact that the requested footage has been recorded over and no longer exists.
III. The Records No Longer Exist
In Respondent’s Statement of Facts submitted to the Committee, it explained why the records don’t exist. Respondent represents that it has a four-week retention period for video footage. When the records officer sent a “preservation of records letter” to Respondent’s IT department, the IT department felt that the request was inadequate because the letter cited no legal authorization from the County Attorney granting permission to access and preserve the requested footage. As a result, the IT department did not access the video footage to preserve it within the four-week timeframe and the footage was eventually recorded over with new footage.
Given that the footage was a record owned by Respondent, it had a duty to preserve that record during the appeal process. The duty to preserve records is not one that can be delegated to the third-party host who retains the records. From the facts on the record, we see that Respondent’s failure to preserve the requested footage was an unfortunate misstep of government administration and raises concerning questions about its record retention practices as required by law. Unfortunately, for Petitioner, this legislature has not given this Committee jurisdiction to penalize governmental entities for such errors. See Utah Code §§ 63G-2-403.
IV. Conclusion
In sum, we find that the requested footage was a record under GRAMA. According to the facts before us, it was likely classified correctly. Respondent had a duty to preserve the requested records during the pendency of the appeal but failed to do so. Respondent alone has the duty to preserve records for GRAMA requests and cannot delegate that responsibility. But because this Committee has no authority and this is not the venue to penalize Respondent, we are left with no choice but to deny the appeal.
ORDER
THEREFORE, in accordance with the decision above, Petitioner’s appeal is hereby DENIED.
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).
Entered this 2nd day of October 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
ATTORNEY GENERAL’S OFFICE, Respondent,
DECISION AND ORDER
Case No. 24-01
By this appeal, Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by Attorney General’s Office (“AGO”) (“Respondent”).
FACTS
In relation to ongoing and longstanding litigation with the Respondent, on July 11, 2023, Petitioner submitted two requests to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested:
any and all records of the Utah Attorney General’s Office’s (UTAG’s) representation by Strong and Hanni (SH) and compliance with Utah Procurement Code (UPC) and UTAG’s own policy regarding UPC in the hiring of SH to represent UTAG in any matter involving Paul G. Amann, including, but not limited to (i) text messages; (ii) emails; (iii) memoranda, between UTAG and SH, (iv) any and all requests for proposals (RFP’s); (v) responses to RFP’s; (vi) contracts; and (invoices).
In conjunction with his request, Petitioner also requested a fee waiver because “it is of public interest that the AG’s office continues to hire outside counsel at exorbitant costs and in all likelihood in violation of the Utah Procurement Code (based on UTAG’s historical failure to comply with the Utah Procurement Code) despite UTAG receiving historical attorney raises in 2023.”
Mr. Amann’s second request came on July 15, 2023. when he requested “all records and metadata of the following records with regard to Cynthia Stonebraker Poulson”:
1. Beginning with her employment in the Attorney General’s Office as an education specialist, and through her time as an “analyst” and a paralegal, please provide records if all payments for her dues to the Utah State Bar by anyone employed by the Attorney General’s Office, including but not limited to Ken Wallantine, for Cynthia Stonebraker Poulson prior to her employment as an attorney with the Utah Attorney General’s Office, that is, prior to her obtaining the promotion to “attorney/paralegal” which contract she signed on July 30, 2013.
2. Also please provide records showing the funding source or account for the payment of those bar dues.
3. The AG’s office defended Poulson against a Bar Complaint which came about as a result of crimes Poulson committed prior to her employment with UTAG. UTAG paid attorney Michael Skolnick of Kipp and Christian, P.C. in the amount of $27, 582.23, for representing – not the attorney general’s office but Poulson. Please include any records, including communications, which relate the funding source or account of the revenue for the compensation to Michael Skolnick and/or his firm.
This second request also included a fee waiver request.
The Respondent’s internal policies governing whether a fee waiver may be issued states that the requester bears the burden of demonstrating that “releasing the record primarily benefits the public; and the factors in this policy should be applied to grant the waiver request.” Resp’t’s Statement of Facts, Reasons, and Legal Authority, Exhibit H: Policy for GRAMA Fee Waiver Requests under Utah Code § 63G-2-203(4)(a) (West 2009). The factors to be applied are listed as:
a. Is the request broad or reasonably focused?
b. Would release of the records to the requester contribute significantly to public understanding of the operations or activities of the Utah Attorney General’s Office?
c. Would the expenditure of time and resources in responding to the request significantly affect the Office’s ability to meet its other responsibilities?
d. Are there other methods available to the requester to obtain the information sought, and have those other methods been used?
e. How frequently has this requester and any organization for which the requester works asked for and received a waiver?
Id.
On July 26, 2023, the Respondent’s records counsel denied the fee waiver request for Petitioner’s first request based on a determination that Petitioner had not met his burden of demonstrating that his request primarily benefits the public and that the Respondent’s policy concerning fee waivers weighed against granting his waiver request. Based on the estimation that fulfilling Petitioner’s request would take between 20-25 hours of staff time at a conservative hourly rate of $25 per hour, records counsel quoted Petitioner a minimum fee of $500 to fulfill the request which was to be paid up front before the request could be processed.
On July 28, 2023, Respondent denied Petitioner’s request for a fee waiver in his second record request. This denial mirrored the reasoning and determination in the first denial, including the estimation of time and fees.
On August 5, 2023, Petitioner submitted a combined appeal to the AGO’s Chief Administrative Officer (“CAO”) challenging the denial of a fee waiver and the fee deposit assessment for both requests. Petitioner’s sole basis for appeal was that the fee deposit amount had “no foundation in reality” and was “merely copied pasted [sic] from one case to the next with no regard to the circumstances of each request.”
On August 16, 2023, AGO General Counsel Daniel Burton, acting as CAO, denied Petitioner’s appeal, stating:
Having reviewed your request. I find that the estimate of 20 to 25 hours of staff time to fulfill each request is reasonable and appropriate. In fact, I believe these estimates to be quite conservative. The fact that both requests were estimated to take roughly the same amount of time to fulfill does not show that the estimates are unrealistic or unfounded. Instead, it merely shows that the requests are similar in terms of scope, complexity, and anticipated volume of records to be reviewed and produced.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On January 4, 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
We are asked to review the denial of the fee waiver request and determine if the denial was appropriate.
STATEMENT OF REASONS FOR DECISION
GRAMA states 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, the legislature has also “balanced the public’s right to access government documents against the government’s interest in operating free from unreasonable and burdensome records requests.” Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 137, ¶22. One way of balancing and protecting the government’s interest in that regard is to impose fees for the production of records. While the law acknowledges that fees for records “does, to some extent, limit access to pubic records,” the law does not allow “for a lawful custodian to bear the burden of paying for all expenses associated with a public record request.” Id., ¶25. Therefore, GRAMA allows a governmental entity to assess compilation fees for a record request if the request “requires the agency to extract materials from a larger document or source and it is not feasible or reasonable to allow the requestor to compile the records.” Id., ¶28; See also Utah Code § 63G-2-203(2)(a). We also note that, although not required, GRAMA encourages a fee waiver if releasing the records would primarily benefit the public rather than a person. Utah Code § 63G-2-203(4)(a). In any review of a governmental entity’s decision to deny a fee waiver request, “the ultimate question is not whether the entity abused its discretion, but whether its decision was reasonable.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52.
There appears to be two grounds by which the Respondent is assessing a fee and denying a waiver. First, the compilation of records from a larger source and the time it will take to fill the request; and, second, the records primarily benefit the requester rather than the general public.
With respect to the first point, the Respondent argues that the records request and situation is virtually identical to their previous records dispute in Amann v. Utah Attorney General’s Office, Decision and Order no. 23-41, Utah State Records Committee (entered Sept. 6, 2023). In that case, we found the Respondent’s fee waiver denial reasonable because the record request would’ve required the Respondent to compile the records from a much larger source and then compile them in a deliverable format to fill the request. The Respondent argues that just like in that case, the request here would require it to search for records among its different divisions (e.g., criminal division, finance division) for records that date back beyond ten years, which would necessitate an archival search. It’s from this effort that the Respondent estimates the 20-25 hours of search time.
We agree with the Respondent. Not only are the documents being pulled from a larger source, that being multiple divisions within its offices, the date range for the requested records goes back at least ten years, which requires the Respondent to search its records vault. Thus, the requirements of Subsection 203(2)(a) is satisfied. Further, because the records are housed in the archives, Petitioner could not obtain the records without the assistance of the Respondent. Thus, Graham’s requirements are satisfied here in determining that the decision to assess a fee was permissible.
As Jordan River Restoration Network instructs us to look only at whether the Respondent’s decision is reasonable, we find that both the estimated fee of $500 to fill the request and the decision to deny the waiver request are reasonable.
To the second point: The parties have been engaged in ongoing litigation for quite some time. Additionally, the parties have also appeared before this Committee numerous times concerning record requests either directly or tangentially related to the issues they are or might be litigating. While we are mindful of Petitioner’s claim that his record request serves the benefit of the public because he seeks to hold the Respondent accountable for alleged corruption, we can’t overlook the fact any records he receives are helpful to his current claims and allegations against the Respondent. This is especially true in light of the Respondent’s testimony that discovery has closed in their current litigation and GRAMA is the only vehicle now available to obtain documents for his case. Because of this, we can’t agree with Petitioner’s claim that his record request “primarily benefits the public” rather than himself. Utah Code § 63G-2-203(4)(a) (emphasis added). Moreover, even if the public was the primary beneficiary of releasing the records, we acknowledge there is no statutory mandate to waive the fee—the operative word in the statute is “encourages.” Without a compelling reason in front of us, we won’t disturb the Respondent’s decision to charge a fee on these grounds.
In conclusion, we find that the Respondent adhered to both the law and its policies concerning fee waiver determinations. We also find that the request was to primarily benefit Petitioner, not the public. Therefore, as Amann, 23-41, is analogous to this case, we find that the Respondent’s fee waiver denial and its fee were both reasonable.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 16 day of January 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EMMANUEL CARRANZA, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent,
DECISION AND ORDER
Case No. 24-19
By this appeal, Emmanuel Carranza (“Petitioner”), requests records allegedly held by Utah Department of Corrections (“Respondent”) (“UDC”).
FACTS
On June 3, 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 documentation/information and/or rational information that exists to demonstrate the greater degree of supervision required” from approximately April 19, 2023. In his request, he further clarified that he was seeking “all information concerning or considered in the implementation of the override of April 2022. Especially the records in the reassessment as to the rational[sic] and documented information for the override signed by the deputy warden.” The Respondent located a “Severe Management Override: Carranza, Emmanuel #177267 dated April 21, 2022. On June 23, 2023, The Respondent denied the initial request since it was a classification assessment and the “majority of assessments regarding inmates are GRAMA certified as private and are not given out.”
Petitioner appealed this denial to Respondent’s Chief Administrative Officer (“CAO”). In his appeal, Petitioner cited various policies and requested that the Respondent grant him access to the “override assessment.” The Respondent’s CAO upheld the initial denial of the record and clarified that the record should have been classified as protected under Utah Code § 63G-2-305(13).
Petitioner then appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. During the pendency of his appeal, the Respondent provided multiple “Severe Management Override” reports to Petitioner. The Warden of the Utah State Correctional Facility and the Respondent’s Director of Prison Operations then met with Petitioner to try to resolve his request. However, Petitioner remained unsatisfied by the documents they provided and moved forward with his appeal. On February 15, 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 Petitioner’s records request was properly processed and filled.
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, the law does give aid to the government when responding to records requests by mandating disclosure only if the requester “identifies the record with reasonable specificity” in the request. Utah Code § 63G-2-201(6)(b). Therefore, if a requester doesn’t provide a reasonably specific description of the record he seeks, the government is not required to fill the request.
In this case, the Respondent has shown the lengths it went to in trying to satisfy its duty to respond to the request. Taking the request at its face, the Respondent searched for and eventually retrieved multiple “Severe Management Override” reports concerning Petitioner. The Respondent’s Director of Operations and the Warden even personally visited Petitioner to address and try to resolve his request. However, the Respondent’s efforts and the records it produced didn’t satisfy Petitioner. But in the hearing, through the testimonies of the parties, we found that Petitioner was actually seeking a Law Enforcement Bureau Investigation Report (“LEB Report”).
It’s a somewhat common occurrence that an appeal comes before this Committee where the requester, not knowing how the governmental entity labels or identifies its records, submits a GRAMA request and doesn’t use the correct term in describing the records being requested. The government, doing its best to meet the request with precision, looks for the exact records being listed in the request. Inevitably, the dissatisfied requester brings the issue to us where, upon our examination of the parties, it comes out that it’s a matter of how the government internally names the record. This problem has no easy solution. Even when the Respondent’s Director and the Warden met with Petitioner there was still no epiphany that Petitioner was really asking for the LEB Report. As a result, we fault neither party. Petitioner didn’t know the exact name or label of the LEB Report, and the Respondent made reasonable efforts to ascertain what he was seeking.
Despite this, we must apply the law to the facts. As GRAMA requires that Petitioner identify the records he seeks with reasonable specificity, it’s clear that, by no fault of his own, he didn’t. The Respondent, making reasonable efforts to adequately fill the request, couldn’t ascertain exactly what Petitioner was seeking. Therefore, we must deny the appeal for the lack of specificity. We note, however, that, from the hearing, the parties now understand that Petitioner is seeking the LEB Report relevant to the override he referenced in his initial request. We encourage Petitioner to submit a new request identifying this specific record, and we encourage the Respondent to respond with the same good faith effort it did with the initial request.
ORDER
THEREFORE, in accordance with this Decision, Petitioner’s appeal is hereby DENIED.
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).
Entered this 26 day of February 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JARED KUMMER, Petitioner, vs
SEVIER COUNTY SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 23-59
By this appeal Jared Kummer (“Petitioner”), requests records allegedly held by Sevier County School District (“Respondent”).
FACTS
Aside from Petitioner requesting additional records not previously requested, the facts of this appeal are identical to those in Kummer v. Sevier School District, case no. 23-36, Utah State Records Committee (entered Aug. 28, 2023) (Kummer I). Because the facts are identical, to that case, we give only a brief review of them and describe the records Petitioner seeks.
On November 21, 2022, A.K., the daughter of Petitioner had to participate in an “endurance day” during her physical education (“P.E.”) class. For the duration of the class, the instructor required the kids to perform continued physical exertion exercises that accumulated to hundreds of push ups and scores of wind sprints across the gym. The activity resulted in A.K. incurring chest and muscle pain to the point where the range of motion for her arms was significantly limited.
Shana Kummer, A.K.’s mother, filed a record request to obtain a copy of the gymnasium surveillance footage that recorded the P.E. class her daughter had to participate in. After Respondent denied her request, this Committee ultimately ruled that Respondent must redact the faces of A.K.’s peers and then release the video to Mrs. Kummer.
On May 28, 2023, Petitioner filed his own records request with Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner made 12 requests relating to the P.E. classes at South Sevier Middle School (“SSMS”) and investigation into endurance day activities. Those requests were as follows:
1. Records of all allegations or complaints from students, parents, teachers, or district employees related to the P.E. event or any other SSMS P.E. related complaint for the past 6 years;
2. All related incident reports for the past 6 years, including those related to the 11/21/22 event;
3. All student and teacher witness related statements/reports created from the school and district investigations;
4. A copy of Principal Michelle Nielson’s communications with the teacher and students, all other records generated by Principal Nielson, as well as reports by students about what happened the day before the P.E. class;
5. All interview transcripts, audio recordings, and summaries of teachers, employees, and external persons interviewed as part of the school and district investigations, and all witness statements for the district investigation, including students, district employees and external persons;
6. All collected evidence including photos, videos, digital communications, and other relevant materials for both investigations;
7. All investigation reports, including the final investigation reports for both the school and the district investigations, including the summary of all findings, conclusions, and recommendations;
8. All meeting minutes and audio/video records associated with both investigations, including both open and closed meetings, as well as meetings that involved the Sevier School Board;
9. All disciplinary records created because of the school investigation and/or district investigation, including disciplinary notices/warnings, suspension letters, corrective action plans, or any other documentation outlining consequences imposed upon the teacher as a result of misconduct, any corrective action for SSMS in general, and all disciplinary action records for Eric Baker since the date of his hire to the present related to any matter;
10. All records of communication (i.e., text messaged, emails, social media messages (Facebook Messenger), notes, reports, and other written statements) associated with the P.E. department investigations and its aftermath, including records created by or provided to any of the following: Michelle Nielson, Cade Douglas, Michael Willies, Nolan Anderson, Kycen Winn, Kimberly Keisel, Eric Baker, Christopher Nielson, arson Christensen, Chad Lloyd, John Foster, Ryan Savage, Jack Hansen, Dixie, Rasmussen, and Richard Orr from 11/21/22 through the present;
11. The name of the lawyer and the agency/firm that has worked with the District related to the investigation and its aftermath; and
12. A copy of all records (prepared statements, emails, other written documents) created but not previously provided to the Kummers relating to the transparency request, including a copy of all communication records created by/received by board members (Jon Foster, Ryan Savage, Jack Hansen, Dixie Rasmussen, and Richard Orr).
The records manager for Respondent responded to the request by providing many records, denying requests that were not records under GRAMA, denying requests of private and protected records, and redacting several records that were partially private or protected. Petitioner appealed the decision to the Chief Administrative Officer (“CAO”). In a written decision, the CAO provided some additional records he deemed subject to public disclosure and denied the appeal for the remaining requests.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision disputing all redacted and withheld documents. At the Petitioner’s request, on September 25, 2023, Respondent provided a more detailed Preliminary Response to the Committee of the records provided, withheld, and redacted. On November 16, 2023, 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
We are asked to review whether the withheld records are properly classified and restricted under GRAMA. We are also asked to review whether the surveillance video of the gymnasium may be disclosed pursuant to federal law.
STATEMENT OF REASONS FOR DECISION
I. In Camera Review of Disputed Records
In determining if a record is properly classified and withheld, the law grants this committee the authority to review the disputed records in camera. Utah Code § 63G-2-403(9)(a)(ii). At the hearing, the Committee attempted to review the records in camera but was met with technical difficulties. The records needing to be reviewed consist of 77 documents. Because of the technology problems we encountered and the volume we need to review, we find it best to continue this part of the proceeding to a future date.
II. Federal Law Application to Video Surveillance
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, if a record is governed or limited by another statute, then access to the record is governed by the specific provisions of that statute. Utah Code § 63G-2-107(1)(a). And if the requested record is an education record as defined in the Family Educational Rights and Privacy Act (“FERPA”), 34 C.F.R. § 99, then the records are governed by those laws and regulations.
The record sought here was the same exact record at issue in Kummer I. Respondent argues that Petitioner’s request for the record is barred because his wife’s request in Kummer I essentially grants him the same access to the record and thereby makes his request duplicative. GRAMA relieves a governmental entity from responding to a request that “unreasonably duplicates prior record requests from that person.” Utah Code § 63G-2-201(7)(a)(iv). However, we aren’t persuaded by this interpretation.
Subsection 201(7)(a)(iv) relates to duplicative requests “from that person” who made the prior requests. According to GRAMA’s definition, a “person” means “an individual.” Utah Code § 63G-2-103(17)(a). Mrs. Kummer is the individual who filed a request for the subject record previously. Petitioner is his own individual who seeks the same record now. Nothing in GRAMA disqualifies spouses from filing separate requests for the same record. Accordingly, we find that Petitioner’s request for the gymnasium surveillance video is not duplicative of the request made in Kummer I.
Respondent proceeds to argue that even if Petitioner’s request is not duplicative, access is still restricted under FERPA and it reasserts mostly the same arguments it advanced in Kummer I, with the exception to a new argument we discuss below. In response, Petitioner makes the same arguments Mrs. Kummer made in Kummer I. With both parties putting forward the same arguments from before on this subject record, we, of course, follow the same line of reasoning we had in concluding that the records must be disclosed.
FERPA is a federal law that protects a student’s privacy by “limiting the transferability of their records without their consent.” U.S. v. Miami Univ., 294 F.3d 797, 806 (6th Cit. 2002). FERPA’s protections over student privacy apply only to “education records,” which it defines as “those records, files, documents, and other materials which . . . contain information directly related to a student” and are “maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A).
As we noted in Kummer I, the courts that have examined FERPA disputes have instructed that the contents of a record are irrelevant in determining if a record constitutes an “education record” under FERPA. Bryner v. Canyons School Dist., 2015 UT App 131, ¶20 (“Notably, Congress made no content-based judgments with regard to its ‘education records’ definition.”) (quoting Miami Univ., 294 F.3d at 812). Thus, in determining whether a record is an “education record” the central question is whether the record directly relates to the student. See Kummer I at 4-5.
In Kummer I, we found through an in camera review that the requested surveillance video did directly relate to A.K. and, therefore, was an education record. Kummer I at 5. Therefore, we find that determination to apply here as well.
As in Kummer I, Petitioner argues that Bryner v. Canyons School Dist. controls the disposition of the case. To this, Respondent raises a new argument it didn’t raise previously; that being that GRAMA’s Section 107 was amended one year after Bryner and effectively abrogates its holding. However, in looking at the text of Subsection 107(2)(c) and a close analysis of Bryner, we don’t agree. Bryner stood for the proposition that as long as the video footage was redacted, FERPA no longer governed the record and it could be disclosed under GRAMA. In our reading, nothing in the statute supersedes Bryner and nullifies its holding.
Therefore, we find that as Petitioner is willing to pay for redactions of the students’ faces, Respondent has a duty under GRAMA to make those redactions and deliver the requested video.
Since the FERPA issue here is identical with Kummer I, which is currently pending judicial appeal (Sevier County School Dist. v. Shana Kummer and Utah State Records Committee, case no. 230600084, (Sixth Dist. Court), we hereby bifurcate this matter so that Respondent may seek to join our determination here on the surveillance video with that appeal if it so chooses.
ORDER
THEREFORE, in accordance with our Decision above, Respondent shall redact the personally identifiable information of all students in the gymnasium video footage, except for A.K. and then deliver the requested video to Petitioner. In accordance with Kummer I, the Respondent may charge Petitioner a reasonable fee to cover the costs of redaction.
The remainder of this proceeding is continued to a later date to allow the Committee the opportunity to review the records in camera. A new order will be issued concerning those records when we reconvene and decide this matter.
It is so ordered.
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).
Entered this 28 day of November 2023
BY THE STATE RECORDS COMMITTEE
Kenneth R. Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ALISHA ELLINGTON, Petitioner, v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent,
DECISION AND ORDER
Case No. 24-06
By this appeal, Alisha Ellington (“Petitioner”), requests records allegedly held by Department of Health and Human Services (“DHHS”) (“Respondent”).
FACTS
Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On September 5, 2023, Ms. Ellington requested the following records from November 2022 to the date of submission:
1. All correspondence including work IM chats between Jenni Wagner, Kelly Oakeson, Andreas Rohwasser, Denice Graham (Division of Human Resource Management (“DHRM”) employee), Jennifer (DHRM employee) pertaining to me, my employment, my FMLA, and my ADA Accommodation request.
2. All correspondence between Denice Graham, Andreas Rohwasser, and the Attorney General’s Office (“AGO”) pertaining to my employment, FMLA, and ADA Accommodation request.
On September 20, 2023, Department GRAMA Coordinator Dianna Sanchez issued a letter explaining extraordinary circumstances and that she estimated a response by October 18, 2023. The extraordinary circumstances were that the Department was processing a large number of records requests and the decision to release records involves legal issues that require the Department to seek legal counsel for the analysis of statutes, rules, ordinances, regulations, or case law. That same day, Petitioner appealed the extraordinary circumstances letter to the designee of the Department’s chief administrative officer (“CAO”), Administrative Law Judge (“ALJ”) Eric Stott. Petitioner voiced her concerns that the State is abusing GRAMA to cover up retaliation in her current job.
September 26, 2023, ALJ Stott responded, upholding the decision that extraordinary circumstances exist. He found “the number of GRAMA requests [the Department] is processing is large enough to warrant a longer response time. Moreover, [the Department] has to wait for another agency to search, acquire, and produce records that are responsive to the request.” ALJ Stott explained that the Division of Technology Services (“DTS”) provided the records on September 22, 2023, and at least one Department employee worked additional unscheduled hours to begin processing the documents. Those documents still needed to undergo legal review. The estimate had moved up to October 10, 2023, and given the circumstances, ALJ Stott said that date was reasonable.
The Department was notified on September 28, 2023, that Petitioner was appealing ALJ Stott’s extraordinary circumstances decision, and that a hearing before the State Records Committee was scheduled. On October 10, 2023, Ms. Sanchez provided the Petitioner with responsive public records and information, and private records and information for which Petitioner was the subject. Many of the delivered records contained redactions, some were substantial. Ms. Sanchez explained the redaction as follows: “private personal information for individuals other than Petitioner was redacted under Sections 63G-2-302(2)(a) and (2)(d); protected investigative records were redacted under Section 63G-2-305(10(a); Zoom links, meeting ID’s, passcodes, and other information that, if disclosed, could jeopardize the security of governmental recordkeeping systems were redacted under Section 63G-2-305(12); attorney-client privileged information was redacted under Section 63G-2-305(17); work product was redacted under Section 63G-2-305(18); and other drafts and draft language were redacted under Section 63G-2-305(22).”
On October 11, 2023, Petitioner submitted an appeal request directly to the SRC, instead of filing an appeal with the CAO as instructed in the GRAMA response and required by statue. Ms. Shaw, SRC’s secretary, emailed Petitioner and explained that her appeal before the Committee regarded the claim of extraordinary circumstances and if she wanted to appeal the redactions, she would need to appeal to the CAO first. The Petitioner filed an appeal with ALJ Stott on October 13, 2023, saying that the records were not complete, did not include external communications, were improperly redacted, and were doctored and fabricated.
Petitioner has now appealed to the State Records Committee (“Committee”), On January 4, 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
We must determine whether the redacted information was correctly classified and withheld.
STATEMENT OF REASONS FOR DECISION
At the hearing, the Committee reviewed the records in camera pursuant to Utah Code § 63G-2-403(9)(a). Upon review, the Committee now releases our findings.
Under GRAMA, “a person has the right to inspect a 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 protected under Section 63G-2-2305 is not a public record. Utah Code 63G-2-201(3)(a). If a record is properly classified as protected, then, in order to lift its restriction, the requester must show, “by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1).
Although the records are heavily redacted, we find that the redactions are proper pursuant to Section 63G-2-305(18). That section protects “records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding.” Utah Code § 63G-2-305(18). The records were created by an employee and were done so in anticipation of either a judicial or administrative proceeding most likely lodged by Petitioner. Although Petitioner testified at the hearing that she had not filed an administrative complaint before her initial GRAMA request, it’s apparent from the record before us that the Respondent has a reasonable anticipation of one occurring. Therefore, we find that the records are properly classified with respect to Subsection 305(18) and the redactions are proper.
With the documents properly classified, we now turn to whether the interests favor disclosure. For this, we look to Schroeder v. Utah Attorney General’s Office, 2015 UT 77 for guidance. In Schroeder, the Utah Supreme Court examined a GRAMA request where the requested records were protected attorney-client privilege and attorney work product. The Court explained that:
. . . many of the exceptions to GRAMA’s disclosure requirements involve policies that virtually always outweigh the public’s right to know. . . . But while the public’s right to know is, in the abstract, often less compelling than these policies, the weight of any particular policy varies depending on the nature of the document at issue. For example, the interest in protecting attorney work product is more compelling during ongoing litigation than it is years after a dispute has been resolved. Schroeder, ¶55.
Thus, while GRAMA promotes the “easy and reasonable access” of public records (Utah Code § 63G-2-102(3)(a)), it also protects the government’s interests in situations where, like here, the governmental entity must prepare itself to defend against possible litigation or administrative actions. In such situations, attorney-client privilege and work product are critical preservations for the entity.
In this case, administrative or judicial complaints aren’t in the rear-view mirror. From the presentation of the parties and the contents of the records we reviewed, it’s apparent that the anticipation of a future proceeding is reasonable. Because we find that the documents were created in anticipation of a future judicial or administrative proceeding, the burden is on Petitioner to show, by a preponderance of the evidence, that the interests favoring disclosure are at least equal to those the government has in preparing to defend itself in an adversarial proceeding. We find that Petitioner has not shown the requisite evidence to satisfy the statute and thereby compel us to invade the policy protections of Subsection 305(18).
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 29 day of January 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MIKI MULLOR, Petitioner, v.
TOWN of HIDEOUT, Respondent.
DECISION AND ORDER
Case No. 24-15
By this appeal, Miki Mullor (“Petitioner”), requests a fee waiver for records held by Respondent, the Town of Hideout (“Respondent”).
FACTS
On August 5, 2023, Petitioner made a record request to the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested emails that were sent by Jan McCosh, the Respondent’s main administrator, from July 1, 2023 to the present. In his request, Petitioner also requested a fee waiver, claiming the request primarily benefited the public. On September 12, 2023, Appellee declined the request for a fee waiver, stating that the request does not explain how the records would primarily benefit the public. The response then quoted him an approximate fee of $3,000 to fill the request. The fee encompassed the time required for Hideout’s IT contractor to retrieve responsive documents on the email servers and then convert them to a deliverable format. The Respondent informed Petitioner that his request was overly broad and invited him to narrow his request.
Petitioner filed an appeal to the Respondent’s chief administrative officer who denied the fee waiver appeal on October 6, 2023.
On November 2, 2023, Petitioner filed an appeal with the State Records Committee (“Committee”). On February 15, 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
We are asked to determine whether the denial of the fee waiver request was reasonable.
STATEMENT OF REASONS FOR DECISION
GRAMA states 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, the legislature has also “balanced the public’s right to access government documents against the government’s interest in operating free from unreasonable and burdensome records requests.” Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 137, ¶22. One way of balancing and protecting the government’s interest in that regard is to impose fees for the production of records. While the law acknowledges that fees for records “does, to some extent, limit access to public records,” the law does not allow “for a lawful custodian to bear the burden of paying for all expenses associated with a public record request.” Id., ¶25. Therefore, GRAMA allows a governmental entity to assess compilation fees for a record request if the request “requires the agency to extract materials from a larger document or source and it is not feasible or reasonable to allow the requestor to compile the records.” Id., ¶28; See also Utah Code § 63G-2-203(2)(a). Further, Graham has given clear guidelines as to when a governmental entity may assess fees. The Court explained that a fee may be assessed when a request specifies that the documents be compiled in an irregular format and the requester consents to the fee; or when the records have to be extracted from a larger source and it’s not feasible to allow the requester to compile the records himself. Graham, at ¶28. We also note that, although not required, GRAMA encourages a fee waiver if releasing the records would primarily benefit the public rather than a person. Utah Code § 63G-2-203(4)(a). In any review of a governmental entity’s decision to deny a fee waiver request, “the ultimate question is not whether the entity abused its discretion, but whether its decision was reasonable.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52.
At the hearing, the Respondent testified that it gave notice to Petitioner that his appeal was overly broad and it invited Petitioner to narrow its request, which would necessarily lower the fee. The Respondent also testified to the work that its IT contractor would have to go through to retrieve responsive emails and then convert them to a deliverable format, which could not be done by the Petitioner. From this, we find that the records do need to be compiled in a format other than how they are regularly maintained, the records must be extracted from a larger source and Petitioner cannot do that himself, and the Respondent did give Petitioner notice of the fee and an opportunity to modify the request as Graham requires. Therefore, the decision to assess the fee was reasonable.
Also during the hearing, the parties argued over Petitioner’s status as a citizen journalist and how that classification affects the fee waiver denial. The Respondent argues that Petitioner is not a “media representative” as that term is contemplated in GRAMA, while Petitioner argues that he is. While it may be true that traditionally a “media representative” was a member from a major news syndicate or broadcast company, we acknowledge that times are changing. GRAMA does address the definition of “media representative” in Subsection 63G-2-203(5)(a); however, that provision is not overly helpful for this situation. Nonetheless, we determine that we need not address this issue because even if Petitioner was a member of a traditional media organization, GRAMA would still not require a fee waiver. The statute clearly states that fee waivers are “encouraged,” not mandatory. We do take this opportunity, however, to make it clear that, without deciding the issue, we don’t necessarily agree with the Respondent’s argument that Petitioner is not a “media representative” under GRAMA.
Last, we turn to the ultimate question of whether the decision to deny the fee waiver was reasonable. Jordan River Restoration Network, at ¶52. At the hearing, it was revealed how small of a municipality the Respondent is. In a town of approximately 1,200 people, the office staff is also relatively small, as evidenced by the need to contract with an IT contractor for those services and needs. Even if we take Petitioner at his word that the request would primarily benefit the public, given the small office staff and limited resources the Respondent has, and the voluminous nature of Petitioner’s records request, we find that the decision to deny the fee waiver was reasonable. See Jordan River Restoration Network, at ¶83 (“Despite finding that JRRN’s “purpose was to primarily benefit the public,” the court concluded that the City’s “decision to deny the requested fee waiver … was reasonable given the voluminous nature of the request and the effort necessary to compile the requested documents.”) (Ellipses original).
With all of that said, we encourage Petitioner to submit a new narrower records request.
ORDER
THEREFORE, in accordance with this Decision, Petitioner’s appeal is hereby DENIED.
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).
Entered this 26 day of February 2024
BY THE STATE RECORDS COMMITTEE
Kenneth R. Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LOGAN CITY, Petitioner, v.
BRADY EAMES, Respondent,
AMENDED DECISION AND ORDER[1]
Case No. 24-22
By this petition, Logan City (“Petitioner”) seeks a formal order declaring Brady Eames (“Respondent”) a vexatious requester for a 12-month period.
ISSUES FOR REVIEW
We must determine whether Respondent is a vexatious requester under Section 63G-2-209, and, if so, the proper amount of time which Petitioner may be relieved from responding to Petitioner’s record requests.
STATEMENT OF REASONS FOR DECISION
Utah Code § 63G-2-209 grants the Utah State Records Committee (“Committee”) the authority to declare an individual a “vexatious requester” and grant relieve a governmental entity from having to respond to the individual’s record requests for a period of time that may not to exceed one year. Utah Code § 63G-2-209(8)(b). In determining whether an individual is a vexatious requester, this Committee must consider the following factors as prescribed by statute:
(a) the interests described in Section 63G-2-102;
(b) as applicable:
(i) the number of requests the individual has submitted to the governmental entity, including the number of pending requests;
(ii) the scope, nature, content, language, and subject matter of record requests the individual has submitted to the governmental entity;
(iii) the nature, content, language, and subject matter of any communications to the governmental entity related to a record request;
(iv) any pattern of conduct that the Committee determines to constitute:
(A) an abuse of the right of access to information under GRAMA; or
(B) substantial interference with the governmental entity’s operations; and
(c) any other factor the Committee considers relevant.
Utah Code § 63G-2-209(9)(a)-(c). When we examine these factors, we keep in mind that the governmental entity need not prove each individual factor. Rather, the evidentiary burden on the government is to prove through a totality of the circumstances that the individual is a vexatious requester. Utah Administrative Rule R35-1-3(2). This means that we focus on the factors listed in Subsection 209(9) in the aggregate. Thus, we look at each of the statutory factors individually but consider them overall in light of the relevant facts and circumstances giving rise to the petition before us.
I. The Interests Described in 63G-2-102
The interests outlined in Section 102 are an individual’s right to access information concerning the public business, and the government’s interest in being allowed to restrict access to certain records under the provisions of GRAMA. Utah Code § 63G-2-107(1)-(2). While GRAMA offers numerous protective policies under which a governmental entity may restrict access, the legislature also allowed the entity to restrict access in the form of assessing a reasonable fee for records. This was addressed directly in Rathmann v. Board of Dirs. Of Davenport Comm. Sch., 580 N.W.2d 773, 778 n.5 & 778-90 (Iowa 1998) where the Court said, “We recognize that permitting [public] entities . . . to charge members of the public a fee to cover the cost of retrieving public records does, to some extent, limit public access to public records.” (quoted by Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist., 1999 UT App 136, ¶25. Thus, in essence, it’s clear that GRAMA attempts to balance the competing rights of both the public and the government.
In essence, the interests outlined in Section 102 are the requester’s right of access to information concerning the conduct of the public’s business, and the public policy interest in allowing the government to restrict access to certain records. Utah Code § 63G-2-107(1)-(2). In other words, “[i]n enacting GRAMA, our Legislature has balanced the public’s right to access government documents against the government’s interest in operating free from unreasonable and burdensome records requests.” Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist., 1999 UT App 136, ¶22. With these interests in mind, we look at how they bear on the case before us.
Respondent has been responding to Petitioner’s voluminous requests since approximately 2016, totaling over 500 requests. At times, the requests have veered away from the public records listed under Section 63G-2-301 and intruded into personal records that Respondent doesn’t maintain. For instance, on March 9, 2022, Petitioner requested personal documentation from Respondent’s attorney, Mohamed Abdullahi. When that request was denied, Petitioner continued to email Mr. Abdullahi directly numerous times, questioning his ability to participate in a mediation between Petitioner and Respondent, his ability to practice law, and payment of his licensing fees. Petitioner copied dozens of individuals across the state in these emails, including the personnel from the Utah courts, the Attorney General’s Office, and private law firms.
In 2023 alone, Respondent filed over 100 record requests with Petitioner. In the year to date, he has filed nearly 20. Petitioner testified that 90% of all GRAMA requests are from Respondent. This disproportionate number of requests creates an administrative bottleneck in filling the requests, not just for Respondent but also for other citizens who’ve filed a request. The bottleneck is made worse when he files multiple requests within a short period of time. For instance, there have been times when Respondent filed requests for upward of 35-40 records within two days of each other. Naturally, such a large number of requests creates a serious hardship on Petitioner in responding because GRAMA requires governmental entities to respond to record requests within 10 business days. Additionally, because most of the requests are for records concerning different departments within the city government, multiple staff members must put their work aside to aid in retrieving the records. As Petitioner’s Finance Director stated in his sworn affidavit, on one particular occasion, just responding to Respondent’s March 19, 2023, request took one hour to do, which he was not charged for.
From the evidence presented to us, we find that Respondent’s requests create a burden that encumbers Petitioner’s ability to handle record requests efficiently.
II. Scope and Nature of the Requests
The next factor we are to consider is the scope and nature of the requests. In addition to the volume of requests, each of Petitioner’s requests are unnecessarily difficult to read and decipher. Rather than simply and succinctly describing the records he seeks, Respondent fills his request with acronyms and definitions, bold and italicized font, multiple subparts that contain additional requests along with irrelevant bases for the request, and statutory references. Additionally, each subpart typically requests records held by a different department within the city. This, of course, necessitates several conversations and coordination efforts among numerous people to decipher, process, and fill the request. For example, on May 10, 2023, Respondent sent a single GRAMA request to Petitioner. However, the first subpart of his request included information from seven different cities, Utah State University, and three multi-million dollar bonds. The third subpart sought information on the same seven cities, the university, and information regarding labor, insurance, supplies, equipment, and repairs regarding Petitioner’s wastewater treatment plant. The request required coordination with the different entities and departments.
In another example, in his September 12, 2023, request, Respondent submitted two separate requests. The first asked for records belonging to the City Treasurer. That particular request consisted of five parts with parts three and five including four subparts. The second request was for information held by Respondent’s Risk Manager. In parts nine and ten of that request, he requested information held by the City Treasurer. Thus, embedded in these two GRAMA requests were over twenty individual record requests across multiple departments within the city government.
If his request is denied, Petitioner’s appeal becomes even more convoluted and complex to decipher as his email not only includes the email thread history from the initial request, but in addition to the jumbled boldened and italicized text, he inserts new subparts in the appeal, which, at times, include immaterial allegations of misconduct. The additional length and difficulty to read creates an additional time burden on the chief administrative officer in figuring out what exactly is being appealed.
How Respondent structures and formats his requests is concerning to us, especially in light of the voluminous requests he sends. Respondent may be attempting to be formal and legalistic in his drafting, but his execution of that intention is repugnant to GRAMA’s policies and the time of the staff who must process the requests. The legislature’s intent behind GRAMA was to “promote the public’s right of easy and reasonable access to unrestricted public records.” Utah Code § 63G-2-102(3)(a). But Respondent’s practice of submitting esoteric and convoluted record requests creates unnecessary difficulty in obtaining the records. Simply put, Respondent is standing in his own way. Because of his wordy labyrinthine requests, he is making access to records difficult and unreasonable because Petitioner’s employees must spend inordinate amounts of time trying to decode each request before receiving another. We believe that Petitioner would be more efficient and timely in responding to requests if staff didn’t have to filter through a dozen acronyms and their associated definitions, several subparts, different headings, included links and references, direct and indirect allegations, and irrelevant superfluous language just to understand what is being requested.
From the evidence presented to us, we find that the nature of Respondent’s requests are unnecessarily confusing and cumbersome and result in significant time lost for Petitioner’s staff.
III. Scope, Nature, and Language in Communications Between the Parties
Petitioner showed that Respondent has a history of resorting to personal attacks and accusations against Respondent’s staff. For example, on March 9, 2022, Respondent sought Mr. Abdullahi’s sworn oath form, job qualifications, resume, date of employment, and “any documentation” showing Mayor Daines appointed Mr. Abdullahi as a “training attorney.” Respondent provided Mr. Abdullahi’s law graduate certificate, resume, internship agreement, and university externship agreement. After that, Respondent sent an email to Respondent and twenty-one other individuals asserting that Mr. Abdullahi was not yet a member of the Utah State Bar. From there, Respondent sought additional records related to Mr. Abdullahi, including payroll records and again voiced concern to all individuals he copied on his email that Mr. Abdullahi was acting as an attorney when not under oath. But that was not enough for Respondent. Over a year later, on May 15, 2023, Respondent raised the issue again in another group email.
In another instance, once Respondent replied to Petitioner’s September 12, 2023, request informing him that it would assess a $75.00 fee for the records, Respondent came back accusing the Logan City Recorder of extortion and violation of his Constitutional rights. These accusations continued throughout the pendency of his appeal and were even voiced during the hearing with this Committee. See Eames v. Logan City, Decision and Order no. 2024-41, Utah State Records Committee (entered April 1, 2024).
These examples and the affidavits supporting them show that Respondent resorts to personal attacks and accusations when he doesn’t get his way. The obsessive fixation on particular individuals is not only out of step with GRAMA, but it is alarming and potentially dangerous. This Committee finds no justification behind Respondent locking on to individual employees and relentlessly harassing them with a bombardment of group emails in which dozens of people from across the state are copied. We find that the evidence supports the fact that Respondent’s communications with Respondent’s employees is indeed uncivilized and deserving of reproach.
IV. Pattern of Behavior
The evidence supports that the issues above are not isolated instances. Rather, Respondent engages in such behavior regularly. We find that because of the regular behavior discussed above, Respondent does engage in a pattern of conduct that abuses the right of access to information and substantially interferes with Respondent’s operations.
V. Other Relevant Factors
Subsection 63G-2-209(9)(a)-(c) allows the Committee to examine any other factors it deems relevant in deciding whether Respondent is a vexatious requester. We take notice that Respondent was declared a vexatious requester in Office of the Utah State Treasurer v. Eames, Decision and Order no. 2023-60, Utah State Records Committee (entered Nov. 28, 2023). In that case, many of the same patterns of behavior were present as the one before us. We ruled that Respondent was a vexatious requester and ordered that the State Treasurer was relieved from responding to any of Respondent’s record requests for 7 months. One particular issue in that case that is highly related to the situation here was Petitioner’s continual and constant challenges to the State Treasurer’s authority to charge a fee for a record request. In a number of cases that came before us, including Respondent’s own appeals, we explained that the law allows a governmental entity to charge a fee. As a result, Respondent is fully aware that a governmental entity may assess a fee for record requests, especially for voluminous requests which require extraction and conversion to a deliverable format. See Graham, at ¶26 (“An agency may, however, assess fees in conjunction with a record request that involves extracting materials from a larger document or source and compiling them in a different form.”) Nonetheless, despite being fully aware, Respondent continues to file appeals to challenge the fees. Through the many orders this Committee has issued on the subject, Respondent has no excuse to not understand the current state of the law and when a governmental entity may not charge a fee. Consequently, we find it fair to say that many of his appeals over this issue are arguably frivolous. And by continually appealing an issue that has been adjudicated numerous times, Respondent drains Petitioner’s legal resources as its attorneys must divert time and attention away from pressing matters to deal with deadlines and hearings before this Committee. As the totality of the circumstances allows us to look at all factors, including any others that we deem relevant, we find that Petitioner’s continual efforts to adjudicate an issue that the courts and this Committee have clearly ruled on constitutes an ongoing abuse of GRAMA.
CONCLUSION
As stated above, we believe that while Respondent’s intentions to be a government watchdog are noble, he is more of an obstacle procuring the records he seeks than Respondent. His own pattern of behavior has already resulted in an order declaring him vexatious and now a second. Because of the factors and considerations above, we conclude that Respondent is a vexatious requester and that Petitioner is relieved from its legal duty to respond to any of Petitioner’s record requests for a period of 12 months from the date of this Decision and Order. Additionally, to accord with Office of the Utah State Treasurer v. Eames, supra, we make clear that Petitioner’s relief applies also to record requests Respondent has previously filed and are still pending. Thus, Petitioner is relieved from responding to the pending requests Respondent has submitted and Petitioner has not yet answered, processed, or filled.
ORDER
THEREFORE, in accordance with this Decision, the petition is GRANTED. Petitioner has no legal obligation to respond to any record requests submitted by Petitioner for 12 months of this order being entered.
It is so ordered.
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).
Entered this 29 day of April 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
1. We have modified our original decision to address whether our order applies to record requests pending with Logan City at the time the order was entered. We also corrected a minor non-substantive typographical error.
",Granted,2024-04-01T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JESSICA MILLER, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent,
DECISION AND ORDER
Case No. 24-28
By this appeal, Jessica Miller, for the Salt Lake Tribune (“Petitioner”), requests records allegedly held by Utah Attorney General’s Office (“Respondent”).
FACTS
On October 18, 2023, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking “digital copies of Attorney General Sean Reyes’ schedule from January 1, 1028, to present day. I am specifically requesting a calendar of events related to state business and his capacity as an elected official. If his calendar includes personal events, please redact or remove that information.”
On November 1, 2023, the Respondent denied the request, stating that: “The Office does not maintain an official schedule for the Attorney General. Additionally, Utah Code §63G-2-103(22)(b)(ix) provides that ‘a daily calendar or other personal note prepared by the originator for the originator’s personal use or for the personal use of an individual for whom the originator is working’ is not a ‘record’ subject to GRAMA. Accordingly, the Office does not maintain any records responsive to your request.”
Petitioner appealed to Respondent’s chief administrative officer (“CAO”) on November 30, 2023, challenging the Respondent’s decision. Importantly, Petitioner argued that Attorney General Reyes’s schedule was already deemed a public record under our previous decision in Knox v. Attorney General’s Office, Decision and Order no. 2023-22, Utah State Records Committee (entered May 26, 2023). But the CAO denied the appeal on the basis that our decision in Knox was appealed to district court and pending an outcome.
Since the CAO’s decision, and during the pendency of this appeal, the district court decided Knox. The Court found that under the plain language of the statute, Attorney General Reyes’s calendar was a public record, effectively affirming this Committee’s decision. The same day the Court made the ruling, the legislature passed Senate Bill 240 (General Session 2024) (Spon. Bramble, C. & Brammer, B.) which amended GRAMA to clearly state that daily calendars were not public records. The bill was signed into law the following day.
On April 18, 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 Attorney General Reyes’s calendar is a public record under GRAMA in light of the district court’s decision and Senate Bill 240 being signed into law.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). “Record” is defined by GRAMA as, essentially, any documentary material regardless of physical form or characteristics that is retained by a governmental entity and where all of the original information is reproducible. Utah Code § 63G-2-103(25)(a). But GRAMA provides a list of eighteen items which the legislature has expressly stated are not records under GRAMA and thereby would be exempt from a public record request. Among the items that are expressly delineated as ‘not records’ under GRAMA are: “a daily calendar or other personal note prepared by the originator for the originator’s personal use or for the personal use of an individual for whom the originator is working.” Utah Code § 63G-2-103(25)(b)(ix). Both this Committee and Judge Corum found that the statute wasn’t read to mean that a public employee’s calendar in general wasn’t a record. Rather, the structure of the statute indicated that only calendars for personal use were off limits under GRAMA. But since then, and in response to our decision in Knox, the legislature amended GRAMA to unequivocally remove any type of daily calendar from GRAMA’s reach.
Respondent concedes that S.B. 240 is not retroactive, and therefore, this case must be analyzed using the same statute at issue in Knox rather than the newly amended language recently signed into law. But it distinguishes Knox from this case in light of the legislative amendment because, as Respondent argues, the amendment makes clear that the legislative intent from the beginning was that calendars are not, and never were, public records. We don’t agree.
Because S.B. 240 became effective on February 28, 2024, we must apply Subsection 63G-2-103(25)(b)(ix) as it was written at the time of Petitioner’s initial GRAMA request—October 18, 2023—the same version of the statute at issue in Knox. As a result, this case is identical to Knox. While it’s true that the legislature has amended GRAMA to clearly state that any type of calendar is not a record under GRAMA, that amendment doesn’t convince us that our interpretation of the prior statute was incorrect. Accordingly, we refuse to deviate from Knox, and we find that under the prior statute, Petitioner’s request must be granted.
ORDER
THEREFORE, in accordance with this Decision, Petitioner’s appeal is hereby GRANTED. Respondent shall deliver the requested record pursuant to her request.
It is so ordered.
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 c 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).
Entered this 29 day of April 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COREY COLEMAN, Petitioner, v.
VERNAL CITY, Respondent,
DECISION AND ORDER
Case No. 24-37
By this appeal, Corey Coleman (“Petitioner”), requests records allegedly held by Vernal City (“Respondent”).
FACTS
In court proceedings held on September 20, 2022, in the 8th District Court, Respondent’s City Recorder and Records Officer referenced missing timecards in her testimony. On October 4, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”) that specifically stated the following:
As stated under oath from Vernal City in the court of law on September 20, 2022 [sic] “there are some timesheets that are missing” [sic] Please provide a police report, any investigation, any emails associated with the missing timecards, and payroll records for the employee of the missing timecard. The date of the missing timecards is unknown and Vernal City will need to identify it accordingly as they made the statement for the purpose of investigating factual statements.
On October 16, 2023, Respondent responded to Petitioner’s request. The response highlighted the lack of specificity in the request as required under Utah Code § 63G-2-204 and concluded that it could not interpret what record was being requested. The response also noted that timecards older than January 2020 had been destroyed in accordance with its retention schedule. Additionally, Petitioner was informed that “no police report, investigation or emails exists regarding missing timecards” and that “payroll records are classified as private records” under GRAMA.
Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”), who failed to respond to the appeal, which constituted a constructive denial of the appeal under Utah Code § 63G-2-401(5).
Petitioner has now appealed the CAO’s denial to the State Records Committee (“Committee”). On May 16, 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 the propriety of the record request.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, that right is subject to the requestor identifying “the records with reasonable specificity.” Utah Code § 63G-2-201(6)(b). If the request is not reasonably specific, the governmental entity has no legal duty to fill the request. Id. This Committee interprets the “reasonable specificity” requirement as, the governmental entity “knew or should have known” what records are being requested. Dodd v. Salt Lake City, Decision and Order no. 24-03, Utah State Records Committee (entered Jan. 16, 2024).
Here, Petitioner’s record request was based on Respondent’s record officer’s court testimony where she referenced missing timesheets. Neither party has supplied any evidence that the record officer elaborated on that remark or gave additional context. Thus, taking the evidence before us at its face, we find that the reference to missing timesheets was all that Petitioner had to go on in forming his GRAMA request. With that in mind, we look at his request.
Petitioner didn’t request the missing timesheet, or any timesheet at all. Rather, he specifically requested certain records that pertained to the missing timesheet; namely, police reports, investigatory records, emails, and payroll records. Petitioner noted in his request that he couldn’t provide a date range for the records because no date range was given in the record officer’s testimony.
Respondent argues that the request was unreasonably specific, but how much more specific could Petitioner be when he has no other information than that which was given in a court testimony? Without more information given in the testimony, Petitioner has nothing further to offer to identify the records. The record officer offering the testimony obviously had a specific timesheet(s) in mind when the remark was made. This indicates that Respondent was aware of at least one missing timesheet. And if that is true, then Petitioner has a reasonable basis to assume records exist concerning the missing timesheet(s). Because Petitioner phrased his request according to the information he gained from the record officer’s testimony and had nothing more to go on than that, and because the request provided the exact type of records “associated with the missing timecards,” we find that Respondent should have known that Petitioner was specifically seeking a police report, investigatory records, emails, and payroll records that are associated with or relate to the missing timecards. Thus, Petitioner described what he sought with reasonably specificity and Respondent had a legal duty to fill the request pursuant to Subsection 201(6)(b).
In addition to claiming his request failed the specificity requirement, Respondent also informed Petitioner that the timecards predating 2020 could be destroyed per the retention schedule. Also, Respondent went on to state that “no police report, investigation or emails exists regarding missing timecards” and that “payroll records are classified as private records.” However, we have no evidence before us that supports that claim.
Per Utah Code § 63G-2-201(7)(b), governmental entities must perform a reasonable search for requested records. Then, before this Committee, the entity must show by a preponderance of the evidence that its search efforts were reasonable. Utah Administrative Code R35-1-3(1)(a). Nothing in Respondent’s written materials outlines the search efforts undertaken to find responsive records. As such, we cannot simply rely on the conclusory statements Respondent has made. Because we cannot conclude that Respondent performed a reasonable search, we find that, in light of our decision that Petitioner’s request was reasonably specific, Respondent must perform a reasonable search for the records, or produce to the Committee a detailed log describing its search efforts so that we may determine if its duties under the law are satisfied.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED. Because Petitioner’s request describes the records he seeks with reasonable specificity, Respondent shall perform a reasonable search for the records described or submit to this Committee a detailed log describing its search efforts to support its claims that no responsive records exist.
It is so ordered.
Entered this 24 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Cornwall, M., Biehler, E., Buchanan, M., and Peterson, L. voted unanimously in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROGER BRYNER, Petitioner, v.
UTAH DEPARTMENT OF HEALTH. Respondent.
DECISION AND ORDER
Case No. 16-26
By this appeal, Petitioner, Roger Bryner, seeks access to records held by Respondent, the Utah Department of Health.
FACTS
On February 9, 2016, Mr. Bryner made a records request via e-mail for "copies of the results of all blood alcohol tests performed in 2015" from the Utah Department of Health ("Respondent"), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Bryner indicated that Respondent could redact the names of individuals tested "if legally required" and in the alternative, provide summary data of "all levels tested." Mr. Bryner also requested a fee waiver for production of the records.
On February 16, 2016, the Chief Forensic Toxicologist for Respondent, denied Mr. Bryner's request stating that the records are private. He also denied Mr. Bryner’s request for a fee waiver for redacted records because "the Laboratory does not have dedicated staff for this type of work, creating the records you request would unreasonably interfere with the Laboratory’s duties and responsibilities." Mr. Bryner appealed the denial, and on February 24, 2016, the Executive Director for Respondent denied Mr. Bryner's appeal.
On March 14, 2016 Mr. Bryner filed an appeal with the State Records Committee ("Committee"), disagreeing with Respondent's denial of the records request and their decision to not grant a fee waiver. The Committee, having reviewed the arguments submitted by the parties, having heard oral argument and testimony on July 14, 2016, now 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 and -304.
2. Respondent provided testimony that the records are properly classified as "private" records because records showing the blood alcohol levels of individuals are "records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data." See, Utah Code § 63G-2-302(1)(b).
3. The Committee agrees with Respondent and finds that the primary classification by Respondent of the records as private non-public records is correct pursuant to Utah Code § 63G-2-302(1)(b).
4. In his records request, Mr. Bryner stated that Respondent "may redact names of persons who were tested…if required by law." The Committee determined that although the records are properly classified as private, the Respondent may create and release to the petitioner only the blood alcohol levels, stripped of any personally identifiable information, but it was the Committee’s opinion that there was no way to perform a statistical analysis or draw any reasonable conclusion based only on the blood alcohol levels without accompanying data which was properly classified under GRAMA as private.
5. Respondent claimed that redacted records could only be provided to Mr. Bryner either by: (1) Printing the records from the electronic database and manually redacting the names of the individuals from the printed pages; or (2) Requesting assistance from the Utah Department of Technology Services to write a computer program that would produce the records in a redacted or summary form. Respondent stated that either of these methods would incur great costs to Respondent.
6. Utah Code § 63G-2-203(1) states that a governmental entity may charge a "reasonable fee to cover the governmental entity's actual cost of providing a record." Actual costs may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person’s request. Utah Code § 63G-2-203(2)(a)(i).
7. In the case of fees for a record that is a result of "computer output other than word processing", the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information may be charged by the governmental entity as an "actual cost." Utah Code § 63G-2-203(2)(a)(iii).
8. A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record; or (3) The requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c). A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b).
9. After hearing testimony and reviewing all written arguments, the Committee finds Respondent's denial of Mr. Bryner’s request for a fee waiver was not an unreasonable denial. Respondent's explanations concerning the required redaction of the records, the time that redaction would take, and the anticipated cost to provide the information to Mr. Bryner, were reasonable and credible. The Committee also finds that Mr. Bryner failed to sufficiently prove any of the factors listed in Utah Code § 63G-2-203(4)(a-c).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, is DENIED in part and GRANTED in part, as to the records request, and DENIED in whole as to the request for a fee waiver.
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 its 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 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 26th day of July 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ALEX STUCKEY on behalf of SALT LAKE TRIBUNE, Petitioner, v.
UTAH STATE UNIVERSITY. Respondent.
DECISION AND ORDER
Case No. 16-42
By this appeal, Petitioner, Alex Stuckey, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah State University (“USU”).
FACTS
On May 31, 2016, Ms. Stuckey filed a request for records from USU pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Stuckey requested “any and all correspondence mentioning Torrey Green from 2009 to present” between specifically named individuals. In an email dated June 7, 2016, Mica McKinney, general counsel for USU, stated that the request was being denied because access to the records is restricted pursuant to the Federal Family Educational Rights and Privacy Act (“FERPA”) because the requested records directly related to USU’s records of a university student.
Ms. Stuckey filed an appeal with USU’s chief administrative officer, arguing that correspondence regarding students does not constitute a student record as defined under FERPA. When no response was given, Petitioner considered the non-response to be the equivalent of a determination denying access to the record as outlined in Utah Code § 63G-2-403(1)(b), and filed an appeal with the Committee. On October 13, 2016, a hearing was before the State Records Committee (“Committee”), where the parties were allowed to present their legal arguments. After considering all arguments by the parties, the Committee now 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. The disclosure of an education record as defined in FERPA (34 C.F.R. Part 99), that is controlled or maintained by a governmental entity, shall be governed by FERPA. Utah Code § 63G-2-107(2). Similarly, a record to which access is restricted pursuant to federal statute or federal regulation, is not a public record under GRAMA. Utah Code § 63G-2-201(3)(b). Further, disclosure of a record to which access is governed by federal statute or federal regulation, is governed by the specific provision of that statute, rule, or regulation. Utah Code § 63G-2-201(6)(a).
3. Petitioner argues that correspondence concerning a USU student is not a “student record” under FERPA. In a recent Utah Court of Appeals decision, the court discussed the applicability of FERPA to student records:
A plain reading of FERPA’s statutory language reveals that Congress intended for the definition of education records to be broad in scope… First, to qualify as an education record, the record must “contain information directly related to a student.” [Second,] a record must also be “maintained by an educational agency or institution or by a person acting for such agency or institution.” [Bryner v. Canyons Sch. Dist., 2015 UT 131, ¶¶ 20, 21, & 24, citations omitted]
The court thereafter held that GRAMA’s provisions will apply so long as they are not inconsistent with FERPA, and then found that FERPA generally restricts access to any personally identifiable information of students. Bryner, ¶ 32.
4. USU argued in its written materials that the requested records should be considered student records under FERPA because: (1) The records request specifically targeted records directly related to Mr. Green, a USU student; and (2) The responsive records are maintained by USU and employees acting for USU.
5. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the requested records are student records under FERPA, and therefore, disclosure or non-disclosure of the records are governed by FERPA. See, Utah Code §§ 63G-2-107(2), -201(3)(b), and -201(6)(a). Since FERPA restricts access to any personally identifiable information found in student records, USU’s decision to deny access to the requested records is upheld.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Alex Stuckey, is DENIED.
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 its 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 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 24th day of October 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JENNIFER BAPTISTA, Petitioner, v.
PLEASANT GROVE CITY. Respondent.
DECISION AND ORDER
Case No. 17-09
By this appeal, Petitioner, Jennifer Baptista, seeks access to records allegedly held by Respondent, Pleasant Grove City.
FACTS
In a request received by Pleasant Grove City (“City”) on December 22, 2016, Ms. Baptista requested all “drafts/notes of City Council Meeting Minutes taken by City Recorder during the meetings for the 2016 year” pursuant to the Government Records Access and Management Act (“GRAMA”). The City denied the request finding that the requested records were either protected “drafts” pursuant to Utah Code § 63G-2-305(22), or were not considered records because they were “temporary drafts” pursuant to Utah Code § 63G-2-103(22)(b)(ii).
Ms. Baptista filed an appeal with Scott Darrington, Chief Administrative Officer of the City. In a letter dated January 11, 2017, Mr. Darrington affirmed the City’s denial of Ms. Baptista’s request for copies of drafts/notes of City Council Meeting Minutes taken by the City Recorder pursuant to Utah Code § 63G-2-103(22)(b)(ii). Mr. Darrington stated that pursuant to Utah’s Open and Public Meetings Act (“OPMA”), the City is required to produce pending minutes within 30 days of the public meeting. See, Utah Code § 52-4-203(4)(f)(i)(A). Mr. Darrington wrote that “the City has produced your requests from the pending minutes within this time frame and in many instances have gotten the minutes to you before the required time period.” Mr. Darrington further stated that the “audio and video recordings of the meeting…are available during the time period that the minutes are being transcribed and proofread.”
On January 13, 2017, Ms. Baptista filed an appeal with the State Records Committee (“Committee”). On February 9, 2017, a hearing was before the Committee where the parties were allowed to present their legal arguments. After considering all written materials and the arguments by the parties, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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 subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2).
2. Unless otherwise classified as a public record, drafts are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(22).
3. Under GRAMA, a “record” does not mean a temporary draft or similar material prepared for the originator’s personal use or prepared by the originator for the personal use of an individual for whom the originator is working. Utah Code § 63G-2-103(22)(b)(ii).
4. The City stated that the City Recorder typically makes handwritten notes during a city council meeting for her own personal use in preparing the draft minutes. The City also uses a transcriber to assist in the preparation of the draft minutes. The handwritten notes are then used to prepare the draft minutes, and once the handwritten notes are no longer needed, they are destroyed. Therefore, many of the handwritten notes from the City Recorder for 2016 no longer exist.
5. After having reviewed the arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the City properly classified the records as protected records pursuant to Utah Code § 63G-2-305(22) or as non-records pursuant to Utah Code § 63G-2-103(22)(b)(ii). Any records still in the possession of the City are either drafts or temporary drafts, and are not public records subject to disclosure according to GRAMA.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jennifer Baptista, is DENIED.
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 its 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 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 21st day of February 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LANCE ROLPH, Petitioner, v.
UTAH DEPARTMENT OF HUMAN SERVICES, OFFICE OF RECOVERY SERVICES. Respondent.
DECISION AND ORDER
Case No. 17-25
By this appeal, Petitioner, Lance Rolph, seeks access to records allegedly held by Respondent, the Utah Department of Human Services, Office of Recovery Services.
FACTS
On February 27, 2017, Mr. Rolph filed a request for records from the Utah Department of Human Services, Office of Recovery Services (“ORS”), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Rolph requested copies of any records used by ORS against him in prior court proceedings. In a letter dated March 13, 2017, Kari Smith with ORS provided copies of records responsive to Mr. Rolph’s records request. Ms. Smith stated in the letter that some records could not be provided to Mr. Rolph because ORS did not have some records responsive to his request and/or the records were held by Utah District Courts or by the Utah Attorney General’s Office.
On April 12, 2017, Mr. Rolph filed an appeal with Liesa Stockdale, Chief Administrative Officer for ORS. Mr. Rolph argued that his case was still open “and the records within this case file should be readily available.” In a letter dated April 20, 2017, Ms. Stockdale affirmed the decision of Ms. Smith, finding that “ORS does not maintain the debt computation or evidence” related to Mr. Rolph’s case. Ms. Stockdale also referred Mr. Rolph to the Utah Attorney General’s Office to obtain some of his requested records.
On April 25, 2017, Mr. Rolph filed an appeal with the State Records Committee (“Committee”). Written notice of the time and place of the hearing was given to all parties. A hearing was held before the Committee on July 13, 2017, where the parties were allowed to present their legal arguments. See, Utah Code § 63G-2-403(8). When the case was initially called, Mr. Rolph was not present and his appeal hearing was moved to the end of the Committee’s agenda. After not having received any communication from Mr. Rolph regarding his absence from the hearing, the Committee proceeded with the hearing. After having reviewed the arguments submitted by the parties and having heard oral argument and testimony from legal counsel for ORS, the Committee now issues the following Decision and Order:
STATEMENT OF REASONS FOR DECISION
1. In response to a request for a record under GRAMA, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
2. Counsel for ORS stated during the hearing that ORS had provided all responsive records to Mr. Rolph and it maintained no further responsive records. In its written argument provided to the Committee, ORS counsel stated:
[ORS] has strictly complied with GRAMA in its response to Petitioner. If anything, [ORS] has been incredibly liberal in its supplemental responses to Petitioner to get him the records it maintains. As to records it does not maintain, [ORS] has complied with GRAMA by directing Petitioner to the governmental entities that maintain these records. [ORS] cannot provide something it does not have, and has explained why it does not maintain these records under the circumstances of [Mr. Rolph’s] case.
3. After having reviewed the written arguments of the parties, and hearing testimony and arguments at the hearing, the Committee finds that ORS does not have further records responsive to Mr. Rolph’s request for records. Accordingly, ORS cannot be ordered to release records it does not possess.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Lance Rolph, is hereby DENIED.
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 its 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 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 25th day of July 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
HOLLY RICHARDSON, Chairperson pro tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JAMES DURAN, Petitioner, v.
UTAH DEPARTMENT OF HUMAN SERVICES. Respondent.
DECISION AND ORDER
Case No. 16-40
By this appeal, Petitioner, James Duran, seeks access to records allegedly held by Respondent, the Utah Department of Human Services.
FACTS
This matter was scheduled for a hearing on October 13, 2016, before the State Records Committee (“Committee”). The morning of the hearing, the executive secretary for the Committee was informed that because of an unexpected circumstance, assigned legal counsel from the Utah Attorney General’s Office for the Utah Department of Human Services (“DHS”) would be unable to attend the hearing and argue on behalf of DHS. Another Assistant Attorney General, who was not prepared to argue on behalf of DHS, attended the hearing on behalf of DHS and requested a continuance of the hearing in order to ensure that DHS’s legal interests were properly represented before the Committee.
STATEMENT OF REASONS FOR DECISION
1. Hearing procedures for the Committee do not provide a mechanism for a governmental entity to request a postponement of an appeal before the Committee. Utah Admin. Code R. 35-1-2(13)(c) states that the “Committee will ordinarily deny a governmental entity’s request to postpone the hearing, unless the governmental entity has obtained the petitioner’s prior consent to reschedule the hearing date.”
2. However, when considering the circumstances surrounding this request for a continuance by DHS, the Committee finds that DHS would have been unfairly prejudiced if the hearing was not continued. Utah Code § 63G-2-403(8) states that at the hearing, the Committee “shall allow the parties to testify, present evidence, and comment on the issues.” Although Utah Admin. Code R. 35-1-2(13)(c) states that the Committee will ordinarily deny a governmental entity’s request to postpone a hearing unless consent has been obtained from the Petitioner, the rule does not preclude the Committee from granting a request for a postponement when circumstances justify the request. Accordingly, DHS’s request for a continuance is granted.
ORDER
The hearing is CONTINUED to the next available hearing date.
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 its rights on appeal, a party may wish to seek advice from an attorney.
Entered this 24th day of October 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 17-06
By this appeal, Petitioner, Paul Amann, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
Paul Amann is a former Assistant Attorney General with the Utah Attorney General’s Office (“AG’s Office”). Mr. Amann alleges that because he was a “whistleblower,” he was “driven” from his position within the AG’s Office. On October 2, 2016, Mr. Amann filed the following 17 records requests from the AG’s Office pursuant to the Utah Government Records Access and Management Act (“GRAMA”):
In a letter dated October 18, 2016, Assistant Attorney General Daniel Widdison denied Mr. Amann’s records requests. Mr. Widdison stated that according to Section 2.18(E)(5) of the AG’s Office Policy Manual, an “employee is not entitled to engage in discovery of documents within the possession or control of the [AG’s] Office that are private, protected, or controlled under [GRAMA].” Mr. Widdison further stated that the records had been classified as private or protected records, and the AG’s Office was not obligated to create records in response to a records request made pursuant to GRAMA. A copy of the AG’s Office Policy Manual (Request 1Q) was provided to Mr. Amann at that time.
Mr. Amann filed an appeal of the records request denial with Parker Douglas, General Counsel for the AG’s Office. In a letter dated November 23, 2016, Mr. Douglas affirmed the decision of Mr. Widdison denying Mr. Amann’s records requests. On December 23, 2016, Mr. Amann filed an appeal with the State Records Committee (“Committee”). On February 9, 2017, the Committee held a hearing regarding the appeal. The Committee, having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the disputed records in camera, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Utah 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Records the disclosure of which would jeopardize the security of governmental properly, governmental programs, or governmental recordkeeping systems from damage, theft, or other appropriation or use contrary to law or public policy, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(12).
3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
4. In response to a request for a record pursuant to GRAMA, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
5. During arguments before the Committee, Assistant Attorney General Daniel Widdison, counsel for the AG’s Office, agreed to provide Mr. Amann with copies of documents from his requests numbered 1E, 1L, and 1O without an order from the Committee. Mr. Widdison stated that requests numbered 1D, 1H, 1I, and 1K, can be provided, but only if restriction to use of the records to Mr. Amann is given by the Committee pursuant to Utah Code § 63G-2-403(11)(c) (The committee “where appropriate, limit the requester’s or interested party’s use and further disclosure of the record in order to protect…privacy interests in the case of a private or controlled record” and “privacy interests or the public interest in the case of other protected records.”). Mr. Widdison stated that there are no records responsive to Mr. Amann’s requests 1A, 1B, 1D, 1J, 1M and 1P.
6. After having reviewed all arguments and evidence, and having reviewed all of the documents provided by the AG’s Office for review in camera, the Committee makes the following findings:
(1) The AG’s Office is not required to provide records in response to requests 1A, 1B, 1D, 1J, 1M, and 1P because the Committee is persuaded that there are no records responsive to the request;
(2) The documents in the folder responsive to request 1C Bates Stamped #3 through #19 are public records subject to disclosure because they are public court records;
(3) The document in the folder responsive to request 1C Bates Stamped #1 is a public record, but all other records in folder 1C except as noted above in (2) are non-public records;
(4) The records in response to requests 1F, 1G, and 1H are records properly classified as protected records pursuant to Utah Code § 63G-2-305(12);
(5) After weighing the various interests and public policies pertinent to the classification, pursuant to Utah Code § 63G-2-403(11)(c) the records in response to requests 1F, 1G, and 1H shall be disclosed to Mr. Amann for his own personal use with the restriction that he may not disclose the information within the records;
(6) The records in response to request 1I were properly classified as private records pursuant to Utah Code § 63G-2-302(2)(d), but pursuant to Utah Code § 63G-2-403(11)(c) shall be disclosed to Mr. Amann with the same restrictions as stated above;
(7) The documents in the folder responsive to request 1K and Bates Stamped #1 through #137 are appropriately classified as protected records pursuant to Utah Code § 63G-2-305(12), documents Bates Stamped #154 and #155 are appropriately classified as private pursuant to Utah Code § 63G-2-302(2)(d), and the remaining documents in folder 1K should be considered public and subject to disclosure; and
(8) The documents in the folder responsive to request 1K and Bates Stamped #1 through #137, #154, and #155, are properly classified as non-public records, but pursuant to Utah Code § 63G-2-403(11)(c) shall be disclosed to Mr. Amann with the same restrictions as stated above;
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul Amann, 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 its 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 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 21st day of February 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 17-23
By this appeal, Petitioner, Patrick Sullivan, seeks access to records held by Respondent, the Utah Department of Corrections (“Corrections”).
FACTS
On a form dated April 9, 2017, and received by Corrections on April 21, 2017, Mr. Sullivan requested records from Corrections pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested “[d]etailed receipts, invoices, purchase orders, work orders for new security cameras” installed at the Utah State Prison located in Draper, Utah. In a letter dated April 21, 2017, a records officer for Corrections informed Mr. Sullivan that his request was being rejected because he still had outstanding charges from previous records requests. Mr. Sullivan filed an appeal with Corrections’ Deputy Director, Mike Haddon, who in a letter dated May 11, 2017, denied the records request finding that “the records you seek…are exempt from GRAMA” pursuant to Utah Code § 63G-2-106.
Mr. Sullivan filed an appeal with the State Records Committee (“Committee”) regarding Corrections’ denial of his records request May 24, 2017. After considering all arguments by the parties and reviewing the written materials, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The records of a governmental entity or political subdivision regarding security measures designed for the protection of persons or property, public or private, are not subject to GRAMA. Utah Code § 63G-2-106.
2. After considering the arguments of the parties, the Committee finds that the requested records are records regarding security measures designed for the protection of persons or property. Therefore pursuant to Utah Code § 63G-2-106, the Committee also finds that the requested records are not subject to GRAMA. Accordingly, the Committee does not have jurisdiction to order Corrections to the release of the records to Mr. Sullivan.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is DENIED.
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.
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 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 25th day of July 2017.
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chairperson pro tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
HARSHAD P. DESAI, Petitioner, v.
GARFIELD COUNTY. Respondent.
DECISION AND ORDER
Case No. 17-32
By this appeal, Petitioner, the Harshad P. Desai, seeks fee waivers for copies of records held by Respondent, Garfield County.
FACTS
In the month of May 2017, Mr. Desai made five records requests to Garfield County ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Desai also requested that the Respondent provide the records with “[z]ero charges.” In a letter dated May 22, 2017, Kim Brinkerhoff, custodian of the records for Respondent, stated that the cost for providing the records to Mr. Desai would be $15.00.
On or about July 12, 2017, Mr. Desai filed an appeal with the State Records Committee (“Committee”), claiming that the Respondent should have granted his request for a fee waiver. The Committee, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony on September 14, 2017, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. Mr. Desai claimed that the Respondent “is engaged in deterrent approach demanding fees.” In response, the Respondent provided an affidavit from Ms. Brinkerhoff, who stated that she and other Garfield County employees “spent a minimum of 2 and half hours to respond to the requests, specifically, to review, search for, retrieve, and summarize the information for Mr. Desai.” Ms. Brinkerhoff also stated that Respondent charged Mr. Desai for only one hour of work, and that the rate of $15.00 per hour was less than the hourly rate of the lowest paid employee with the necessary skill and training to respond to the request.
5. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Mr. Desai failed to prove that he is entitled to fee waivers for appeal requests 2017-65, 67, 68, 69, and 70 pursuant to Utah Code § 63G-2-203(4).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is DENIED.
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 its 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 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 25th day of September 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EARL Al KALASHNIKOV, Petitioner, v.
SALT LAKE CITY CORPORATION. Respondent.
DECISION AND ORDER
Case No. 17-03
By this appeal, Petitioner, Earl Al Kalashnikov, seeks access to records held by Respondent, the Salt Lake City Corporation (“City”).
FACTS
On February 27, 2016, a shooting incident occurred involving Abdi Mohamed and police officers with the Salt Lake City Police Department (“Department”). On March 11, 2016, Mr. Kalashnikov filed a records request pursuant to the Government Records Access and Management Act (“GRAMA”) with the Department for police records related to the shooting incident.
In a letter dated August 23, 2016, the Department denied Mr. Kalashnikov’s records request. Mr. Kalashnikov filed an appeal and in a letter dated October 5, 2016, the Department’s GRAMA Coordinator denied the appeal. An appeal to the Chief Administrative Officer for the City, similarly denied Mr. Kalashnikov’s appeal in a letter dated November 14, 2016, finding that access to the body camera recordings is protected pursuant to Utah Code § 63G-2-305(10)(b) & (c).
Mr. Kalashnikov filed an appeal with the Utah State Records Committee (“Committee”), and on January12, 2017, a hearing was before the Committee. However, prior to the hearing, the same records that were requested by Mr. Kalashnikov were found to be public records in Am. Civil Liberties Union v. Salt Lake City Police Dept., State Records Committee Case No. 17-02 (January 24, 2017). Taking into account the similarity of the two records requests, involving the same governmental entity, and having considered the written arguments of the parties, the Committee 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 § 63G-2-201(2). Records that are private, controlled, or protected under Utah Code §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Records created or maintained for criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the record: (1) Reasonably could be expected to interfere with enforcement proceedings; or (2) Would create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(b) & (c).
3. The Committee, after having reviewed the two body camera videos in camera, determined that records should be classified as public records for the reasons provided in Am. Civil Liberties Union v. Salt Lake City Police Dept., State Records Committee Case No. 17-02 (January 24, 2017).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mr. Kalashnikov, is GRANTED.
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 its 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 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 24th day of January 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROBERT BAKER, Petitioner, v.
BOARD OF PARDONS AND PAROLE, Respondent.
DECISION AND ORDER
Case No. 17-14
By this appeal, Petitioner Robert Baker seeks access to records held by Respondent, the Board of Pardons and Parole (“Board”).
FACTS
In a letter dated September 15, 2016, Mr. Baker made a request to the Board for records pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Baker requested “Copies of 200+ case files supplied by PEW Research Foundation” and “Copies of Correlation Analysis” for the purpose of “Civil Litigation”. In a letter dated September 29, 2016, Mr. Greg Johnson, Director of Administrative Services, acting on behalf of the Board, required a prepayment of $510 pursuant to Utah Code § 63G-2-203(8) in order to provide the public portions of 204 files, and indicated that processing the voluminous request would take longer than 10 days.
On December 19, 2016, Mr. Baker amended his GRAMA request clarifying what information he is requesting. He also suggested, the fee could be reduced by providing the files on a compact disc as per Utah Code § 63G-2-201(11), and asserted that the fee should be waived because he is impecunious and his legal rights are directly implicated by the requested information under Utah Code § 63G-2-203(4)(c). Mr. Johnson, in a letter dated December 22, 2016, denied the amended request, noting that additional information would be necessary to determine that Mr. Baker’s legal rights are implicated and that he is impecunious. Mr. Baker appealed this denial to Ms. Angela Micklos on January 7, 2017, claiming he needs the requested information for his federal civil rights case and his inmate account confirms that he is indigent. Ms. Micklos affirmed the fee waiver denial on January 30, 2017, and indicated that due to the voluminous quantity of files the Board will treat them as separately requests and will respond to each sequentially in accordance with Utah Code §§ 63G-2-204(5)(c) and -204(6)(c)(iv). On February 7, 2017, the Board sent a letter to Mr. Baker informing him that the Department of Correction’s policy prohibits him from receiving the public records from the first file processed by the Board because of prison security concerns.
Mr. Baker filed an appeal with the State Records Committee (“Committee”). On April 13, 2017, the Committee held a hearing where the parties presented their arguments. After considering the arguments and reviewing all written materials, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Utah Code Subsection 63G-2-203(1) provides that a governmental entity “may charge a reasonable fee to cover the governmental entity’s cost of providing a record.” Actual costs may include the cost of staff time for “compiling, formatting, manipulating, packaging, summarizing or tailoring the record” into an organization to meet the person’s request, and the cost of staff time for search, retrieval, and other direct administrative costs for complying with the request. See, Utah Code § 63G-2-203(2)(a)(i) & (ii).
2. The governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that: (2) the requester's legal rights are directly implicated by the information in the record, and the requester is impecunious.” Utah Code § 63G-2-203(4).
3. GRAMA specifies “A person who believes that there has been an unreasonable denial of a fee waiver under Subsection (4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Section 63G-2-205.” Utah Code § 63G-2-203(6)(a).
4. Concerning the Board’s claim of extraordinary circumstances, GRAMA allows a governmental entity to delay approval or denial for an additional period of time as specified in Subsection (6) if the governmental entity determines that the request is voluminous quantity of records or a record series containing a substantial number of records…” Utah Code § 63G-2-204(5).
5. GRAMA further specifies that a governmental entity may treat a request for multiple records as a separate record requests, and respond sequentially to each request;” Utah Code § 63G-2-401(1)(b).
6. Counsel for the Board indicated they will provide the Public portions of records to Mr. baker at a rate of one file per week, and bill him for each response. The board stipulated that Mr. Baker is indigent, but argued that his legal rights are not directly implicated by the information in the record and he is therefore not entitled to a fee waiver.
7. The Committee determined that a governmental entity has discretion to grant or deny a fee waiver. The Committee noted Salt Lake City Corporation v. Jordan River Restoration Network, 3rd Judicial Dist. Case No. 100910873 (Utah Dec. 31, 2015), where the Court found that it was reasonable to deny a fee waiver request and delay disclosure “given the voluminous nature of the request and the effort necessary to compile the requested documents.”
8. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the Petitioner’s legal rights are not directly implicated by the information. The Committee also determined that the Board’s method of response is also reasonable.
9. The Committee notes they have no authority over whether the Department of Corrections allows a prisoner to possess records, and the issue of the classification and redaction of the requested records is not before them.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner Robert Baker is DENIED.
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 its 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 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 24th day of April 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL G. AMANN, Petitioner, v.
DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.
DECISION AND ORDER
Case No. 17-27
By this appeal, Petitioner, Paul G. Amann, seeks access to records held by Respondent, Utah Department of Human Resource Management (“DHRM”). This matter originally came before the State Records Committee (“Committee”) for a hearing held on June 8, 2017. The hearing was continued to a later date to allow the Committee to properly review the disputed records. See, Amann v. Utah Dept. of Human Resource Mgmt., State Records Committee Case No. 17-21 (June 19, 2017). After reviewing the records in camera, the Committee held a hearing on August 10, 2017, and 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. Records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, are private if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a).
3. GRAMA also specifies that records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are protected if properly classified by a governmental entity if such records could reasonably be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source; or reasonably could be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts. Utah Code §§ 63G-2-305(10)(d) & -305(10)(e).
4. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).
5. Drafts unless they are otherwise classified as public, are protected records pursuant to Utah Code § 63G-2-305(22).
6. Pursuant to Utah Code § 63G-2-305(25), records, other than personal evaluations, that contain a personal recommendation concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal privacy, or disclosure is not in the public interest, are considered protected if properly classified by a governmental entity.
7. The Committee after having reviewed the records submitted to them from DHRM, for the purpose of discussion during their deliberations, divided the records into two broad categories, each category noting a specific Bates stamped number: (1) physical paper documents and (2) electronic documents. Based upon the above cited statutes, the Committee finds that the proper classification of the records should be as follows:
Physical Paper Documents
|
Bates Stamp Number |
Classification |
Supporting Statute |
|
3e, 3g, 3h pp. 1-4, 3m pg.1, 3o, 3p, 3q, 3s, 3t, 3u, 3w, 3y, 3aa, 3cc, 3dd, 3ee |
Public |
Utah Code § 63G-2-201(2) |
|
3a, 3b, 3d, 3f, 3j, 3k, 3i, 3n, 3r, 3v, 3x, 3z, 3bb |
Protected |
Utah Code § 63G-2-305(10)(d) and (18). |
|
3c, 3h, 3l, 3m pp. 2-4 |
Private |
Utah Code § 63G-2-302(2)(a) |
Electronic Documents
|
Bates Stamp Number |
Classification |
Supporting Statute |
|
9, 11, 12, 13, 16c, 16d, 18-23, 25, 26, and 36-45 |
Protected |
Utah Code § 63G-2-305(10)(d) |
|
5, 6, 7, 16a, 17, 24, 29-32, 33, and 34 |
Protected |
Utah Code § 63G-2-305(10)(d) and/or (e). |
|
16b, 28 |
Public |
Utah Code § 63G-2-201(2) |
|
8, 10, 27, and 35 |
Private, but record shall be released to Mr. Amann if he is the subject of the record. Utah Code § 63G-2- 202(1)(a) |
Utah Code § 63G-2-202(1)(a) and Utah Code § 63G-302(2)(a) and (d) |
|
14 |
Protected |
Utah Code § 63G-2-305(22). |
|
1 |
Private and Protected |
Utah Code § 63G-2-305(10) and (25), and private under Utah Code § 63G-2-302(2)(a). |
|
2, 3, and 4 |
Protected with the exception of tabs 3 and 8 which contain both public and protected information, and tab 7 that contains public information. For tab 3, columns I and J should be redacted, and tab 8, columns F and G should be redacted. |
Utah Code § 63G-2-305(10)(d) and (e), and public under Utah Code § 63G-2-201(2). |
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul G. Amann, is 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 its 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 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 21st day of August 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DAVID LARSEN, Petitioner, v.
HEBER CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 17-30
By this appeal, Petitioner, David Larsen, seeks access to records allegedly held by Respondents, Heber City Police Department.
FACTS
On or about April 6, 2017, Mr. Larsen made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Larsen requested all Drug Recognition Expert (DRE) road and field training documents and policies, including any policy changes and who made those changes, for the Heber City Police Department (“Respondent”), from 2015 to present.
On or about April 11, 2017, the Respondent sent Mr. Larsen a letter indicating that all the requested records were ready for Mr. Larsen as previously noted in the letter dated October 1, 2015, for his first request for the same records. Respondent also noted that Mr. Larsen had been provided access to all documentation regarding policy changes.
Mr. Larsen appealed the letter and in a subsequent letter dated April 17, 2017, the Respondent reminded Mr. Larsen that he was previously presented with the requested records, paid for what records were desired and took said records, leaving the remaining unpaid records with the Police Department. Respondent noted that the records were still available with the Police Department. Respondent also noted that the request for the Policies and Procedures was approved and addressed how to obtain those records in an email dated December 28, 2016.
Mr. Larsen filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 14, 2017, 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 § 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. Every 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). In response to a records request, a governmental entity is not required to provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(iii).
3. In the present case, the Respondent argued that the request was approved and that all requested documents had been provided to Mr. Larsen, but that Mr. Larsen was requesting the documents to be provided in a different format. The Committee was persuaded that the Respondent had fully complied with the request by providing the records in the format in which they were maintained and was not required to provide the records in a different format.
4. After hearing testimony and reviewing the parties' arguments, the Committee finds that Mr. Larsen had been provided all the records responsive to his GRAMA request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, David Larsen, is DENIED.
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 its 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 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 25th day of September 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ALEX STUCKEY on behalf of SALT LAKE TRIBUNE, Petitioner, v.
UTAH STATE UNIVERSITY. Respondent.
DECISION AND ORDER
Case No. 17-01
By this appeal, Petitioner, Alex Stuckey, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah State University (“USU”).
FACTS
On or about September 9, 2016, Ms. Stuckey filed a request for records from USU pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Stuckey requested any written findings or reports from an inquiry made by USU President Stan Albrecht regarding recent allegations of sexual assaults in the campus community. Ms. Stuckey specifically requested any recommendations from the inquiry and any identified areas for improvement. Ms. Stuckey’s records request was initially denied by Eric Warren, Director of USU Media Relations on September 16, 2016. Ms. Stuckey filed an appeal with Dave Cowley, USU’s Chief Administrative Officer, who denied her appeal on October 20, 2016.
Ms. Stuckey filed an appeal with the Committee, and on January 12, 2017, a hearing was before the State Records Committee (“Committee”), where the parties were allowed to present their legal arguments. A motion was made by a Committee member to review the disputed records in camera. After a determination that the volume of records would make it difficult for the Committee to review the records during the hearing, the Committee voted unanimously to continue the hearing to a later date. Neither party objected to the continuance. Accordingly, IT IS ORDERED THAT:
ORDER
The hearing is CONTINUED to a later date to allow the Committee to properly review the disputed records. Pursuant to Utah Code § 63G-2-403(9) and Utah Admin. Code R. 35-1-2(6), Respondent is ordered to provide the records to the Executive Secretary for the Committee, who will secure the records at the State Archives Building to allow an in camera review of the records by the Committee members.
Entered this 24th day of January 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANNA BURLESON on behalf of STANDARD-EXAMINER, Petitioner, v.
BOX ELDER SCHOOL DISTRICT. Respondent.
DECISION AND ORDER
Case No. 17-26
By this appeal, Petitioner, Anna Burleson, reporter for the Standard-Examiner, seeks access to records allegedly held by Respondent, the Box Elder School District (“District”).
FACTS
On or about May 1, 2017, Ms. Burleson filed a request for records from the District pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Burleson requested “all applications and accompanying documents for the position of [District] superintendent in 2017.” Ms. Burlseon clarified that accompanying documents “included but are not limited to letters of reference, qualifications, resumes, cover letters and letters of intent.”
In a letter dated May 5, 2017, Rodney L. Cook, Business Administrator for the District, stated that Ms. Burleson’s request was being denied pursuant to Utah Code §§ 63G-2-302(1)(g), -302(2)(a), and -302(2)(d). Ms. Burleson filed an appeal to Dr. Ron Tolman, Superintendent of the District. In a letter dated May 9, 2017, Dr. Tolman affirmed in part the decision of Mr. Cook. Dr. Tolman wrote:
[I]n the spirit of the public’s right to know, the Box Elder County School Board is releasing the names of the Superintendent finalists and their resumes on Tuesday afternoon, with personal information and personal reference information redacted. In our minds, this creates a fair balance between encouraging all interested applicants and protecting their privacy in their current employment and the community’s right to know the names and backgrounds of the most viable candidates for Superintendent.
However, Dr. Tolman did not release all the requested records because often “applicants apply confidentially without the knowledge of their current employers” and “those who provide letters of recommendation for applicants have a right to do so confidentially.”
On May 10, 2017, Ms. Burleson filed an appeal with the State Records Committee (“Committee”). A hearing was held before the Committee on July 13, 2017, where the parties were allowed to present their legal arguments. After considering the arguments and reviewing all written materials, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Utah 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o) or private under -302(1)(b), are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a).
3. Some of the exceptions to the general rule that employment records are private records pursuant to Utah Code § 63G-2-302(2)(a) are: (1) Records disclosing the name, gender, gross compensation, job title, job description, business address, business email address, business telephone number, number of hours worked per pay period, dates of employment, and relevant education, previous employment, and similar job qualifications of a current or former employee or officer of the governmental entity; and (2) Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee if the disciplinary action has been completed and all time periods for administrative appeal have expired and the charges on which the disciplinary action was based were sustained. See, Utah Code §§ 63G-2-301(2)(b) & -301(3)(o).
4. A review of Ms. Burleson’s request for records shows that she is requesting records that if properly classified by the governmental entity, are considered private records pursuant to Utah Code § 63G-2-302(2)(a). Additionally, the exceptions to the general rule concerning employment records of governmental entities listed in Utah Code § 63G-2-302(2)(a) only apply to current and former employees of a governmental entity, and do not apply to applicants for employment with a governmental entity.4
5. However, the Committee has previously held that “the public has the right to know the selection process of the Superintendent of the District” and that applications for a district superintendent position “are public to the extent that they contain the name and qualifications of the applicants.” Taylor v. Wasatch Cty. School Dist., State Records Comm. Case. No. 16-43 (Oct. 24, 2016). Accordingly, any applications containing the names and qualifications of the applicants for the Superintendent of the District position that have not already been released by the District, should be released with proper redactions of private information. Id. The remaining application records were properly classified as private records and shall remain nonpublic pursuant to Utah Code § 63G-2-302(2)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Anna Burleson, 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 its 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 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 25th day of July 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 18-01
By this appeal, Petitioner, Steven Onysko, seeks access to records held by Respondent, Utah Attorney General’s Office.
FACTS
On or about August 8, 2017, Mr. Onysko resubmitted a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko initially requested records related to the Respondent’s handling of a whistle-blower lawsuit styled USA ex. rel. Mark Christopher Tracy v. Emigration Improvement District et al., No. 2:14-cv-00701 (D. Utah). Mr. Onysko added an additional request for “Multi-Agency State Office Building (MASOB) visitor log records that show that any days, including June 15, 2016, on which former DDW managers Michael Georgeson and Kenneth Wilde signed into MASOB for purpose of meeting with OAG agents, including, but not limited to, OAG's Melissa Hubbell, in the matter of USA ex rel Mark Christopher Tracy.”
On August 15, 2017, Respondent informed Mr. Onysko that despite a reasonable search, no records responsive to certain parts of his request were found, and that all records identified as responsive to other parts of his request were protected either as attorney client communications under Utah Code § 63G-2-305(17), or as attorney work product under Utah Code § 63G-2-305(18) and therefore, could not be provided. On September 5, 2017, Mr. Onysko appealed to the Chief Administrative Officer, and on September 19, 2017, Solicitor General Tyler Green, acting as Chief Administrative Officer affirmed the initial determination.
Mr. Onysko filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and reviewing the records in camera, on January 11, 2018, now 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. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code §§ 63G-2-305(17). The attorney client privilege protects information given by a client to an attorney that is necessary to obtain informed legal advice, which might not have been made absent the privilege. S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶ 18, 200 P.3d 643, 654. To rely upon the attorney client privilege, a party must establish: (1) An attorney client relationship; (2) The transfer of confidential information; and (3) The purpose of the transfer was to obtain legal advice. Id.
3. After having reviewed the written and oral arguments of the parties, and having reviewed the records in camera, the Committee finds that Respondent has shown that an attorney client relationship existed, there was a transfer of confidential information, and the purpose of the transfer was to obtain legal advice. Accordingly, Respondent properly classified the records as protected records pursuant to Utah Code § 63G-2-305(17).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, is DENIED.
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.
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 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 January 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
MORGAN COUNTY ATTORNEY’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 18-27
By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, the Morgan County Attorney’s Office.
FACTS
On June 12, 2018, a hearing was held before the Committee. Petitioner provided the Respondent and the Committee with some additional information and requested a continuance. The parties agreed that a continuance of the hearing would allow the parties to have an opportunity to review the information provided.
ORDER
THEREFORE, IT IS ORDERED THAT the hearing is CONTINUED to the next scheduled Committee hearing.
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.
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).
Entered this 23rd day of July 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RICHARD NORMAN STEIN, Petitioner, v.
OGDEN CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 17-29
By this appeal, Petitioner, Richard Norman Stein, seeks access to records allegedly held by Respondents, Ogden City Police Department.
FACTS
On or about May 9, 2017, Mr. Stein made a records requests pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Stein requested all records pertaining to a case with the Ogden City Police Department (“Respondent”). On May 23, 2017, the Respondent denied, in part, Mr. Stein’s request, and provided redacted copies of the remaining requested information that was available.
On July 14, 2017, Mr. Stein filed an appeal with the State Records Committee (“Committee”). The Respondent claims that the Committee does not have jurisdiction to hear the matter because Mr. Stein has a pending appeal before the Ogden Records Review Board, pursuant to Utah Code § 63G-2-701(5)(c). On September 14, 2017, the Committee held a public hearing to consider the merits of Respondent’s arguments regarding jurisdiction and Mr. Stein’s Appeal. After hearing oral argument and testimony from all the parties, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records and Access Management Act (GRAMA) grants political subdivisions the option to “establish an appeals board to decide an appeal of a decision of the chief administrative officer affirming an access denial.” GRAMA further specifies that "if a political subdivision establishes an appeals board, any appeal of a decision of a chief administrative officer shall be made to the appeals board.” Utah Code § 63G-2-701(5)(c)(ii) and (iii).
2. If unsatisfied with the local appeals board decision, either party, including the requester, may appeal the appeals board decision to the state records committee as provided in Section 63G-2-403. Utah Code Section § 63G-2-701(6)(a)(i).
3. In the present case, Respondent requested that the appeal be dismissed because the Ogden Records Review Board had not yet had the opportunity to review Mr. Stein’s appeal.
4. After hearing testimony and reviewing the parties' arguments regarding Respondent’s motion to dismiss, the Committee finds that Mr. Stein’s appeal should be dismissed because the appeal should first be heard by the Ogden Records Review Board prior to being heard by the Committee pursuant to Utah Code § 63G-2-701(5).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Richard Norman Stein, is DISMISSED.
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 its 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 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 25th day of September 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROBERT GEHRKE on behalf of THE SALT LAKE TRIBUNE, Petitioner, v.
KANE COUNTY. Respondent.
DECISION AND ORDER
Case No. 17-44
By this appeal, Petitioner, Robert Gehrke, on behalf of the Salt Lake Tribune, seeks access to records allegedly held by Respondents, Kane County.
FACTS
On or about August 25, 2017, Mr. Gehrke made a records requests pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gehrke requested “any maps prepared by [Kane County] as well as any correspondence regarding the Grand Staircase-Escalante National Monument sent or received since Jan. 1, 2017, between [government officials].”
On or about September 12, 2017, Respondent provided records to Mr. Gehrke, but classified a portion of the records as protected pursuant to Utah Code §§ 63G-2-305(22) and -305(57). On September 25, 2017, Mr. Gehrke appealed the partial denial to Rhonda Gant, Chief Administrative Officer of Kane County. In a letter dated October 11, 2017, Ms. Gant denied Petitioner’s appeal, stating that the records were appropriately classified as protected records.
Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 9, 2017, 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 § 63G-2-201(2). Records that are private, controlled, or protected under §§ 63G-2-302, -303, -304, or -305, are not public records. Utah Code §63G-2-201(3)(a).
2. Records that are prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).
3. Drafts, unless otherwise classified as public, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(22).
4. Records that reveal the location of historic, prehistoric, paleontological, or biological resources that if known would jeopardize the security of those resources or of valuable historic, scientific, educational, or cultural information, are also protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(26).
5. Respondent argued that the maps that have not been disclosed to Petitioner, should be considered “drafts” under GRAMA because the boundaries marked on the maps have not been finalized. Respondent claims that release of the maps could misinform the public concerning decisions that have not yet been made regarding the Grand Staircase-Escalante National Monument.
6. The Committee reviewed 20 documents in camera, 18 of which were various maps of the Grand Staircase monument (two of the documents were not maps and were not released), and made the following determinations: (1) Map 002 was appropriately classified as a protected record pursuant to Utah Code § 63G-2-305(18); (2) Maps 003, 008, 009, 010, 015, 017, 018, 019, and 020 were appropriately classified as protected records pursuant to Utah Code § 63G-2-305(22); and (3) Maps 004, 005, 006, 007, 011, 012, 013, and 014 were properly classified as protected records pursuant to Utah Code § 63G-2-305(26).
7. The Committee may, upon consideration and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private, controlled, or protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access. Utah Code § 63G-2-403(11)(b). The Committee shall review the disputed records in camera if the Committee is weighing the various interests allowing disclosure of properly classified records pursuant to Utah Code § 63G-2-403(11)(b). Utah Code § 63G-2-403(9)(a)(i)(B).
8. After considering and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, and having reviewed the disputed records in camera, the Committee holds that Maps 003, 010, 015, 016, 017, 018, 019, and 020 should be released because the public interest favoring access to the records is greater than or equal to the interest favoring restriction of access as allowed under Utah Code § 63G-2-403(11)(b).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Robert Gehrke on behalf of the Salt Lake Tribune, is 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 its 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 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 21st day of November 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DIVISION OF PUBLIC UTILITIES. Respondent.
DECISION AND ORDER
Case No. 18-11
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, the Utah Division of Public Utilities.
FACTS
On or about November 29, 2017 Mr. Sullivan made a records request to the Utah Division of Public Utilities ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested a number of documents and communications, as well as a search of the Google Vault for said documents and communications. Mr. Sullivan also requested a waiver of fees.
The Respondent conducted a thorough search of its records and identified all records responsive to Mr. Sullivan’s request. On or about December 14, 2018, Respondent provided Mr. Sullivan with the results of the reasonable search of its records and provided all responsive records not subject to attorney client privilege. Respondent notified Mr. Sullivan that it was denying records that are subject to attorney client privilege and/or prepared in anticipation of litigation or judicial, quasi-judicial, or administrative proceedings and are classified as protected under Utah Code Ann. §63G-2- 305. On December 18, 2017 Mr. Sullivan appealed the denial to the Chief Administrative Officer and on January 16, 2018, the denial was upheld.
Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on March 8, 2018 now 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). “The attorney-client privilege protects information given by a client to an attorney that is necessary to obtain informed legal advice-which might not have been made absent the privilege.” S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶ 33, 200 P.3d 643, 654 (quotation omitted). To rely upon the attorney-client privilege, the governmental entity must establish: (1) An attorney-client relationship; (2) The transfer of confidential information; and (3) The purpose of the transfer was to obtain legal advice. S. Utah Wilderness Alliance (“SUWA”), 2008 UT 88, ¶ 33, 200 P.3d 643, 655.
3. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18). The attorney work product doctrine generally protects documents and tangible things prepared in anticipation of litigation, judicial, quasi-judicial, or administrative proceedings. SUWA at ¶ 23, 200 P.3d at 643, 651. The purpose of the attorney work product protections is to provide attorneys with a zone of privacy permitting effective client advocacy. Schroeder v. Utah Attorney Gen. Office, 205 UT 77, ¶ 59, 358 P.3d 1075, 1090. It does not include documents produced in the ordinary course of business created pursuant to routine procedures or public requirements unrelated to litigation. SUWA, at ¶25, 200 P.3d at 652.
4. Counsel for Respondent argued that a search of all records showed that the only records responsive to Mr. Sullivan’s records request are protected records pursuant to Utah Code §§ 63G-2-305(17) & (18). Counsel further stated that a search for records was not made of Respondent’s “Google Vault” because either: (1) Any records in the Google Vault would have already been found in Respondent’s initial search; or (2) Any records found in the Google Vault search would have been properly classified as protected records pursuant to Utah Code §§ 63G-2-305(17) & (18).
5. After having reviewed the written arguments of the parties and considering all evidence presented at the hearing, the Committee finds that Respondent has provided all public records responsive to Mr. Sullivan’s request, and that any remaining responsive records are properly classified as non-public protected records pursuant to Utah Code §§ 63G-2-305(17) & (18).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is hereby DENIED.
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.
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 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 19th day of March 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ETHAN DODGE on behalf of TRUTH AND TRANSPARENCY FOUNDATION, Petitioner, v.
BRIGHAM YOUNG UNIVERSITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 18-24
By this appeal, Petitioner, Ethan Dodge on behalf of Truth and Transparency Foundation, seeks access to records allegedly held by Respondent, the Brigham Young University Police Department.
FACTS
In April 2018, Mr. Dodge made a records request to the Brigham Young University Police Department ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “all files, videos, audio recordings, or any other kind of documentation related to” allegations against Joseph L. Bishop. In an e-mail dated April 10, 2018 in response to Mr. Dodge’s records request, Respondent provided a redacted copy of an incident report.
Mr. Dodge appealed the response and clarified that he already had several versions of the incident report including one that stated that an interview of Mr. Bishop was conducted on December 5, 2017 and that the recording had been attached to the report. Mr. Dodge stated that he believed the redactions were improper and that he had a right to a copy of the recording.
In an e-mail dated April 13, 2018, Chief Larry Stott replied to Mr. Dodge’s appeal stating that “Brigham Young University and its University Police are not subject to GRAMA.” Chief Stott also stated that “as a matter of internal practice” it released records classified as public records under GRAMA, but “the requested recording [would be] a private record under Utah Code 63G-2-302” because “disclosure of the recording would constitute a clearly unwarranted invasion of personal privacy of individuals involved in the case.”
Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on July 12, 2018, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA states that every person generally 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). GRAMA defines a “public record” means a “record” that is not private, controlled, or protected and that is not exempt from disclosure as provided in Utah Code § 63G-2-201(3)(b). Utah Code § 63G-2-103(21). The “record” needs to be “prepared, owned, received, or retained by a governmental entity or political subdivision” of the State of Utah. Utah Code § 63G-2-103(22)(a)(i). One of GRAMA’s definitions of a “governmental entity” includes “every office, agency, board, bureau, committee, department, advisory board, or commission” of an entity listed in Utah Code § 63G-2-103(11)(a) that is “funded or established by the government to carry out the public’s business.” Utah Code § 63G-2-103(11)(b)(i).
2. Respondent argues that it is not a “governmental entity subject to GRAMA” and therefore, would not be participating in the Committee’s hearing or submitting written statements or records for review by the Committee. Since the issue of whether Respondent is a governmental entity is currently being reviewed by a Utah District Court in Salt Lake Tribune v. Utah State Records Comm., 3rd District Case No. 160904365, the Committee defers addressing this issue at this time and instead, addresses solely the issue of the classification of the requested record.
3. In the denial e-mail dated April 13, 2018, Chief Stott stated that if the record was classified under GRAMA, the requested recording would be considered a private record pursuant to Utah Code § 63G-2-302 “because disclosure of the recording would constitute a clearly unwarranted invasion of personal privacy of individuals involved in the case.” Petitioner argued that because of the public interest in disclosure of the information from the investigation, the records should be released.
4. After having reviewed all written materials submitted to the Committee and arguments made by Petitioner during the Committee’s hearing, the Committee finds that the requested records were improperly classified as private records by Respondent. Release of the recording would not be a “clearly unwarranted invasion of personal privacy” because information within the recording of the interview has already been released to the public. Accordingly, the Committee finds that the requested records are public records and should be disclosed to Petitioner subject to the District Court’s decision in Salt Lake Tribune v. Utah State Records Comm., 3rd District Case No. 160904365 concerning whether Respondent is a governmental entity subject to GRAMA.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ethan Dodge on behalf of Truth and Transparency Foundation is GRANTED.
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.
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).
Entered this 23rd day of July 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 17-33
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondents, Utah Department of Corrections.
FACTS
On or about April 27, 2017, Mr. Sullivan made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested an “invoice showing all calls made, cost of each call, and all deposits made to my CenturyLink/IC Solutions phone account.” On May 5, 2017, Respondent denied the request based upon Mr. Sullivan’s outstanding unpaid fees as allowed by Utah Code § 63G-2-203(8)(a)(ii). On May 10, 2017, Mr. Sullivan appealed the denial and requested a fee waiver. In a letter dated May 18, 2017, Mike Haddon, Deputy Director, denied Mr. Sullivan’s appeal stating that “a governmental entity [may] charge fees for providing records” and that his request for a fee waiver was being denied.
On July 24, 2017, Mr. Sullivan submitted a second request for the same information, and on July 26, 2017, Respondent declined to process the request because Mr. Sullivan had not paid all the fees from a previous records request. After a second appeal was denied on August 11, 2017, Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). However, a governmental entity may require payment of past fees and future estimated fees before beginning to process a request if the requester has not paid fees from previous requests. Utah Code § 63G-2-203(8)(a)(ii).
2. In the present case, Corrections did not process Mr. Sullivan’s request because he still owed an outstanding amount from a previous records request. Based on Mr. Sullivan’s failure to pay the fees from the previous request, the Committee finds that pursuant to Utah Code § 63G-2-203(8)(a)(ii), Corrections was not required to process Mr. Sullivan’s request prior to payment of outstanding fees.
3. Mr. Sullivan has also requested a waiver of his fees. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Mr. Sullivan failed to prove that he is entitled to a fee waiver pursuant to Utah Code § 63G-2-203(4).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is DENIED.
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 its 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 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 October 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 17-49
By this appeal, Petitioner, Steven Onysko, seeks access to records held by Respondent, Utah Attorney General’s Office.
FACTS
On or about March 6, 2017, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records related to a memorandum prepared by an employee of the Utah Division of Environmental Quality regarding an incident that occurred on November 9, 2016. The Utah Attorney General’s Office (“AG’s Office”) determined that the only responsive records that they maintained were found on an email account that was administered by the AG’s Office. The AG’s Office provided eleven pages of records and stated that no more responsive records could be found.
Mr. Onysko appealed to the Chief Administrative Officer challenging that the AG’s Office did not maintain any further records. In a letter dated September 18, 2017, Utah Solicitor General Tyler Green, denied Mr. Onysko’s appeal finding that all responsive records had been provided and stating that “all other records…would have to be obtained from the Utah Department of Technology Services.”
Mr. Onysko filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on December 14, 2017, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The State Records Committee is authorized to: (1) Grant the relief sought, in whole or in part of a records committee appellant; or (2) Uphold the governmental entity’s access denial, in whole or in part. Utah Code § 63G-2-403(11)(a). Having reviewed Petitioner’s records request and the arguments and testimony of the parties, the Committee is persuaded that the AG’s Office has already provided to Mr. Onysko all records that are responsive to his records request. Therefore, the Committee cannot order the AG’s Office to provide records to Petitioner that it does not possess.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, is DENIED.
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.
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 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 26th day of December 2017.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ACLU of Utah and the Disability Law Center, Petitioner, v.
DAVIS COUNTY, Respondent.
DECISION AND ORDER
Case No. 18-15
By this appeal, Petitioner, the American Civil Liberties Union of Utah and the Disability Law Center, seeks access to records held by Respondent, Davis County.
FACTS
In a letter dated October 31, 2017, David C. Reymann, legal counsel for Petitioner, filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Counsel on behalf of Petitioner requested:
1. All written standards used or relied upon by Davis County in its administration and operation of the Davis County Jail at any time during the past five (5) years, including but not limited to the Utah Jail Standards;
2. All written contracts or agreements relating to or governing Davis County’s use of the standards referenced in request no. 1, including but not limited to any written license agreements and any documents reflecting any consideration paid by Davis County for use of the Utah Jail Standards;
3. All correspondence, including emails, between Davis County (including the Sheriff’s Department), on the one hand, and Mr. Gary DeLand, Mr. Tate McCotter, the Utah Sheriffs’ Association, the National Institute of Jail Operations, and/or DeLand and Associates, on the other hand, regarding the Utah Jail Standards or any portion thereof, including but not limited to any claims of business confidentiality (including any statements of reasons) submitted to Davis County pursuant to Utah Code § 63G-2-309; and
4. All final written audits and other reports assessing Davis County’s compliance with the standards reference in request no. 1 issued at any time during the past five (5) years.
In a letter dated December 6, 2017, the Records Officer for Respondent granted in part and denied in part Petitioner’s request for records.
An appeal was filed with James E. Smith, Chief Administrative Officer for GRAMA Appeals for Respondent. Mr. Smith affirmed the decision of the Records Officer finding that some of the requested records are not records under GRAMA because Respondent “did not prepare, does not own, does not receive and does not retain the Utah Jail Standards and/or the final written audits and other reports assessing [Respondent’s] compliance with the Utah Jail Standards, in general.”
Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having reviewed the records in camera and having heard oral argument and testimony on April 12, 2018, now 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. An in camera review of the records showed that Document 17 (unredacted Document 30), Document 24 (unredacted Document 49), Document 50, and Document 27 (unredacted Document 53) are public records subject to release to Petitioner.
3. Regarding the standards and final audit reports requested by Petitioner, the Committee finds that those records are not Respondent’s records. Therefore, since Respondent is not the owner of the records, Respondent is not required under GRAMA to produce the records to Petitioner. See, Bryner v. Utah Dept. of Technology Serv., State Records Committee Case No. 16-27 (July 26, 2016). Records requests under GRAMA should be made to the actual record holder of a record and not to the governmental entity to whom the record has been shared. See, Utah Code § 63G-2-206(4); Onysko v. Utah State Tax Commission, State Records Committee Case No. 11-08 (June 20, 2011).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, ACLU of Utah and the Disability Law Center, is 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.
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).
Entered this 23rd day of April 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
UTAH DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.
DECISION AND ORDER
Case No. 17-41
By this appeal, Petitioner, Steven Onysko, seeks access to records held by Respondent, Utah Department of Human Resource Management.
FACTS
This matter came before the State Records Committee (“Committee”) on October 12, 2017.
A motion was made by a Committee member at that hearing to review the disputed records in camera. After a determination was made that the volume of records would make it difficult for the Committee to review the records during the hearing, the Committee voted unanimously to continue the hearing to a later date. On November 9, 2017, the Committee, after having reviewed the materials in camera, now 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). GRAMA excludes “a temporary draft or similar material prepared for the originator's personal use or prepared by the originator for the personal use of an individual for whom the originator is working” from being considered a “record” subject to disclosure under GRAMA. Utah Code § 63G-2-103(22)(b)(ii). Additionally, records that are private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records under GRAMA. Utah Code § 63G-2-201(3)(a).
2. Records created or maintained for civil or administrative enforcement purposes, or for discipline purposes, are protected records if properly classified by the governmental entity and release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement or discipline; (2) Reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; or (3) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. See, Utah Code §§ 63G-2-305(10)(a), -305(10)(b) and -305(10)(d)
3. After having considered the written and oral arguments by the parties, and having reviewed the subject records in camera, the Committee finds that the records were non-records pursuant to Utah Code §§ 63G-2-103(22)(b)(ii), or properly classified as protected records pursuant to Utah Code §§ 63G-2-305(10)(a), -305(10)(b) and/or -305(10)(d).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, is DENIED.
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.
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 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 21st day of November 2017.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JON HAGEN, on behalf of H-WIRE TECHNOLOGY SOLUTIONS Petitioner, v.
CAPSTONE CLASSICAL ACADEMY OGDEN, UTAH, Respondent.
DECISION AND ORDER
Case No. 18-08
By this appeal, Petitioner, Jon Hagen, seeks access to records held by Respondent, Capstone Classical Academy Ogden, Utah.
FACTS
On or about November 6, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records related to a Request for Proposal (“RFP”) for IT Services posted by Respondent on October 25, 2017. On November 20, 2017, Respondent denied the request claiming that the records were protected. Petitioner appealed the denial and on or about January 8, 2018, the matter was addressed before the local Appeals Board where the denial was upheld.
Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on February 8, 2018, now 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. The following records are protected if properly classified by a governmental entity: (1) Records, the disclosure of which could cause commercial injury to, or confer a competitive advantage upon a potential or actual competitor of, a commercial project entity; and (2) Records, the disclosure of which would impair governmental procurement proceedings or give an unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity. See, Utah Code §§ 63G-2-305(4) and (6).
3. Counsel for Respondent argued that the records regarding the RFP should remain protected records because the contract had not yet been awarded. Counsel stated that the original RFP had been rescinded due to procedural errors, but was reissued on November 8, 2017, and at the time of the hearing, had not yet been completed. Accordingly, the information gathered during the RFP still needs to be kept non-public in order to allow a proper award of a contract to a vendor. Respondent stated that once the RFP process has been completed, a reclassification of the RFP records as “public” may occur.
4. After having reviewed the written and oral arguments of the parties, the Committee finds that, because the RFP has not yet been awarded, Respondent properly classified the records as protected records pursuant to Utah Code §§ 63G-2-305(4) and (6).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jon Hagen, is DENIED.
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.
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 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 20th day of February 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL CLÁRA, Petitioner, v.
UTAH STATE BOARD OF EDUCATION, Respondent.
DECISION AND ORDER
Case No. 18-21
By this appeal, Petitioner, Michael Clára, seeks access to records allegedly held by Respondent, the Utah State Board of Education.
FACTS
On or about April 10, 2018, Mr. Clára made a records request to the Utah State Board of Education (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Clára requested:
1. A copy of the School Resource Officer and School Administrators Training Curriculum.
2. Copies of meeting announcements, flyers, agendas, sign in sheets, minutes, emails, letters etc… demonstrating that the State School Board did “solicit input…from…interest community stakeholders…” in creating the curriculum and materials for the School Resource Officer and School Administrators training program.
3. Copies of request for proposals, contract, expenditures etc… associated with the development of the School Resource officer and School Administrators Training, Curriculum by vendors and/or consultants (those not employed by USBE).
4. Copies of documentation demonstrating an alleged “conflict of interest” that Dr. Prospero has in association with the School Resource Officer and School Administrators Training Curriculum.
On April 11, 2018, Respondent replied by e-mail stating that Respondent was only the host of the referenced meeting, and that the Utah Commission on Criminal and Juvenile Justice (“CCJJ”) was the convener of the meeting and would have the documents Mr. Clára was seeking. Mr. Clára filed an appeal to Sydnee Dickson, Respondent’s Chief Administrative Officer, who upheld the initial decision.
Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on June 14, 2018, now 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. During the hearing, counsel for Respondent argued that all records responsive to Mr. Clára’s records request have already been provided to him. Mr. Clára disagreed, giving specific examples of records he believed should be within the care and custody of Respondent.
3. Based upon the written and oral evidence submitted to the Committee, the Committee finds that there is a question whether a further search by Respondent would yield records responsive to Mr. Clára’s records request. Although many, if not all of the requested records, may be within the control and custody of CCJJ, a search of Respondent’s records may also provide records for Mr. Clára. Accordingly, the Committee finds that Respondent should search for documents responsive to Mr. Clára’s records request where Respondent is the holder of the records, and if any such records are found, provide them to Mr. Clára.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Clára, is GRANTED.
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.
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).
Entered this _25__ day of June 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SIMONSEN LAW on behalf of LYNN DAVID, Petitioner, v.
WASATCH COUNTY, Respondent.
DECISION AND ORDER
Case No. 18-41
By this appeal, Petitioner, Simonsen Law, on behalf of Lynn David, seeks access to records allegedly held by Respondent, Wasatch County.
FACTS
On or about May 27, 2018, Petitioner made a records request to Wasatch County ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records relating to funds received by Wasatch County from the State of Utah Transient Room Tax including details of how the funds were spent by Wasatch County.
No response was provided to the Petitioner and the request was deemed a denial. In a letter dated July 10, 2018, Petitioner appealed the constructive denial to Michael Davis, the Wasatch County Manager. On July 16, 2018, Mr. Davis partially denied the records request and stated that records could be provided after payment for the records had been received. Mr. Davis also denied a portion of the records requested stating that Wasatch County was not required to create new records, compile, format, manipulate, package, summarize or tailor information.
Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on November 8, 2018, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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, subject to Utah Code §§ 63G-203 & -204. A governmental entity shall provide a person with a certified copy of a record if the person: (1) Requesting the record has a right to inspect it; (2) Identifies the record with reasonable specificity; and (3) Pays the lawful fees. Utah Code § 63G-2-201(7).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
3. GRAMA also specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
4. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
5. After having reviewed all written evidence and hearing arguments by the parties during the hearing, the Committee finds that Respondent’s denial of Petitioner’s request for a fee waiver was not an unreasonable denial of a fee waiver because the evidence did not show that releasing the records would primarily benefit the public rather than the requester.
6. The Committee also upholds Wasatch County’s decision to not provide certain records because: (1) The request for a record must be made with specificity, and Petitioner’s request is not specific enough pursuant to Utah Code § 63G-2-204(1)(b); (2) There is no requirement in a records request to have the governmental entity to summarize information contained in records pursuant to Utah Code § 63G-2-201(8)(a)(ii); and (3) Some of the information requested is available through a public publication, the Utah Public Finance Website (www.transparent.utah.gov).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Simonsen Law on behalf of Lynn David is DENIED.
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.
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).
Entered this 20th day of November 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EDWARD A. BERKOVICH, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 17-48
By this appeal, Petitioner, Edward A. Berkovich, seeks access to records held by Respondent, Utah Attorney General’s Office.
FACTS
On or about July 24, 2017 Petitioner made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested a copy of an October 19, 2015, Memorandum from the Directory of the Utah Prosecution Council (“UPC”), to UPC members regarding Petitioner’s employment status. Respondent initially had denied Petitioner’s request for the record because it was classified as “protected” under GRAMA’s attorney client privilege and attorney work product provisions. See, Utah Code §§ 63G-2-305(17); -305(18). However, UPC waived its attorney client privilege regarding the record. Respondent thereafter reclassified the requested record as “private” under Utah Code §§ 63G-2-302(a) and -302(2)(d). See, Utah Code § 63G-2-307(2) and Deseret News Publishing Co., v. Salt Lake County, 2008 UT 26, ¶ 16, 182 P.3d 372.
On December 4, 2017, Respondent provided Petitioner a copy of the requested reclassified private record unredacted, with all attachments, and in its original form as had been delivered to UPC members because Petitioner was the subject of the record. See, Utah Code § 63G-2-202(1). In a memorandum submitted to the State Records Committee (“Committee”) dated December 11, 2017, Lonny J. Pehrson, Government Records Counsel for Respondent, argued that since Respondent had properly fulfilled Petitioner’s records request, Petitioner’s appeal to the Committee should be dismissed. The Committee held a hearing on December 14, 2017, and after considering the written and oral arguments of the parties, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The State Records Committee is authorized to: (1) Grant the relief sought, in whole or in part of a records committee appellant; or (2) Uphold the governmental entity’s access denial, in whole or in part. Utah Code § 63G-2-403(11)(a). Having reviewed Petitioner’s records request and the arguments and testimony of the parties, the Committee finds that Respondent fulfilled Petitioner’s records request. Therefore, the Committee cannot grant the relief sought by Petitioner because there has not been a records access denial by Respondent. Accordingly, Petitioner’s appeal to the Committee is hereby dismissed.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, is hereby DISMISSED.
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 its 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 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 26th day of December 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
GIZMODO MEDIA GROUP, Petitioner, v.
UTAH DEPARTMENT OF COMMERCE, DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING, Respondent.
DECISION AND ORDER
Case No. 18-14
By this appeal, Petitioner, Gizmodo Media Group, seeks access to records held by Respondent, Utah Department of Commerce, Division of Occupational and Professional Licensing (“DOPL”).
FACTS
On or about December 7, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested various records related to complaints, investigations and citations regarding a specific individual.
Respondent granted a portion of the request and provided approximately 16 pages of records and a CD containing videos, redacted a portion of the request classified as private and/or protected, and denied the remainder of the request.
On or about January 3, 2018, Petitioner appealed the redaction and denial of the request to the Executive Director of Commerce. Thereafter, the denial was upheld, and the appeal was denied in its entirety.
Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having reviewed the records in camera and having heard oral argument and testimony on April 12, 2018, now 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. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity, if release of the records reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(d).
3. Records containing data on individuals are private if properly classified by a governmental entity if disclosure of the records constitute a clearly unwarranted invasion of personal privacy. Utah Code § 63G-2-302(2)(d)
4. Petitioner argued that the records being requested would reveal information that would be beneficial to the public. Respondent argued that redactions of names, contact information, witnesses, and the names of other individuals were necessary because disclosure would reveal the identity of a source generally not known outside of government and/or constitute a clearly unwarranted invasion of personal privacy.
5. After having reviewed the written and oral arguments of the parties and having reviewed the records in camera, the Committee finds that Respondent properly classified the records as private pursuant to Utah Code § 63G-2-302(d) and/or as protected pursuant to Utah Code § 63G-2-305(10)(d).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Gizmodo Media Group is DENIED.
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.
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).
Entered this 23rd day of April 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NICK SCHOU on behalf of UTAH RIVERS COUNCIL, Petitioner, v.
KANE COUNTY WATER CONSERVANCY DISTRICT, Respondent.
DECISION AND ORDER
Case No. 18-30
By this appeal, Petitioner, Nick Schou, on behalf of the Utah Rivers Council, seeks access to records allegedly held by Respondent, the Kane County Water Conservancy District.
FACTS
On or about April 9, 2018, Petitioner made a records request to the Kane County Water Conservancy District ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested approximately 11 years’ worth of “…correspondence between [the] Executive Director, Mr. Mike Noel, alongside other staff and board members…” and other specified persons.
On or about April 12, 2018, Respondent indicated that they would be providing Petitioner with a “cost estimate” within 10 business days from April 9, 2018. Petitioner was provided an estimate of $7,659 in fees for one of the three records requests. On April 18, 2018, Petitioner submitted an appeal to the Chief Administrative Officer. On May 1, 2018, the Chief Administrative Officer, Amanda Buhler denied the appeal.
Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on August 9, 2018, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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, subject to Utah Code §§ 63G-203 & -204. A governmental entity shall provide a person with a certified copy of a record if the person: (1) Requesting the record has a right to inspect it; (2) Identifies the record with reasonable specificity; and (3) Pays the lawful fees. Utah Code § 63G-2-201(7).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c). Further, a governmental entity may not charge a fee for reviewing a record to determine if it is subject to disclosure. Utah Code §63G-2-203(5)(a).
3. GRAMA also specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
4. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
5. Petitioner is a non-profit organization whose stated purpose is protecting Utah watersheds. Petitioner argued that the records being requested involve the Lake Powell Pipeline (“Pipeline”), which is a “controversial proposal to pump 28 billion gallons of Colorado River water across 140 miles to Kane and Washington Counties.” Petitioner noted that the Executive Director of Respondent is Michael E. Noel, who is currently a member of the Utah State House of Representatives. Petitioner claimed that completion of the Pipeline would not benefit Kane County, and that the only area in Kane County that would benefit from the Pipeline is Johnson Canyon where Representative Noel owns approximately 750 acres of real property.
6. The documents requested by Petitioner are: (1) Any and all correspondence between Rep. Noel and/or staff and board members of Respondent with the Utah Division of Water Resources from January 1, 2007 until March 19, 2018; (2) Any and all correspondence between Rep. Noel and/or staff and board members of Respondent with Blue Castle Holdings and a named individual from January 1, 2014 until March 19, 2018; (3) Any and all correspondence between Rep. Noel and/or staff and board members of Respondent with MWH Global from January 1, 2007 until March 19, 2018.
7. Petitioner presented evidence of a 38-page complaint filed with the Utah Attorney General’s Office and the U.S. Attorney’s Office requesting an investigation related to the Pipeline. Petitioner also presented evidence that Respondent did not receive two of their records requests claiming that Respondent “refused to collect its certified mail.” After receiving the records request via e-mail, the records officer estimated a cost of $7,659 in fees just to respond to one of the three records requests.
8. According to the testimony of Respondent, $6,424 of the fee was for Mr. Noel to review his personal computer, where records were “intermingled with his private documents.”
9. After having reviewed all written evidence and hearing arguments by the parties during the hearing, the Committee finds that Respondent’s denial of Petitioner’s request for a fee waiver was an unreasonable denial of a fee waiver. Because of the very public nature of the Pipeline which includes a 38-page complaint and involvement of a member of the Utah House of Representative, the Committee holds that release of information regarding the Pipeline would “primarily benefit[] the public rather than a person.” Accordingly, the Committee finds that granting of the request for a fee waiver by Petitioner allowing release of the records would be consistent with the Legislature’s recognition of the public’s constitutional “right of access to information concerning the conduct of the public’s business.” Utah Code § 63G-2-102(1)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nick Schou on behalf of the Utah Rivers Counsel is GRANTED.
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.
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).
Entered this 20th day of August 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
MILLVILLE CITY, Respondent.
DECISION AND ORDER
Case No. 18-46
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Millville City.
FACTS
Mr. Eames made multiple records request, including amended requests and requests to other entities, to Millville City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested records relating to any and all documentation of the penal bonds which have been issued, any and all documentation of the oaths of office, and any and all respective agreements relating to the Utah Local Governments’ Trust (“ULGT”).
No responses were provided by Respondent, and Mr. Eames filed an appeal with the State Records Committee (“Committee”). In a letter dated November 2, 2018, Respondent provided a statement addressing the confusing manner in which Mr. Eames had submitted his request and why no response had been provided regarding his initial request. After hearing oral argument and testimony from all the parties on November 8, 2018, and carefully considering the requested relief 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. Additionally, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall make and maintain adequate documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities. Utah Code § 63A-12-103(4).
3. Utah Code § 10-3-819 provides that elected officials for municipalities to execute a bond with good and sufficient sureties payable to the municipality and the requirements for the bond. Any political subdivision may create and maintain a reserve fund or may jointly with one or more other political subdivisions, make contributions to a joint reserve fund “for the purpose of purchasing liability insurance to protect the cooperating subdivisions from any or all risks created by this chapter.” Utah Code § 63G-7-703(2).
4. In order to comply with the requirements of Utah Code § 10-3-819, they have a contract with ULGT pursuant to Utah Code § 63G-7-703.
5. Utah Code § 10-3-827 provides that offices of a municipality shall subscribe and file an oath of office.
6. After having reviewed all written arguments and hearing testimony presented by the parties, the Committee finds that Respondent shall provide Mr. Eames with access to, or copies if requested (Upon payment of approved fees.), of all available oaths of offices, all records of penal bonds or records of crime policy insurance in lieu of penal bonds, and records of the interlocal agreement with ULGT.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 20th day of November 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LEONARD PLATT, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 18-28
By this appeal, Petitioner, Leonard Platt seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On or about January 29, 2018, Petitioner made a records request to the Utah Attorney General’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested “[a]ny and all records pertaining to the investigation of all allegations of criminal conduct committed by Chad Lester Platt from January 1, 2012 to May 9, 2016.” Petitioner stated that he was “the brother of Chad Lester Platt, who is deceased and the executor of his will and estate.”
On February 8, 2018, Assistant Attorney General Lonny J. Pehrson stated in a letter to Petitioner that because of an ongoing investigation, “all records related to the open investigation are currently classified as protected pursuant to Utah Code § 63G-2-305(10)(a)-(d).” Petitioner filed an appeal with Utah Attorney General Sean Reyes. In a letter dated March 12, 2018, Tyler Green, Respondent’s Chief Administrative Officer, denied the appeal stating, “there is still an ongoing investigation which includes various forensic examinations of a computer belonging to Chad Lester Platt.” Mr. Green stated that during the time of the open investigations, “all records associated with the investigation will be classified as protected under Utah Code § 63G-2-305(10).”
Petitioner filed an appeal with the State Records Committee (“Committee”) and a hearing was held on June 14, 2018. At the hearing, counsel for Respondent indicated that the investigation was now closed, and that Petitioner had been provided 1,137 pages of records and four video files responsive to his records request. See, Platt v. Utah Attorney General’s Office, State Records Committee Case No. 18-18 (June 25, 2018). Respondent also provided a Classification Log describing all potentially responsive records, whether they were being provided, and the grounds for any redactions to the records provided. However, Petitioner had not had an opportunity to review the records in order to determine if the records request had been fulfilled. Accordingly, the parties agreed to continue the hearing to allow an opportunity to review the records and determine whether Respondent fulfilled Petitioner’s records request.
On June 29, 2018, Counsel for Petitioner filed a statement with the Committee regrading alleged deficiencies in Respondent’s response to the records request. Counsel argued that the Committee should order Respondent to provide 53 other records referenced in the 1,137 pages of records that had been provided.
On July 10, 2018, Respondent provided a response to the Committee regarding the alleged deficiencies raised by Petitioner. Respondent argued that the 53 additional items or types of records were beyond the scope of the original records request and was now treating them as a new records request, which Respondent “has already begun processing them as such.” Respondent stated that it should have the opportunity to properly evaluate and process the new requests and have the initial response reviewed by Respondent’s chief administrative officer if Petitioner disagrees with Respondent’s response.
On July 12, 2018, the Committee held a second hearing on this matter. The Committee allowed both parties to address their supplemental responses filed after the previous hearing. After having considered all written arguments submitted by the parties and oral arguments presented during both hearings, the Committee now issues the following Decision and Order:
STATEMENT OF REASONS FOR DECISION
1. Every 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 subject to Utah Code §§ 63G-2-203 and 63G-2-204. Utah Code § 63G-2-201(1).
2. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with reasonable specificity. Utah Code § 63G-2-204(1)(b).
3. Generally, after receiving a request for a record, a governmental entity shall approve the request and provide a copy of the record or deny the request in accordance with the procedures and requirements found in Utah Code § 63G-2-205. Utah Code § 63G-2-204(3)(a)(i) & (ii).
4. A requester may appeal an access denial by a governmental entity to the chief administrative officer of the governmental entity. Utah Code § 63G-2-401(1)(a). If the decision of the chief administrative officer of a governmental entity is to affirm the denial of a record request, the requester may either (1) Appeal the decision to the Committee pursuant to Utah Code § 63G-2-403; or (2) Petition for judicial review of the decision in district court pursuant to Utah Code § 63G-2-404. Utah Code § 63G-2-402(1)(a).
5. This appeal presents an interesting issue because the basis for the denial of access to records (records related to the open investigation were currently classified as protected pursuant to Utah Code § 63G-2-305(10)) ended shortly before a hearing was held before the Committee. Respondent attempted to comply with the records request prior to the hearing by giving Petitioner 1,137 pages of records and four video files. Recognizing the difficulty of Petitioners being able to properly determine whether Respondent complied with the records request, the Committee allowed the parties to have a continuance of the hearing until July 12, 2018.
6. Petitioner indicated in his June 29, 2018 statement that he believed there were deficiencies in Respondent’s response to the records request. Respondent indicated in its July 10, 2018 response that all records had been provided to Petitioner and that the 53 alleged deficiencies were actually new records requests and would be processed in a timely manner.
7. The Committee is persuaded by Respondent’s argument regarding the 53 alleged deficiencies, and finds that they are new records requests and therefore, are not subject to the present appeal. The Committee agrees with Respondent’s opinion that it should have the opportunity to evaluate and process the 53 requests and have the initial response reviewed by Respondent’s chief administrative officer if Petitioner disagrees with Respondent’s response. Because of this finding, both parties will still have an opportunity to evaluate the additional 53 requests and make determinations that would allow a future appeal to the Committee regarding any of the 53 requests, if Petitioner is dissatisfied with Respondent’s response.
8. Accordingly, the Committee finds that Petitioner’s January 29, 2018 request for records is granted because the reason for the records being protected pursuant to Utah Code § 63G-2-305(10) no longer exists. Additionally, the Committee is persuaded that Respondent has provided all records responsive to Petitioner’s records request. However, Petitioner’s appeal regarding the 53 alleged deficiencies in Petitioner’s June 29, 2018 response is denied because the Committee finds that these 53 items should be construed as new records requests.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Leonard Platt is 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.
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).
Entered this 23rd day of July 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
MORGAN COUNTY, Respondent.
DECISION AND ORDER
Case No. 18-37
By this appeal, Petitioner, Scott Gollaher seeks access to records held by Respondent, Morgan County.
FACTS
On May 31, 2018, Mr. Gollaher made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested “any and all records and information, in any form, that refer to or implicate [Mr. Gollaher] as a subject in a record of Morgan County” from November 1, 2011 to the date of the records request. Mr. Gollaher also requested any records involving himself that were shared with or shared by Morgan County with “any governmental entity, federal sovereign entity, person, and/or third-party.” Mr. Gollaher also made a request for a fee waiver.
On June 11, 2018, the records officer for Respondent denied the request finding that Mr. Gollaher’s records request unreasonably duplicated prior requests. The records officer also stated that the estimated fee for fulfilling the request was $800.00 and denied Mr. Gollaher’s request for a fee waiver.
In a letter dated July 11, 2018, Mr. Gollaher appealed the records officer’s denial to Respondent’s Chief Administrative Officer. No response was given by the Chief Administrative Officer, and Mr. Gollaher deemed this to be a denial. Thereafter, Mr. Gollaher filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on October 11, 2018, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with “reasonable specificity.” Utah Code § 63G-2-204(1)(b).
2. In the present case, Mr. Gollaher requested “any and all records and information, in any form, that refer to or implicate” himself covering a period of approximately seven years. This request is very similar to a request made by a Petitioner for “any records” held by the University of Utah. Schwarz v. Univ. of Utah, State Records Case No. 05-04 (Feb. 15, 2005). The Committee held that a records request “should be specific enough that a records manager who is familiar with the agency’s records would understand which records are being sought.” Id.
3. After having reviewed Mr. Gollaher’s records request, the Committee finds that it was not reasonably specific to allow a records officer to understand what records are being sought. “Any and all records” in any form from a county over a seven year period is a very broad request that would be very difficult to fulfill.
4. In addition, a governmental entity is not required to fulfill a person’s records request if the request unreasonably duplicates prior records requests from that person. Utah Code §63G-2-201(8)(a)(iv). The request from Mr. Gollaher before the Committee unreasonably duplicates, in part, previous requests from the petitioner to the governmental entity. As such the governmental entity is not required to fulfill the request. It is the responsibility of Mr. Gollaher to submit a more specific, non-duplicative records request.
5. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c). GRAMA also specifies that a governmental entity may require payment of future estimated fees before beginning to process a request if fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i).
6. Further, a governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record; or (3) The requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4).
7. After having reviewed all written materials and having heard oral argument from both parties, the Committee finds that Respondent’s decision to deny Mr. Gollaher’s request for a fee waiver was not an unreasonable denial. However, the Committee notes that contrary to Respondent’s assertion, an attorney would not be “the lowest paid employee who, in the discretion of the custodian of records, has the necessary skill and training to perform the request.” See, Utah Code § 63G-2-203(2)(b).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher, is DENIED.
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.
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).
Entered this 26th day of October 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL CLÁRA, Petitioner, v.
SALT LAKE CITY MAYOR’S OFFICE Respondent.
DECISION AND ORDER
Case No. 18-53
By this appeal, Petitioner, Michael Clára, seeks access to records allegedly held by Respondent, the Salt Lake City Mayor’s Office.
FACTS
On or about January 11, 2018, Mr. Clára made a records request to the Salt Lake City Mayor’s Office (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Clára requested “copies of the data and information used to reach” the conclusion that a road diet be implemented for 900 West in Salt Lake City. Mr. Clara also requested a fee waiver.
Respondent produced what they believed to be all responsive records to Mr. Clára’s first request, at no cost. This request was not appealed and is not a matter before the Committee. Mr. Clára filed a second request related to the 900 West project on June 28, 2018 and requested a fee waiver. Respondent denied the second request, and Mr. Clára filed an appeal with the Chief Administrative Officer who upheld the denial.
Thereafter, Mr. Clára filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on December 13, 2018, now 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. During the hearing, counsel for Respondent argued that all records responsive to Mr. Clára’s first records request have already been provided to him, at no charge, and that it was the second request at issue. Mr. Clára disagreed, indicating that an analysis should have been included as part of the response to his first request, which he believed was in the care and custody of Respondent, and the second request was for clarification of the first.
3. After consideration of the written and oral evidence submitted to the Committee, the Committee concludes that a search of Respondent’s records may provide additional records for Mr. Clára. Accordingly, the Committee instructs Respondent to search for analysis documents responsive to Mr. Clára’s records request, and if any responsive public records are found, to provide them to Mr. Clára.
4. Mr. Clára also argued that he was entitled to a fee waiver for any charges by Respondent for its actual costs in providing additional records. However, it is unclear what costs might be associated with Respondent providing public records to Mr. Clára because it is unknown, at this time, whether any responsive documents exist. Accordingly, the issue of whether a fee waiver should be granted is not yet ripe for consideration by the Committee.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Clára, is GRANTED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
",Granted,2018-12-22T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EDWARD A. BERKOVICH, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 19-06
By this appeal, Petitioner, Edward A. Berkovich, seeks access to records held by Respondent, Utah Attorney General’s Office.
FACTS
On or about November 6, 2018, Mr. Berkovich made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Berkovich requested the “freeconferencecall.com” recording of a Utah Prosecution Council (UPC) Board meeting held on October 21, 2015 to discuss the “character, professional competence, or physical or mental health” of himself and his continued employment with UPC. Respondent notified Mr. Berkovich that the portion of the recording being requested was during the closed portion of the meeting that the recording was properly classified as a protected record pursuant to Utah Code § 63G-2-305(32).
Mr. Berkovich appealed to the Chief Administrative Officer (“CAO”) for Respondent and on or about January 2, 2019, Solicitor General Tyler Green, acting as CAO, upheld the denial. Mr. Berkovich filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on March 14, 2019, and carefully considering the requested relief 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 every 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 subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). “[A]ll 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. Transcripts, minutes, recordings, or reports of the closed portion of a meeting of a public body are protected records if properly classified except as provided in Utah Code § 52-4-206. Utah Code § 63G-2-305(32).
3. The Open and Public Meetings Act (“OPMA”) similarly states that a recording, transcript, report, and written minutes of a closed meeting are protected records under GRAMA except that the records may be disclosed under a court order only as provided under Utah Code § 52-4-304. Utah Code § 52-4-206(5). A judge shall publicly disclose or reveal from the recording or minutes of the closed meeting all information about the portion of the meeting that was illegally closed if the judge determines that the public body violated specific provisions of OPMA regarding closed meetings,. Utah Code § 52-4-304(2)(b).
4. After having reviewed all the evidence including arguments presented during the hearing, the Committee finds that Respondent properly classified the requested records as protected records pursuant to Utah Code § 63G-2-305(32).
5. Mr. Berkovich requested the Committee to consider the weighing provision found in Utah Code § 63G-2-403(11)(b) which allows the Committee upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as protected “if the public interest favoring access is greater than or equal to the interest favoring restriction of access.”
6. The Committee after considering the public interest of the release of the records compared with the interest favoring restriction of access, finds that the interest favoring restriction of access outweighs the public interest favoring release of the records. The Committee has determined that the interest argued by Mr. Berkovich for releasing the records is more of a private interest of Mr. Berkovich obtaining records related to him personally as opposed to a general public interest in the records. Therefore, the Committee finds that the weighing provision is not relevant to the present case and the properly classified records should not be released to Mr. Berkovich. See also, Poll v. S. Weber City, State Records Case No. 02-01 (Jan. 14, 2002).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Edward A. Berkovich, is hereby DENIED.
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.
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).
Entered this 25th day of March 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KIT KOSAKOWSKI, Petitioner, v.
WASATCH COUNTY Respondent.
DECISION AND ORDER
Case No. 18-52
By this appeal, Petitioner, Kit Kosakowski, seeks access to records allegedly held by Respondent, Wasatch County.
FACTS
On or about August 30, 2018, Ms. Kosakowski made a records request to Wasatch County ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Kosakowski requested any and all records relating to questions raised and/or comments made during a September 11, 2017 meeting and a September 20, 2017 public hearing.
In a letter dated September 10, 2018, Respondent granted in part and denied in part Ms. Kosakowski’s request providing some records and denying others pursuant to Utah Code §§ 63G-2-305(17), -305(18), -305(22), and -305(32).
Ms. Kosakowski appealed the denial to the Chief Administrative Officer, and in a letter dated October 8, 2018, the denial was upheld. Thereafter, Ms. Kosakowski filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief 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. Records that are subject to attorney client privilege are protected records if they are properly classified by a governmental entity. Utah Code § 63G-2-305(17). Additionally, drafts, unless otherwise classified as public records, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(22).
3. After having reviewed the records in camera, the Committee finds that records labeled as 1-4 were drafts and properly classified as protected pursuant to Utah Code § 63G-2-305(22). Additionally, records labeled 5 and 6 were properly classified as attorney client privileged and properly classified as protected pursuant to Utah Code § 63G-2-305(17).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kit Kosakowski is DENIED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 19-13
By this appeal, Petitioner, Eric Peterson, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On April 23, 2019, Mr. Fierro filed an appeal with the State Records Committee (“Committee”), of a denial notice from Tyler Green, Solicitor General, for the Utah Attorney General’s Office dated March 29, 2019. The parties appeared before the Committee for a hearing on June 13, 2019 in person and by telephone. At the hearing, the parties jointly requested a continuance of the appeal in order to allow time for the parties to settle the case.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is CONTINUED until the next scheduled Committee hearing.
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.
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).
Entered this 24th day of June 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JUDITH ZIMMERMAN, Petitioner, v.
UTAH DEPARTMENT OF HEALTH, Respondent.
DECISION AND ORDER
Case No. 19-28
By this appeal, Petitioner, Judith Zimmerman, seeks access to records held by Respondent, the Utah Department of Health (“Department”).
FACTS
On May 30, 2019, Ms. Zimmerman made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Zimmerman requested records relating to original, signed copies of an e-mail chain that involved previous Department employees. In response to her request, Ms. Zimmerman was contacted on May 31, 2019 and informed that her request had been received. On June 14, 2019 the Open Records Portal sent an automatic notification to Ms. Zimmerman, informing her that the time period allotted to her request (10 days) had expired and as a result her request was being treated as a denial in compliance with Utah Code § 63G-2-205.
On June 18, 2019, Ms. Zimmerman appealed the automatic denial to the chief administrative officer of the Department. Thereafter Ms. Zimmerman was notified that records responsive to her request were being compiled and that the Department intended to fulfill her records request. On June 20, 2019, records were provided to Ms. Zimmerman. In a letter dated June 26, 2019, Joseph K. Miner, Executive Director for the Department wrote that he believed the Department “has fulfilled its obligation in responding to our request.” However, Ms. Zimmerman believed that records responsive to her request had not yet been provided by the Department, so an appeal was filed with the State Records Committee (“Committee”) on June 30, 2019. After hearing oral argument and testimony on August 8, 2019, carefully considering the requested relief 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. Ms. Zimmerman testified that she believed the Department had additional records to disclose including a specific contract which should have been found by the Department when they did a search of their e-mails. Contracts entered into by a governmental entity are normally public to the extent that the contract is expressly exempt from disclosure. Utah Code § 63G-2-301(3)(d).
3. After hearing the arguments by both parties, the Committee was not convinced that the Department had thoroughly examined all of its records in order to find all records responsive to Ms. Zimmerman’s records request. Specifically, testimony from the Department showed that the Department’s Google E-Mail Vault had not been searched, and that because of this, there is a potential that public records that have not already been disclosed to Ms. Zimmerman may be located within the vault.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Judith Zimmerman, is hereby GRANTED in that Respondent, the Utah Department of Health shall conduct a more thorough search of its Google E-Mail Vault and its other records for possible communications to determine whether public records responsive to Ms. Zimmerman’s records request exist and then provide them to Ms. Zimmerman in compliance with GRAMA.
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.
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).
Entered this 19th day of August 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
YASSINE IBRAHIM, Petitioner, v.
UNIFIED POLICE DEPARTMENT OF GREATER SALT LAKE, Respondent.
DECISION AND ORDER
Case No. 19-42
By this appeal, Petitioner, Yassine Ibrahim, seeks access to records allegedly held by Respondent, Unified Police Department of Greater Salt Lake.
FACTS
On or about July 19, 2019, Mr. Ibrahim made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Ibrahim requested from the Salt Lake County Jail medical records, jail records, and booking records concerning an individual. After no response was received from the Salt Lake County Jail, Michael Clara on behalf of Mr. Ibrahim, filed an appeal with Captain Jon Fassett stating that Mr. Clara “went with my neighbor Yassine Ibrahim to the jail records office of the Unified Police Department and hand delivered a GRAMA request for records…” Mr. Clara stated that “we are submitting” this GRAMA Notice of Appeal to the Chief Administrative Officer. No response was received from Captain Fassett.
On August 27, 2019, a Notice of Appeal was filed with the State Records Committee (“Committee”). On November 13, 2019, the Committee received an e-mail from Lieutenant Kathy Berrett with the Salt Lake County Sheriff’s Office stating that it “has not been involved in the appeals process.” On November 14, 2019, the Committee held a hearing which was attended by Mr. Clara and Harry Souvall, legal counsel for Respondent. After a discussion with Mr. Clara and Mr. Souvall, it was determined that it was in the best interests of the parties to continue the hearing until December 12, 2019 in order to allow the Salt Lake County Sheriff’s Office to also participate in the hearing.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Yassine Ibrahim, is CONTINUED until the next scheduled Committee hearing.
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.
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).
Entered this 25th day of November 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
RICHMOND CITY, Respondent.
DECISION AND ORDER
Case No. 18-48
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Richmond City.
FACTS
Mr. Eames made a records request to Richmond City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested records relating to any and all documentation of the penal bonds which have been issued, any and all documentation of the oaths of office, and any and all respective agreements relating to the Utah Local Governments’ Trust (“ULGT”).
No response was provided by Respondent and Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on November 8, 2018, and carefully considering the requested relief 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. Additionally, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall make and maintain adequate documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities. Utah Code § 63A-12-103(4).
3. Utah Code § 10-3-819 provides that elected officials for municipalities to execute a bond with good and sufficient sureties payable to the municipality and the requirements for the bond. Any political subdivision may create and maintain a reserve fund or may jointly with one or more other political subdivisions, make contributions to a joint reserve fund “for the purpose of purchasing liability insurance to protect the cooperating subdivisions from any or all risks created by this chapter.” Utah Code § 63G-7-703(2).
4. In order to comply with the requirements of Utah Code § 10-3-819, they have a contract with ULGT pursuant to Utah Code § 63G-7-703.
5. Utah Code § 10-3-827 provides that offices of a municipality shall subscribe and file an oath of office.
6. After having reviewed all written arguments and hearing testimony presented by the parties, the Committee finds that Respondent shall provide Mr. Eames with access to, and/or if requested, copies1 of all records of penal bonds, all records of crime policy insurance in lieu of penal bonds, and records of the interlocal agreement with ULGT.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 20th day of November 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
MORGAN COUNTY Respondent.
DECISION AND ORDER
Case No. 19-01
By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, the Morgan County.
FACTS
On September 5, 2018, Mr. Gollaher made a records request to the Morgan County Clerk/Auditor pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested records relating to Certificates of Insurance, payments and/or invoices and/or any accounting records relating to specific persons doing business with Respondent, Morgan County. No response was given by Respondent to Mr. Gollaher’s records request.
In a letter dated October 5, 2018, Mr. Gollaher filed an appeal to the Morgan County Chief Administrator, Ned Mecham, Council Chair for Morgan County. Again, no response was provided to Mr. Gollaher. Thereafter, Mr. Gollaher filed an appeal with the State Records Committee (“Committee”). On December 13, 2018, the Committee held a hearing. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments presented to the Committee. After having considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1).
2. 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(9)(a). However, this restriction does not apply to: (1) The first five record requests submitted to the governmental entity by or in behalf of an individual described in -201(9)(a) during any calendar year; or (2) A record request that is submitted by an attorney of an individual described in -201(9)(a). Utah Code § 63G-2-201(9)(b).
3. Respondent argues pursuant to Utah Code § 63G-2-201(9)(a) & -201(9)(b), that it was not required to respond to or provide a record in response to Mr. Gollaher’s records request because he is an individual who is confined in a jail or other correctional facility and he has already made five records requests to Morgan County in 2018. Mr. Gollaher argued that his previous records requests were made to the Morgan County Sheriff’s Office and therefore, should not be counted as records requests to Morgan County because county and the sheriff’s offices should be considered different governmental entities.
4. Utah Code § 63G-2-201(9)(b)(i) uses the wording “the first five record requests submitted to the governmental entity…” (Emphasis added). Both Morgan County and the Morgan County Sheriff’s Department would be considered “governmental entities” as defined by GRAMA in Utah Code § 63G-2-103(11). Morgan County is a political subdivision of the state as defined in Utah Code § 63G-2-103(11)(a)(v). However, Morgan County Sheriff’s Department is also considered a governmental entity, but as defined by Utah Code § 63G-2-103(11)(b)(i) which states that governmental entity also means “every office, agency, board, bureau, committee, department, advisory board, or commission of an entity listed in [Utah Code § 63G-2-103(11)(a)] that is funded or established by the government to carry out the public’s business.” During the hearing, evidence was also presented that Morgan County and the Morgan County Sheriff’s Office handle records requests separately.
5. After having reviewed the arguments and evidence presented by the parties, the Committee finds that as applied to Utah Code § 63G-2-201(9), Morgan County and the Morgan County Sheriff’s Department should be considered separate governmental entities. Mr. Gollaher making records requests of the Morgan County Sheriff’s Department does not limit the number of requests he can make with Morgan County. Although Morgan County is a county, this same reasoning could be applicable to records requests being made of offices, agencies, boards, bureaus, committees, departments, advisory boards, or commissions of the State of Utah. Accordingly, the Committee finds that Respondent should have responded to Mr. Gollaher’s records request.
6. Since Respondent has not had the opportunity to review the records that would be responsive to Mr. Gollaher’s records request to determine whether they are public or non-public records under GRAMA, this matter is continued until the next scheduled Committee meeting.
ORDER
THEREFORE, IT IS ORDERED THAT the hearing on the merits of Petitioner’s appeal be CONTINUED to the next scheduled Committee hearing.
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.
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).
Entered this 17th day of January 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BILL KESHLEAR, Petitioner, v.
SAN JUAN COUNTY, Respondent.
DECISION AND ORDER
Case No. 19-15
By this appeal, Petitioner, Bill Keshlear, seeks access to records allegedly held by Respondent, San Juan County, Utah.
FACTS
On or about February 6, 2019, Mr. Keshlear made a request for records to the San Juan County Clerk (“AG’s Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Keshlear requested records related to a meeting of the San Juan County Commission on February 5, 2019. Mr. Keshlear stated in his request that the records “would offer insight into the policymaking apparatus of the current San Juan County Commission.” In a letter dated February 26, 2019, John David Nielson, San Juan County Clerk/Auditor, stated that all records responsive to Mr. Keshlear’s request were included with the letter.
Mr. Keshlear filed an appeal to the Chief Administrative Officer for San Juan County, Kelly Pehrson. Mr. Keshlear stated that he believed San Juan County had in effect denied access to the requested records because no records were included with the letter from Mr. Nielson. In a letter dated March 11, 2019, Mr. Pehrson stated that the “resolutions you received are the only documents that my office was given” after he had reached out to the county’s departments regarding Mr. Keshlear’s records request.
On March 14, 2019, Mr. Keshlear filed an appeal with the State Records Committee (“Committee”). After reviewing the written arguments of the parties and hearing oral argument and testimony at a hearing held on June 13, 2019, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Generally 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, subject to Utah Code § 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). The definition of a record includes documents and electronic data that is prepared, owned, received, or retained by a governmental entity or political subdivision and where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a). A public employee who intentionally refuses to release a record, the disclosure of which the employee knows is required by a final unappealable order from the State Records Committee, is guilty of a class B misdemeanor. Utah Code § 63G-2-801(3)(c).
2. In the present case, the Committee was unconvinced that all records responsive to Mr. Keshlear’s records request had been provided to him. The evidence seems to show that the responsive records may include attorney-client privileged communication of County Commission Officials, which would need to be reviewed prior to being released to Mr. Keshlear in order to determine whether the records should be classified as protected non-public records. See, Utah Code § 63G-2-305(17).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Bill Keshlear, is GRANTED. Respondent, San Juan County, is ordered to review its records to determine what records are responsive to Mr. Keshlear’s February 6, 2019 records request, and then subject to the provisions of GRAMA. allow Mr. Keshlear the right to inspect and take a copy of the records.
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.
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).
Entered this 24th day of June 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANDREW GULLIFORD, Petitioner, v.
SAN JUAN COUNTY, Respondent.
DECISION AND ORDER
Case No. 19-32
By this appeal, Petitioner, Andrew Gulliford, seeks access to records allegedly held by Respondent, San Juan County.
FACTS
On or about January 11, 2019, Mr. Gulliford made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gulliford requested records related to the Bears Ears National Monument from 2016 – 2018 for:
1. All work products, opinions, and documents sent to the county by Davillier Law Group;
2. Billing and hourly rates of the attorneys not on the county payroll;
3. Copies of all written correspondence including emails between the Davillier Group and San Juan County; and
4. Copies of Contracts with the attorneys involved.
Mr. Gulliford was granted the records request as it relates to request number 2 and 4, but was denied request number 1 and 3. Mr. Gulliford appealed the denial of request number 1 and 3, and on April 19, 2019, the CAO, Kelly Pehrson upheld the denial based on the classification of the records as attorney client privilege pursuant to Utah Code § 63G-2-305(17).
On or about May 9, 2019, Mr. Gulliford filed an appeal with the State Records Committee (“Committee”), of a denial notice from Kelly Pehrson, Chief Administrative Officer for San Juan County. The parties appeared before the Committee for a hearing on September 12, 2019. At the hearing, the Committee determined that the matter would need to be continued in order to allow the Committee to conduct an in camera. review of the records to determine: (1) Whether the information was properly classified; and (2) Whether the records could be released pursuant to the weighing provision found in Utah Code § 63G-2-403(9) & (11).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Andrew Gulliford, is CONTINUED until the next scheduled Committee hearing.
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.
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).
Entered this 23rd day of September 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WAYNE CRAWFORD, Petitioner, v.
SALT LAKE COUNTY Respondent.
DECISION AND ORDER
Case No. 18-51
By this appeal, Petitioner, Wayne Crawford, seeks access to records allegedly held by Respondent, Salt Lake County.
FACTS
On or about July 26, 2018, Mr. Crawford made a records request to Salt Lake County ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Crawford requested unredacted copies of photographs related to a specific Salt Lake County Code Enforcement case.
On August 8, 2018, Respondent denied Mr. Crawford’s request pursuant to Utah Code §63G-2-305(10)(d). Mr. Crawford appealed the denial to the Chief Administrative Officer, and in a letter dated August 22, 2018, the denial was upheld.
Thereafter, Mr. Crawford filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief 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. Records which are created or maintained for civil, criminal, or administrative enforcement purposes are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to disclose the identity of a source who is not generally known outside of government. Utah Code § 63G-2-305(10)(d).
3. After having reviewed the records in camera, the Committee finds that these records were properly classified as protected records pursuant to Utah Code §§ 63G-2-305(10)(d).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Wayne Crawford is DENIED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
WEST VALLEY CITY, Respondent.
DECISION AND ORDER
Case No. 19-04
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, West Valley City.
FACTS
On or about September 25, 2018, Mr. Eames made records requests to West Valley City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested, “any and all executed and filed public official penal bonds and any and all subscribed and filed constitutional oaths of office of certain elected and appointed officers…”
On or about October 22, 2018, Mr. Eames had not received a response and appealed the constructive denial. On October 25, 2018, Respondent replied via email to Mr. Eames noting that the “email was inadvertently placed in [the] junk mail folder by [the] spam filters. This has been corrected for future communications… We are working on your request now…” Immediately thereafter, Respondent provided Mr. Eames with 27 records responsive to his request. On November 7, 2018, two department heads took an oath of office, and those records were also provided to Mr. Eames.
Unsatisfied with the Respondent’s response, Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from the Respondent on February 14, 2019, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). However, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
2. After considering all evidence presented to the Committee, the Committee finds that West Valley City has provided all records responsive to Mr. Eames’ records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is DENIED.
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.
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).
Entered this 25th day of February 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SEVEN WILSON, Petitioner, v.
TOOELE CITY, Respondent.
DECISION AND ORDER
Case No. 19-18
By this appeal, Petitioner, Seven Wilson, seeks access to records allegedly held by Respondent, Tooele City.
FACTS
On or about January 7, 2019, Mr. Wilson made a records request to Tooele City (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Wilson requested, “[a]ll supplements [sic], investigative reports, narrative statements, opening statements, D.N.A results, and discoveries” for a specific case.
Respondent denied the request, and indicated that they were classified as private and protected records. Subsequently, Mr. Wilson sent a letter to Tooele City Mayor Debra E. Winn, indicating that he sought only that portion of the records that involved him. In an appeal letter dated March 20, 2019, Mayor Winn upheld the denial.
Thereafter, Mr. Wilson filed an appeal with the State Records Committee (“Committee”). Subsequent to his appeal, Respondent provided Mr. Wilson with redacted records relating only to him.
The Committee having reviewed the arguments submitted by the parties, having reviewed the records in camera and having heard oral argument and testimony on July 11, 2019, 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 §63G-2-201(2). Records that are private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. During the hearing, Respondent argued that all available records relating to Mr. Wilson had already been provided, and no other records were available.
3. After having reviewed the written arguments of the parties and hearing testimony at the hearing, the Committee finds that all records specific to Mr. Wilson regarding this request have been provided, and that this appeal has been satisfied.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Seven Wilson, is DENIED.
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.
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).
Entered this 22nd day of July 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JESSICA MILLER on behalf of the SALT LAKE TRIBUNE, Petitioner, v.
BRIGHAM YOUNG UNIVERSITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 19-34
By this appeal, Petitioner, Jessica Miller, a reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, Brigham Young University Police Department (“BYU PD”).
FACTS
On or about May 14, 2019, Ms. Miller made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Miller requested records related to emails between BYU PD and a list of eight specific persons. Her initial request was denied and on or about June 7, 2019, Ms. Miller filed an appeal. On June 14, 2019, Chief Chris Autry of the BYU PD upheld the denial of Ms. Miller’s records request pursuant to Utah Code § 63G-2-201(3) and (6).
On or about June 25, 2019, Petitioner filed an appeal with the State Records Committee (“Committee”). The parties appeared before the Committee for a hearing on September 12, 2019. At the hearing, the Committee determined that the matter would need to be continued to allow an in camera review of the records with a log of classification by BYU PD for each of the denied records requested. See, Utah Admin. Code R. 35-1-2(5).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jessica Miller on behalf of the Salt Lake Tribune, is CONTINUED until the next scheduled Committee hearing. BYU PD is ORDERED to provide records responsive to Petitioner’s records request to the Committee in order to allow the Committee sufficient time to review the records in camera prior to the next hearing to determine whether the records are subject to GRAMA and if so, whether the records have been properly classified by BYU PD pursuant to GRAMA.
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.
Entered this 23rd day of September 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
MORGAN COUNTY Respondent.
DECISION AND ORDER
Case No. 19-03
By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, the Morgan County.
FACTS
On September 5, 2018, Mr. Gollaher made a records request to the Morgan County Clerk/Auditor pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested records relating to Certificates of Insurance, payments and/or invoices and/or any accounting records relating to specific persons doing business with Respondent, Morgan County. Mr. Gollaher did not receive a response from the Respondent and filed an appeal with the State Records Committee (“Committee”).
A hearing was held on January 10, 2019 where the Committee considered the written materials, testimony, and oral arguments. The Committee ordered that the matter be continued until the next scheduled Committee meeting so that Respondent had the opportunity to respond to Mr. Gollaher’s records request. See, Gollaher v. Morgan Cty., State Records Committee Order No. 19-01 (Jan. 17, 2019).
The matter was heard again on February 14, 2019. After having considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). However, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
2. After considering all evidence presented to the Committee, the Committee finds that Morgan County has provided all records responsive to Mr. Gollaher’s records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher is DENIED.
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.
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).
Entered this 25th day of February 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JOSHUA ALTHOFF, Petitioner, v.
MOAB CITY, Respondent.
DECISION AND ORDER
Case No. 19-16
By this appeal, Petitioner, Joshua Altoff, seeks access to records allegedly held by Respondent, Moab City, Utah.
FACTS
Mr. Altoff made a request for records to Moab City (“Moab”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Altoff requested an Internal Affairs Investigation Report (“Report”) “in its entirety, including polygraph reports and recordings.” The Report involved Mr. Altoff during his time he served as a police officer for Moab in 2016. Mr. Altoff’s records request was initially denied based upon the records being classified as protected records pursuant to Utah Code § 63G-2-305(10).
On February 20, 2019, Mr. Altoff appealed the denial to the chief administrative officer for Moab. Mr. Altoff stated that he should have access to the Report because he was the subject of the record. Mr. Altoff also stated that he should have access to the polygraph records because he was there and “I know what happened.” In a letter dated March 19, 2019, David Everitt, City Manager for Moab, stated that since Mr. Altoff was the subject of the private polygraph examination, a copy of the written polygraph examination would be provided to him with redactions. However, Mr. Altoff would not be provided with the audio/video recording of the polygraph because the recording was not “practically redactable.” Later, Moab claimed that after a diligent search, it could not find a copy of the polygraph audio/video.
On April 4, 2019, Mr. Altoff filed an appeal with the Committee. After reviewing the written arguments of the parties and hearing oral argument and testimony at a hearing held on June 13, 2019, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Generally 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, subject to Utah Code § 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). Under GRAMA, records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.
2. Moab claimed that it could not produce the polygraph audio/video because it did not possess the record. During the hearing, it was determined that a contractual relationship existed between Moab, the Utah County Sherriff’s Office (the governmental entity who prepared the Report), and Intermountain Polygraph (who administered the polygraph test). Although Moab does not currently possess the polygraph audio/video, because of this contractual relationship between Moab, the Utah County Sherriff’s Office, and Intermountain Polygraph, the Committee was convinced that Moab should be able to obtain the polygraph audio/video from either the Utah County Sherriff’s Office or Intermountain Polygraph because the polygraph audio/video should be considered Moab’s record.
3. Moab also argued that if the polygraph audio/video could be obtained, it would need to be redacted because it contains information not generally known to the public. See, Utah Code § 63G-2-305(10)(d). Mr. Altoff contended that since he was at the polygraph test when it was administered, he already knows any information contained in the polygraph audio/video. However, because the information within the polygraph audio/video may include non-public information involving individuals other than Mr. Altoff, that non-public information should be redacted prior to the file being given to Mr. Altoff even though Mr. Altoff was present at the time of the records consistent with Utah Code §§ 63G-2-305(10), -302(1)(b) and -302(2)(d). If the record cannot be obtained from the Utah County Sheriff’s Office and/or Intermountain Polygraph because it no longer exists, Moab shall provide that documentation to Mr. Altoff.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Joshua Altoff, is 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.
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).
Entered this 24th day of June 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANDREW GULLIFORD, Petitioner, v.
SAN JUAN COUNTY COMMISSIONERS, Respondent.
DECISION AND ORDER
Case No. 20-03
By this appeal, Petitioner, Andrew Gulliford seeks access to records allegedly held by Respondent, San Juan County Commissioners.
FACTS
On September 12, 2019, the State Records Committee (“Committee”) held a hearing regarding an appeal filed by Mr. Gulliford concerning the May 9, 2019 denial notice from Kelly Pehrson, Chief Administrative Officer for San Juan County. See, Guilliford v. San Juan County, State Records Committee Case No. 19-32 (Sept. 23, 2019). Pursuant to Utah Code § 63G-2-403(9)(a)(i), the Committee may review the disputed records and shall review the disputed records if weighing the various interests found under Utah Code § 63G-2-403(11). Additionally, the governmental entity must bring the disputed records to the Committee’s hearing to allow the Committee to view the records in camera if it deems an in camera inspection is necessary. Utah Admin. Code R. 35-1-2(5). The Committee determined during the September 12, 2019 hearing that the matter needed to be continued in order to allow the Committee to conduct an in camera review of the records to determine: (1) Whether the information was properly classified; and (2) Whether the records could be released pursuant to the weighing provisions found in Utah Code § 63G-2-403(9) & (11).
Subsequent to the September 12, 2019 hearing, Respondent provided records to the Committee to review in camera. However, after having reviewed the provided records, the Committee determined that Respondent had not provided a complete set of records to the Committee because it appeared that e-mail communications did not include the entire thread of the communications and the attachments to the e-mails. During a hearing held by the Committee on January 9, 2020, Respondent stated that some of the records had not been provided to the Committee because the records had already been provided to Mr. Guilliford. Unfortunately, no such instructions concerning what records had or had not been provided to Mr. Gulliford had been provided to the Committee allowing the Committee to determine whether all records responsive to the appeal had been provided for the in camera review.
Accordingly, the Committee finds that a second continuance is necessary in order to allow Respondent to provide all responsive records to the Committee for in camera review and/or a summary that allows the Committee to determine whether all disputed records have been provided to the Committee.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Andrew Gulliford, is CONTINUED until the next scheduled Committee hearing.
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.
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).
Entered this 21st day of January 2020.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TIFFANY GILMAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 20-01
By this appeal, Petitioner, Tiffany Gilman, seeks access to records held by Respondent, the Utah Department of Corrections (“Corrections”).
FACTS
On July 5, 2019, Ms. Gilman made a request for “any records you could release for research” regarding Theodore “Ted” Bundy “regarding his time as an inmate at the Utah State Prison” pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Gilman stated that she was doing research for a book and was especially interested in any mug shots or photographs related to Mr. Bundy. Corrections’ Records Manager e-mailed Ms. Gilman on July 22, 2019 informing her that there were some photographs that could be released, but if “you are looking for anything else, I would need you to be more specific.” Ms. Gilman responded that she was greatly interested in the photos and “any incident reports related to his escape attempt/the contraband he had on him, or any other incidents.”
In a letter dated July 25, 2019, the Records Manager notified Ms. Gilman that any records related to Mr. Bundy’s escape attempt, contraband, or other incidents, are considered private records not subject to disclosure pursuant to Utah Code § 63G-2-302(2)(d). The letter also stated that any logbooks from correctional officers pertaining to Mr. Bundy were similarly considered private records.
In a letter dated July 29, 2019, Ms. Gilman filed an appeal with James Hudspeth, Deputy Director for Corrections. Ms. Gilman pointed out that Mr. Bundy was executed more than 30 years previously by the State of Florida on January 24, 1989, and that records regarding his 1976 escape attempt from the Utah State Prison did not implicate any privacy rights. Ms. Gilman added that if the privacy concerns were related to other living individuals named in the documents, she would accept redactions of information concerning those individuals. In a letter dated August 19, 2019, Chyleen Richey, Deputy Director for Corrections upheld the Records Manager’s denial, finding that “the records have been correctly classified.”
On September 10, 2019 Ms. Gilman filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 9, 2020, and carefully considering the requested relief of the parties, the Committee 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 § 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. Records containing data on individual the disclosure of which “constitutes a clearly unwarranted invasion of personal privacy” are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
3. Records that if disclosed would jeopardize the security or safety of a correctional facility, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(13).
4. Counsel for Corrections argued that the requested records should be classified as private pursuant to Utah Code § 63G-2-302(2)(d). Counsel stated that Mr. Bundy has living relatives whose privacy may be impacted by releasing the records. Counsel cited to the Committee’s Danysh v. Unified Police Dept., State Records Committee Case No. 12-09 (May 12, 2012) claiming that family members continue to have a privacy interest even after the death of an individual. Counsel also contended that the incident reports from Mr. Bundy’s attempted escape in 1976 “may give ideas to current or future inmates as to how they might undermine security at the Utah State Prison.”
5. Ms. Gilman argued that considering how public Mr. Bundy’s criminal history is and the nature of Corrections’ records, there is little chance that release of these records would be considered a “clearly unwarranted invasion of personal privacy” for Mr. Bundy or his family. Concerning disclosure of records concerning Mr. Bundy’s attempted escape in 1976, Ms. Gilman stated that security controls for the prison have most likely changed since 1976, which means release of these records probably would not “undermine the security” of the Utah State Prison.
6. After having reviewed all the evidence including written and oral arguments provided by the parties, the Committee finds that the requested records should be released to Ms. Gilman subject to possible redactions. The Committee is not convinced that release of these records would be a “clearly unwarranted invasion of personal privacy” pursuant to Utah Code § 63G-2-302(2)(d). The Ted Bundy case is arguably one of the most infamous criminal cases in United States history, with the events associated with the murders, his arrest, conviction, and execution taking place more than 30 years ago. Corrections presented no testimony concerning the wishes of Mr. Bundy’s family members regarding release of the subject records at this time, or why release of this information would be a “clearly unwarranted” invasion of their personal privacy.
7. The Committee distinguishes the present case from the Danysh case in that the photographs in Danysh showed the “unusually gruesome nature of the crime scene within the interior of Mrs. Gall’s home.” See, Danysh, ¶6. Further, the surviving family members in Danysh objected to the release of the photographs, which had never been released to the public or even to the surviving family members because of their unusually gruesome nature. However, the Committee does find Corrections’ arguments persuasive regarding the redaction of any information in the records concerning living persons such as prisoners or prison guards, and any information that if released would jeopardize the security or safety of the Utah State Prison pursuant to Utah Code § 63G-2-305(13).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Tiffany Gilman, is hereby GRANTED subject to redactions as outlined in this Decision and Order.
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.
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).
Entered this 21st day of January 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 19-22
By this appeal, Petitioner, Eric Peterson, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On April 23, 2019, Mr. Peterson filed an appeal with the State Records Committee (“Committee”), of a denial notice from Tyler Green, Solicitor General, for the Utah Attorney General’s Office dated March 29, 2019. The parties appeared before the Committee for a hearing on June 13, 2019 in person and by telephone. At the hearing, the parties jointly requested a continuance of the appeal in order to allow time for the parties to settle the case. See, Peterson v. Utah Attorney General’s Office, State Records Comm. Case No. 19-13 (June 24, 2019). The parties again appeared before the Committee for a hearing on July 11, 2019, where the matter was again continued. See, Peterson v. Utah Attorney General’s Office, State Records Comm. Case No. 19-12 (July 22, 2019). The parties appeared for a third time on August 8, 2019 on the matter of the investigation report. At the hearing, the parties again jointly requested a continuance of the appeal as it relates to the investigation report.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is CONTINUED until the next available Committee hearing.
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.
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).
Entered this 19th day of August 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DANIEL MCMANN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 19-36
By this appeal, Petitioner, Daniel McMann, seeks access to records held by Respondent, Utah Department of Corrections.
FACTS
In January 2019, Respondent received Mr. McMann’s request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. McMann requested, “a police report and assault charges on [a specific person… along with [that specific person’s] plea agreement.”
On or about February 14, 2019, Respondent denied the request stating that the records were protected pursuant to Utah Code § 63G-2-305. Mr. McMann appealed the denial stating that he needed the records to present as evidence in a claim.
On or about March 22, 2019, Deputy Director James Hudspeth granted Mr. McMann’s appeal but stated that Respondent required a deposit for processing the request which would require approximately 2.5 hours of work and that there was a 25-cent per page fee. Mr. McMann requested a fee waiver, and on May 16, 2019, Deputy Director Hudspeth denied the request for a fee waiver.
Thereafter, Mr. McMann filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on October 10, 2019, carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, a `ctual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. Counsel for Respondent argued that Mr. McMann was not entitled to a fee waiver because: (1) The record does not primarily benefit the public; (2) Mr. McMann’s legal rights were not implicated by the information the record; and (3) Mr. McMann has not shown that he is indigent.
5. After having reviewed the written and oral arguments of the parties, the Committee finds that Respondent’s denial of Mr. McMann’s fee waiver request was not an unreasonable denial.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Daniel McMann, is hereby DENIED.
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.
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).
Entered this 22nd day of October 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL ROBINSON, Petitioner, v.
SANDY CITY, Respondent.
DECISION AND ORDER
Case No. 19-38
By this appeal, Petitioner, Michael Robinson, seeks access to records held by Respondent, Sandy City.
FACTS
On or about March 25, 2019, Michael Robinson made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Robinson requested all records regarding the investigation, charging, and the dismissal of a criminal case in which he was one of the victims. In a letter dated April 4, 2019, Wendy Downs from Sandy City, stated that “we have provided most of the records you requested” but also stated that a “few e-mails” are protected records pursuant to Utah Code § 63G-2-305(17) & (18).
Mr. Robinson filed an appeal to Sandy City’s Chief Administrative Officer on April 9, 2019, and on April 26, 2019, Matthew Huish upheld the denial. Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on October 10, 2019, and carefully considering the requested relief 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. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). Similarly, records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).
3. In the present case, Sandy City argues that the records that have not been provided to Mr. Robinson are e-mail communications between a police detective and the city prosecutor, and between the city prosecutor and a member of his staff. Because these records involve discussion of the referenced criminal case with the city prosecutor, Sandy City contends that they are subject to either the attorney client privilege or constitute attorney work product.
4. In a similar case, Utah Legal Clinic requested “all records from the City Prosecutor’s Office relating to the criminal prosecution” of an individual from Salt Lake City. Utah Legal Clinic v. Salt Lake City Corp., 2019 UT App 58 ¶ 1, 440 P.3d 948, 949. A witness for the city testified that releasing the records would have a chilling effect if a prosecutor’s thoughts, mental impressions, and conclusions about a case could later server as the basis of a civil suit against them. 2019 UT App at ¶ 11, 440 P.3d at 951. The Utah Court of Appeals upheld the trial court’s finding that the city had an important interest in protecting attorney-client communications and attorney work product pursuant to Utah Code § 63G-2-305(17) & (18).
5. After having reviewed the written and oral arguments of the parties, the Committee finds that Sandy City properly classified the records as protected records pursuant to Utah Code § 63G-2-305(17) & (18). Accordingly, the records should be considered non-public records and not disclosed to Mr. Robinson.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Robinson is hereby DENIED.
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.
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).
Entered this 22nd day of October 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 19-44
By this appeal, Petitioner, Steven Onysko, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On or about June 14, 2019, Mr. Onysko filed a request for records from the Utah Attorney General’s Office (“AGs Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested the call records from April 1, 2018 through June 30, 2018 for a cellphone assigned to the former Civil Chief Deputy of the AG’s Office. In a letter dated July 12, 2019, Lonny J. Pehrson, Government Records Counsel for the AG’s Office, attached thirteen pages of records responsive to Mr. Onysko’s request with some information redacted.
In a letter dated July 13, 2019, Mr. Onysko filed an appeal of Mr. Pehrson’s decision to Utah Attorney General, Sean Reyes. Mr. Onysko believed that there were additional responsive records since the records that were provided contained no records dated after April 14, 2019. Mr. Onysko also requested that he receive all of the records free from redactions. In a letter dated July 30, 2019, Tyler Green, Solicitor General for the AG’s Office, stated that no responsive records after April 14, 2018 had been provided because the former employee “left the office in early April 2018 and ceased using the phone shortly thereafter.” Mr. Green also stated that Mr. Onysko would receive unredacted copies of the records.
On August 29, 2019, Mr. Onysko 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. GRAMA generally states 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 subject to Utah Code § 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). However, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8).
2. Mr. Pehrson on behalf of the AG’s Office argued that all records responsive to Mr. Onysko’s records request had already been provided to him. Mr. Pehrson stated that upon closer review of Mr. Onysko’s appeal, it became apparent that the AG’s Office should have provided one additional page of the billing record, which was then provided to him on December 5, 2019. Otherwise, all responsive records have been provided by the AG’s Office to Mr. Onysko unredacted.
3. After having reviewed the written and oral arguments of the parties, and the evidence presented at the hearing, the Committee finds that the AG’s Office has fulfilled Mr. Onysko’s records request and that the AG’s Office does not have any other records responsive to his request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, is DENIED.
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.
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 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
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TONY ALEXANDER HAMILTON, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 19-17
By this appeal, Petitioner, Tony Alexander Hamilton, seeks access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On or about November 8, 2018, Mr. Hamilton made a records request to Utah Department of Corrections (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Hamilton requested, “[t]he contract between the UDC and the contract attorneys, Wayne Freestone and David Angerhofer.”
On the same day, Respondent denied the request indicating that the records were not directly related to Mr. Hamilton. Mr. Hamilton appealed the denial, and on November 30, 2018, Respondent’s Deputy Director upheld the denial.
Thereafter, Mr. Hamilton filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on July 11, 2019, 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 §63G-2-201(2). However, 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 with the exception of the first five record requests submitted to the governmental entity by or on behalf of an individual who is confined in a jail or other correctional facility during any calendar year requesting only a record that contains a specific reference to the individual. Utah Code §63G-2-201(10).
2. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the record did not contain a specific reference to Mr. Hamilton. The Committee finds that the issue of an “unreasonable request” is moot in that the record did not specifically reference Mr. Hamilton and could not be released.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Tony Alexander Hamilton, is DENIED.
RIGHT TO APPEAL
A party to a proceeding before the Committee 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.
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).
Entered this 22nd day of July 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KIM HENDERSON, Petitioner, v.
SAN JUAN COUNTY. Respondent.
DECISION AND ORDER
Case No. 19-33
By this appeal, Petitioner, Kim Henderson, seeks access to records allegedly held by Respondent, San Juan County.
FACTS
On April 3, 2019, Ms. Henderson made a records request to the San Juan County Clerk pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Henderson requested, “[a]ll communication between Kenneth Maryboy, Steve Boos and R. Atene (Lady next to Boos) during SJC Commission Meeting on April 2, 2019 from 9am to 1:30 pm (txt email)”
In a letter to Ms. Henderson dated April 9, 2019, John David Nielson, San Juan County Clerk/Auditor stated that “I do not have any records of any emails and/or texts that occurred during the April 2, 2019 Commission meeting…” Mr. Nielson also attached a letter from attorney Steven C. Boos, who stated that he represents Commissioner Maryboy and that “my communications with my clients and my fellow attorneys are not subject to disclosure under GRAMA.”
On May 8, 2019, Ms. Henderson appealed the decision to the San Juan County Commissioners, stating that “I do not feel that communication between San Juan County commissioners and Mr. Boo’s is subject to ‘attorney client privilege’ when the subject pertains to SJC business, especially if communication[s] are taking place during a commission work meeting/meeting.” David Everitt, Interim County Administrator for San Juan County, replied to Ms. Henderson’s appeal in a letter dated May 29, 2019. Mr. Everitt stated that because “the information you requested is subject to the attorney client privilege, the denial is upheld.”
Ms. Henderson filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 12, 2019 now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (“GRAMA”) specifies every 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 subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). “[A]ll 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 defined by GRAMA to mean a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics: (1) That is prepared, owned, received, or retained by a governmental entity or political subdivision; and (2) Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a).
3. A governmental entity may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of a person to inspect and receive a copy of a record under GRAMA. Utah Code § 63G-2-201(13).
4. Records that are subject to the attorney client privilege are protected non-public records if properly classified by a governmental entity. Utah Code § 63G-2-305(17).
5. In Respondent’s written arguments, Kendall G. Laws, San Juan County Attorney, stated that Respondent “has turned over all records in the County’s possession to Petitioner.” Mr. Laws further stated that based upon the letter from Mr. Boos “that there are other documents that may or may not be records under the definition of ‘records’” in GRAMA. During the hearing, Mr. Laws stated that he had reviewed San Juan County’s procedure for searching and locating responsive records, and that the result of the search indicated that there were no more records responsive to Ms. Henderson’s request. Mr. Everitt testified that he asked Commissioner Maryboy whether any records existed that were responsive to Ms. Henderson’s request, and was told that he did not have any responsive records.
6. Ms. Henderson argued that based upon the letter from Mr. Boos, that records did exist since he asserted attorney-client privilege for the records. Ms. Henderson also asserted that the records must exist because she could see Commissioner Maryboy and Mr. Boos texting during the April 2, 2019 San Juan County Commission meeting.
7. Based upon the oral and written arguments of the parties, the Committee is not convinced that Respondent does not possess records that are responsive to Ms. Henderson’s records request. It is reasonable to conclude that Commissioner Maryboy was texting individuals during the April 2, 2019 public San Juan County Commission meeting, and since the texts could have been created by Commissioner Maryboy in his public capacity as a Commissioner for San Juan County, as opposed to his capacity as a private individual, the text messages may be considered “records” under GRAMA pursuant to Utah Code § 63G-2-103(22)(a).
8. Accordingly, Respondent should seek to obtain the text messages from Commissioner Maryboy and make a determination whether: (1) The text messages are considered “records” pursuant to Utah Code § 63G-2-103(22)(a); and (2) The text messages should be classified as public or non-public records under GRAMA, including whether the messages would be considered “protected” records pursuant to Utah Code § 63G-2-305(17). Given the Legislative declaration of public policy stated in Utah’s Open and Public Meetings Act (“OPMA”) that political subdivisions “take their actions openly” and “conduct their deliberations openly,” it would be inappropriate for a public official to attempt to circumvent the requirements of OPMA and GRAMA by using a private device while “conduct[ing] the people’s business.” See, Utah Code §§ 52-4-102 & 63G-2-102(1).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kim Henderson, is hereby GRANTED.
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.
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 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 September 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 20-02
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, the Utah Department of Corrections.
FACTS
On or about August 3, 2019, Mr. Sullivan made a records request to the Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested, “a new policy FD20 for the privilege level system (privilege level matrix) … a copy of the policy itself … along with new matrix guideline. … [and] emails, correspondence, memorandums and letters regarding this new policy, specifically explaining or dealing with why the new policy has yet to take effect.”
On or about August 30, 2019, Mr. Sullivan’s request was denied. Corrections notified Mr. Sullivan that there is currently no new policy FD20. Mr. Sullivan appealed the denial, and on or about September 20, 2019, James Hudspeth, Deputy Director for Corrections upheld the denial.
Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). The parties appeared before the Committee for a hearing on January 9, 2020. At the hearing, the Committee determined that the matter would need to be continued for an in camera review of the records in order to make a determination of whether the records had been properly classified by Corrections.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is hereby CONTINUED until the next scheduled Committee hearing.
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.
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 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 21st day of January 2020.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CORBIN VOLLUZ Petitioner, v.
BRIGHAM YOUNG UNIVERSITY POLICE Respondent.
DECISION AND ORDER
Case No. 20-22
By this appeal, Petitioner, Corbin Volluz, seeks access to records allegedly held by Respondent, Brigham Young University Police.
FACTS
In a letter dated May 16, 2019, Mr. Volluz requested from the Brigham Young University Police (“Respondent”) records related to a specific police investigation undertaken by Respondent. The records request was made pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Volluz’s request was denied by Respondent on June 3, 2019 finding the requested records were non-public records. Mr. Volluz filed an appeal with Police Chief Chris Autry on June 3, 2019, arguing that records of the investigation should be released “to promote transparency by policy agencies.” In a letter dated June 20, 2019, Police Chief Autry affirmed the prior decision finding that the requested documents had been properly classified.
Mr. Volluz filed an appeal with the State Records Committee on June 25, 2019. On May 14, 2020, the parties appeared electronically for a hearing before the Committee presenting their arguments concerning the classification of the records. In order to determine whether the requested records are considered non-public records pursuant to the attorney client privilege, the Committee voted to review the records in camera as allowed by Utah Code § 63G-2-403(9) and Utah Admin. Code R. 35-1-2(5). Volluz v. Brigham Young Univ., State Records Committee Case No. 20-20 (May 15, 2020). After having completed an in camera review of the records, the Committee deliberated concerning the appeal in a hearing held on June 12, 2020 with the parties again appearing electronically. After carefully considering the requested relief of the parties, the Committee 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 § 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. Records that are subject to attorney client privilege are protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(17). The purpose of the attorney client privilege is to protect “information given by a client to an attorney that is ‘necessary to obtain informed legal advice-which might not have been made absent the privilege.’” S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, 33, 200 P.3d 643, 654, quoting Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990). In order to rely upon the attorney client privilege, a party must establish: (1) An attorney client relationship; (2) The transfer of confidential information; and (3) The purpose of the transfer was to obtain legal advice. Id., 200 P.3d at 655.
3. Similarly, records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding are also protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(18). GRAMA protections for records prepared by or on behalf of a governmental entity in anticipation of litigation or an attorney’s “work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation” are nearly identical to the protection provided by both the Federal and Utah Rules of Civil Procedure, widely referred to as the “work-product doctrine.” Schroeder v. Utah Atty. Gen. Office, 2015 UT 77, 37, 358 P.3d 1075, 1084. Therefore, case law interpreting state and federal procedural protections for attorney work product may be relied upon to define the scope of protection afforded by GRAMA. Id.
4. After having reviewed the records in camera, the Committee finds that Respondent properly classified the records as protected records pursuant to Utah Code §§ 63G-2-305(17) & -305(18). The review of the records showed that they consist of records either subject to the attorney client privilege or attorney work product. Additionally, although some of the records include communications between Respondent and its parent entity Brigham Young University, those records are still protected under the common legal interest privilege because of the relationship between Respondent and Brigham Young University. See, Nakamura v. Salt Lake City Corp., State Records Committee Case No. 10-17 (Aug. 19, 2010), fn., following Utah R. Evid. 504(b).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Corbin Volluz is hereby DENIED.
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.
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).
Entered this 19th day of June 2020.
BY THE STATE RECORDS COMMITTEE
KENNETH WILLIAMS, Chair Pro-Tem
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.
FACTS
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).
ORDER
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.
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 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
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v.
SEVEN COUNTY INFRASTRUCTURE COALITION, Respondent.
DECISION AND ORDER
Case No. 20-06
By this appeal, the Center for Biological Diversity, seeks access to records held by Respondent, Seven County Infrastructure Coalition.
FACTS
In a letter dated May 29, 2019, Petitioner submitted a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested communications between Respondent and the Utah Department of Transportation and/or TYR Energy containing specific phrases of the Uinta Basin Railway Project (“Project”). As part of the records request, Petitioner requested a fee waiver “because the disclosure of the requested information is in the public interest and will contribute significantly to public understanding” the Project.
In a letter dated August 26, 2019, Respondent’s Records Officer stated that the records would be provided upon payment by Petitioner of $150.00. Regarding the need for the records through the requested fee waiver, the Records Officer stated that Respondent’s records are “a matter of open and public meeting minutes” and have “never been obscured.”
Petitioner filed an appeal with the Executive Director for Respondent through a letter dated September 18, 2019. In the letter, an attorney for Petitioner stated that the fee waiver should be granted because the requested records would “allow for significant contributions to public understanding of [Respondent’s] operations and activities because [they] will shed light on [Respondent’s] decisions and priorities.” On September 25, 2019, Michael J. McKee, Executive Director for Respondent, affirmed the denial of the fee waiver request.
On October 1, 2019, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 9, 2020 and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. During the hearing, a representative for Petitioner stated that the Center for Biological Diversity is a non-profit organization headquartered in Tucson, Arizona, with a purpose of helping to protect land, water, and air allowing species to survive. The representative stated that Petitioner’s intent was to use the requested records to help educate people concerning the potential environmental impacts of the Uintah Basin Railway Project. He argued that the fee waiver should be granted because release of the information from the requested records would primarily benefit the public.
5. After reviewing both the written and oral testimony presented to the Committee, the Committee finds that Respondent’s denial of Petitioner’s request for a fee waiver for the requested records was an unreasonable denial. The Committee agrees with Petitioner’s arguments and finds that the evidence supports a finding that releasing the record would primarily benefit the public rather than a person. See, Utah Code § 63G-2-203(4)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner the Center for Biological Diversity, is hereby GRANTED.
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.
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).
Entered this 21st day of January 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 20-17
By this appeal, Petitioner, Patrick Sullivan, seeks a fee waiver and access to records allegedly held by Respondent, the Utah Department of Corrections.
FACTS
On or about November 5, 2019, Mr. Sullivan submitted two records requests pursuant to the Government Records Access and Management Act (“GRAMA”) to the Utah Department of Corrections (“Corrections”). Mr. Sullivan requested records relating to emails sent and received by certain Correctional Facility employees during a specified time frame. The second request was for copies of various records related to Mr. Sullivan, such as his offender history, c-notes, incident reports, etc. Mr. Sullivan also requested a fee waiver for his records requests, in that he was the subject of the records and impecunious. Utah Code § 63G-2-203(4)(b) and (c).
After Corrections failed to respond to Mr. Sullivan’s requests within 10 business days, Mr. Sullivan treated this as a denial and filed an appeal to Corrections’ Chief Administrative Officer. Mr. Sullivan’s request for a fee waiver was denied based upon Mr. Sullivan’s failure to prove that he was impecunious.
Thereafter, Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on April 9, 2020 and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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 subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). Utah Code § 63G-2-203(1) provides that a governmental entity “may charge a reasonable fee to cover the governmental entity’s cost of providing a record.”
2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Utah Code § 63G-2-202(1) or -202(2); or (3) The requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. Legal Counsel for Corrections argued that Mr. Sullivan should not receive a fee waiver because Mr. Sullivan is not impecunious. Counsel also noted that Corrections had already provided Mr. Sullivan 300 pages of records free of charge in 2019, which is well above the 100 pages allotted pursuant to Corrections’ policy.
5. After having reviewed the evidence presented and the written and oral arguments of the parties, the Committee finds that Corrections’ denial of Mr. Sullivan’s request for a fee waiver was an unreasonable denial. The Committee noted that Corrections has a history of not addressing fee waiver standards other than the “impecuniosity” status of an individual. In the present case, Corrections failed to address that Mr. Sullivan was the subject of the records request as detailed in Utah Code § 63G-2-203(4)(b).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is hereby GRANTED.
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.
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 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 20th day of April 2020.
BY THE STATE RECORDS COMMITTEE
__________________________________________
KENNETH WILLIAMS, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SHEILA CANAVAN, Petitioner, v.
SAN JUAN COUNTY, Respondent.
DECISION AND ORDER
Case No. 20-25
By this appeal, Petitioner, Sheila Canavan, seeks access to records held by Respondent, San Juan County.
FACTS
In a document dated February 14, 2020, Ms. Canavan made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Ms. Canavan sought to obtain copies of local referendum petition signature packets with redactions made for birth dates of signatories. Respondent provided records to Ms. Canavan with dates of birth and the home addresses of the signatories redacted.
Ms. Canavan filed an appeal with Mack McDonald, San Juan County Administrator, concerning the decision to redact the home addresses. Mr. McDonald upheld the previous denial stating that the records were properly classified as private and protected pursuant to Utah Code §§ 63G-2-302 and -305.
Ms. Canavan filed an appeal with the State Records Committee (“Committee”). On June 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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. Signatures of an individual on a political petition are considered protected records pursuant to Utah Code § 63G-2-305(76). However, the records custodian of a signature described in Utah Code § 63G-2-305(76) shall upon request, except for a name or signature classified as private under Title 20A, Chapter 2, Voter Registration, provide a list of the names of the individuals who signed the petition and permit an individual to view, but not take a copy or other image of, the signatures on a political petition described in Utah Code § 63G-2-305(76). Utah Code § 63G-2-305.5(1).
3. Additionally, an initiative packet as defined in Utah Code § 20A-7-101, and a referendum packet as defined in Utah Code § 20A-7-101, after the packet is submitted to a county clerk, is a public record except to the extent they contain information expressly permitted to be treated confidentially pursuant to Utah Code § 63G-2-201(3)(b) & (6)(a) and Utah Code § 63G-2-301(2)(p). See also, Count my Vote, Inc. v. Cox, 2019 UT 60, 452 P.3d 1109.
4. After having considered the arguments of the parties and the above listed statutes, the Committee finds that Respondent should fulfill Ms. Canavan’s records request by providing access to copies of the local referendum petition signature packets including the addresses of the signatories. If copies are provided to Ms. Canavan, redactions should be made of any signatures on the petitions.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sheila Canavan is hereby GRANTED as noted above.
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.
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).
Entered this 19th day of June 2020.
BY THE STATE RECORDS COMMITTEE
KENNETH WILLIAMS, Chair Pro-Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 20-11
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, the Utah Department of Corrections.
FACTS
The parties appeared before the Committee for a hearing on January 9, 2020. At the hearing, the Committee determined that the matter would need to be continued for an in camera review of the records. Sullivan v. Utah Dept. of Corr., State Records Case No. 20-02, (Jan. 21, 2020). After reviewing the records in camera, and carefully considering the requested relief 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. Drafts, unless otherwise classified as public, are protected records if they are properly classified by a governmental entity. Utah Code § 63G-2-305(22).
3. After considering the arguments of the parties, and reviewing the disputed records in camera, the Committee finds that: (1) Document #1 is not a draft pursuant to Utah Code § 63G-2-305(22), and therefore is subject to release pursuant to Utah Code § 63G-2- 201(2); and (2) Document #2 is a draft pursuant to Utah Code § 63G-2-305(22), and therefore is not subject to release.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, 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 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 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 3rd day of March 2020.
BY THE STATE RECORDS COMMITTEE
____________________________________
PATRICIA SMITH-MANSFIELD, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 20-29
The present appeal was heard by the State Records Committee (“Committee”) on July 9, 2020 with each of the parties participating electronically. Petitioner, Patrick Sullivan, made a request for a continuance stating that he had not yet received a response from Respondent, the Utah Department of Corrections, and that he also did not have all of his materials available to him for the hearing. Counsel for Respondent did not oppose the motion. The Committee unanimously voted to continue the hearing to the next available Committee hearing date.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is CONTINUED until the next available Committee hearing date.
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.
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).
Entered this 21st day of July 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RAPHAEL CORDRAY, Petitioner, v.
UTAH INLAND PORT AUTHORITY. Respondent.
DECISION AND ORDER
Case No. 20-46
By this appeal, Petitioner, Raphael Cordray, seeks access to records allegedly held by Respondent, the Utah Inland Port Authority.
FACTS
On or about May 1, 2020, Ms. Cordray made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Cordray requested “emails, correspondence, other paper or electronic records, maps, memos, reports, photographs, depictions, and graphs containing referencing or referring to any [‘]electronic meeting,’ policy, plan or discussion that was had…zoom room, virtual meetings, and online meetings” during a specific time frame. Ms. Cordray also requested records “created or distributed for the purpose of facilitating an electronic meeting…”
On May 7, 2020, Respondent noted that they do not have any records responsive to the request. Ms. Cordray filed an appeal by e-mail with Jack C. Hedge, Executive Director for Respondent. In a letter dated May 21, 2020, Mr. Hedge affirmed the May 7, 2020 decision, stating that Respondent does not have any other records responsive to Ms. Cordray’s records request.
On May 21, 2020, Ms. Cordray filed an appeal with the State Records Committee (“Committee”). On September 10, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). However, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
2. Respondent argued that all records responsive to Ms. Cordray’s records request had already been provided to her. However during the hearing, it was determined that a document named “UIPA Policy Binder.pdf” that was attached to a specific e-mail had not been provided.
3. After considering all evidence presented to the Committee, the Committee is convinced that Respondent did a thorough search for records and has provided all records responsive to Ms. Cordray except for the attachment to the above specified e-mail. However, prior to giving the attachment to Ms. Cordray, Respondent should review the document to determine whether any non-public information should be redacted from the attachment.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Cathryn Cordray is hereby GRANTED as specified above.
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.
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).
Entered this 21 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SAM STECKLOW, Petitioner, v.
UTAH DIVISION OF PURCHASING AND GENERAL SERVICES. Respondent.
DECISION AND ORDER
Case No. 20-61
By this appeal, Petitioner, Sam Stecklow, seeks access to records allegedly held by Respondent, Utah Division of Purchasing and General Services.
FACTS
On or about July 15, 2020, Mr. Stecklow made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Stecklow requested, “[c]opies of the applications, all documents, all addendums, and any amendments made to the applications for all medical cannabis cultivators and pharmacies that have been granted a license from the State to operate … [and] … the criteria by which the applications were scored, and the scoring documentation for each application that was awarded a license.”
In a letter dated July 23, 2020, Respondent provided to Mr. Stecklow redacted records responsive to the request. Respondent also indicated that other records were currently classified as protected records pursuant to Utah Code § 63G-2-305(b), but could become public as their classification changes.
On August 6, 2020, Mr. Stecklow filed an appeal of the partial denial with the Chief Administrative Officer who upheld the partial denial. Thereafter, Mr. Stecklow filed an appeal with the State Records Committee (“Committee”). On November 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. The Committee unanimously voted to continue the hearing to the next scheduled hearing date in order to allow the Committee to properly review the disputed records in camera. See, Utah Code § 63G-2-403(9)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sam Stecklow is hereby CONTINUED.
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.
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).
Entered this 23 day of November 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KENT SINGLETON, Petitioner, v.
RIVERDALE CITY, Respondent.
DECISION AND ORDER
Case No. 20-15
By this appeal, Petitioner, Kent Singleton, seeks access to records allegedly held by Respondent, Riverdale City.
FACTS
On a form dated September 12, 2019, Mr. Singleton made a request to Riverdale City for copies of the policies and procedures for operating a business in the Riverdale Senior Center (“Center”) and the contract between the Center and the Newsletter Advertisement Agency from 2016 to 2019. Mr. Singleton filed the request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Cindi Draper from Riverdale City stated in an e-mail to Mr. Singleton that his records request had been forwarded to the city attorney, but the “Police Department does not own the records you are requesting.”
After not receiving any other communication from Riverdale City, Mr. Singleton filed an appeal with the Chief Administrative Office for Riverdale City on October 10, 2019. After again not receiving a response, on October 30, 2019 Mr. Singleton filed an appeal with the State Records Committee (“Committee”). On February 21, 2020, the Committee held a hearing regarding the appeal, and after carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
GRAMA states that in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a).
Riverdale City provided testimony that it did not possess or control any records responsive to Mr. Singleton’s records request. After considering the evidence presented to the Committee including written and oral arguments, the Committee finds the evidence presented by Riverdale City persuasive and finds that Riverdale City does not possess records responsive to Mr. Singleton’s records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kent Singleton is hereby DENIED.
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).
Entered this 3rd day of March 2020
BY THE STATE RECORDS COMMITTEE
____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RICHARD J. GARCIA, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 15-13
By this appeal, Petitioner, Richard J. Garcia, seeks access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On or about February 13, 2015, Mr. Garcia made a records request to Utah Department of Corrections ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Garcia requested “transportation records from 7-8-14 to present” containing “all transportation departures & returns, dates, & time, policy regarding restraints.” The request was received by Respondent on or about February 18, 2015, but was returned to Mr. Garcia for compliance with Respondent’s policies, and was resubmitted on or about February 26, 2015.
On or about March 4, 2015, a records officer for Respondent denied Mr. Garcia’s GRAMA request on the grounds that the records being requested were classified as “protected.” On March 6, 2015, Mr. Garcia appealed the denial to the Respondent’s Deputy Director, Mike Haddon, which was received by the Executive Office on or about March 18, 2015. On March 19, 2015, Mr. Garcia’s appeal was denied on the grounds that transportation records for Respondent are protected records pursuant to Utah Code § 63G-2-305(11) & (13).
Mr. Garcia filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on May 14, 2015, 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 § 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. GRAMA also excludes certain documents from being considered GRAMA “records” and excludes some security measures from being subject to disclosure through GRAMA. See, Utah Code §§ 63G-2-103(22)(b) & -106.
2. Utah Code § 63G-2-305 provides that the following governmental records are considered “protected” records if they are properly classified by a governmental entity: (1) Records the disclosure of which would jeopardize the life or safety of an individual; and (2) Records that if disclosed, would jeopardize the security or safety of a correctional facility, or records relating to incarceration, treatment, probation, or parole, that would interfere with the control and supervision of an offender’s incarceration, treatment, probation, or parole. See, Utah Code § 63G-2-305(11) & (13).
3. Utah Code § 63G-2-106 additionally provides that records of a governmental entity “regarding security measures designed for the protection of persons or property, public or private” are not subject to disclosure through GRAMA.
4. Respondent presented testimony at the hearing that release of the requested records, specifically transportation orders as well as policy and procedures for Respondent, could result in harm to persons and/or jeopardize the security or safety of individuals. Respondent claimed that because of the security concerns the release of these records could cause, the disputed records were properly classified by Respondent to be protected records pursuant to Utah Code § 63G-2-305(11) & (13), or consist of records regarding security measures which are not subject to disclosure through GRAMA pursuant to Utah Code § 63G-2-106.
5. After reviewing the arguments submitted by the parties and hearing oral arguments and testimony, the Committee finds that Respondent properly classified the records as protected records pursuant to Utah Code § 63G-2-305(11) & (13), and additionally the procedures as protected and not subject to disclosure under GRAMA pursuant to Utah Code § 63G-2-106.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Richard J. Garcia, is DENIED.
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) (2015). 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) (2015). 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) (2015). 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) (2015). In order to protect its rights on appeal, a party may wish to seek advice from an attorney.
PENALTY NOTICE
Pursuant to Utah Code § 63G-2-403(15)(c) (2015), 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) (2015). 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) (2015).
Entered this 26th day of May, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JASON BEHAR, Petitioner, v.
DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.
DECISION AND ORDER
Case No. 15-21
By this appeal, Petitioner, Jason Behar, seeks access to records allegedly held by Respondent, Utah Department of Human Resource Management.
FACTS
On or about May 1, 2015, Mr. Behar made a records request to the Utah Department of Human Resource Management (“Respondent”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Behar requested a copy of “[a]ll records the State of Utah has with my name on it.” On May 15, 2015, Mr. Behar was sent a package that contained the records maintained by Respondent. The package also contained a letter stating that some of the records requested were withheld because they had been classified as private or protected pursuant to Utah Code §§ 63G-2-302(2)(d), 63G-2-305(10)(a), -305(10)(b), and -305(25). On May 23, 2015, Mr. Behar appealed the denial, and on June 1, 2015, Executive Director, Ms. Cragun, upheld the denial stating that the records were properly classified.
On June 9, 2015, Mr. Behar filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, on July 9, 2015, 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. The Committee after having reviewed all of the records submitted to them from Respondent, in camera, bates stamped each record for the purpose of identification for discussion during their open deliberations.
3. Records that are created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records reasonably could be expected to disclose the identity of a source who is not generally known outside of government, and, in the case of a record compiled in the court of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source, may be properly classified as protected records. Utah Code § 63G-2-305(10)(d).
4. Respondent argued that witness statements and other information came from individuals unsolicited, and that there should remain a privacy interest for the witnesses that participated.
5. Based upon this evidence, the Committee finds that the information that reasonably could be expected to disclose the identity of a source was properly classified as protected pursuant to § 63G-2-305(10)(d). As such, the Committee finds that the record bates stamped 3 was properly classified, in its entirety.
6. However, the Committee finds that the records bates stamped 1, 2, 4, 5, 6, 7, 8, and 9 could reasonably be released to Mr. Behar, with the personally identifiable information or information that could reasonably expected to disclose the identity of a source being fully and completely redacted, including the time of the particular event, but not the actual time of the emails themselves.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jason Behar, is 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 its 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 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 20th day of July, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
MORGAN COUNTY ATTORNEY’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 15-29
By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, the Morgan County Attorney’s Office.
FACTS
On or about July 8, 2015, Mr. Gollaher made a records request to the Morgan County Attorney’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested “…the record or receipt by the Morgan County Attorney’s Office of the 5 colored photos emailed” that were sent to Mr. Gollaher on March 29, 2015, at 3:10 p.m. in relationship to the search warrant executed at a specific address on or about July 13, 2012. In addition, Mr. Gollaher requested receipt and/or record of the October 11, 2013, Children’s Justice Center interview on DVD that was sent to Mr. Gollaher on May 6, 2015, via postal mail by Morgan County Attorney’s Office. Mr. Gollaher's request was received by Respondent on or about July 20, 2015, and on the same day, Respondent notified Mr. Gollaher that no responsive records were available.
On or about July 20, 2015, Mr. Gollaher responded to Respondent's response, and on September 3, 2015, Mr. Gollaher filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 12, 2015, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i). The governmental entity is also not required to provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(a)(iii). Additionally, the Committee cannot order a governmental entity to disclose a record that it does not possess. See, Utah Code § 63G-2-403(12) & Utah Admin. Code R 35-2-2(2).
2. In the present case, counsel for Respondent indicated, via letter, that the Morgan County Attorney’s Office is not in possession of any record that is responsive to Mr. Gollaher’s July 8, 2015, GRAMA request.
3. Accordingly, after reviewing the arguments submitted by the parties, hearing oral argument and the testimony of Mr. Gollaher, and based upon the evidence that was presented, the Committee finds insufficient evidence to show that Respondent possesses the records responsive to Mr. Gollaher’s July 8, 2015, GRAMA request. However, it should be noted that Respondent’s failure to appear before the Committee to answer questions from the Committee made this determination very difficult, and Respondent is encouraged to appear before the Committee in the future.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher, is DENIED.
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 its 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 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 November, 2015.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NATE CARLISLE, SALT LAKE TRIBUNE, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 15-17
By this appeal, Petitioner, Nate Carlisle, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On January 23, 2015, Mr. Carlisle made a records request, via email, to the Utah Attorney General’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Carlisle requested “[a]ll incoming and outgoing correspondence concerning Cameron Noel originating in 2014 or 2015 including, but not limited to, letters, emails, text messages and instant messaging programs” and “[t]he letter deputizing Troy Rawlings to consider criminal charges against Cameron Noel and any related instructions to Mr. Rawlings.” On February 17, 2015, Respondent denied Mr. Carlisle’s records request, claiming that the records were either protected or private pursuant to Utah Code §§ 63G-2-305(10)(a-c), -302(2)(d) and -302(1)(b).
Mr. Carlisle filed an appeal with Respondent and in a letter dated March 17, 2015, Parker Douglas, General Counsel and Chief of Staff for Respondent, denied Mr. Carlisle’s appeal stating that pursuant to Utah Code § 63G-2-305(10), the records were protected. Mr. Douglas also indicated that Respondent was withdrawing its claim that some of the records were classified as private records. However, during testimony the Respondent reinstated the privacy classification for two records that were provided for in camera review. On April 11, 2015, Mr. Carlisle filed an appeal on behalf of the Salt Lake Tribune with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having review the materials provided for in camera review, on May 14, 2015, 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 that are created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are properly classified as protected records if release of the records: (a) reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; (c) would create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10).
3. Counsel for Respondent argued at the hearing that the records were properly classified as protected because they are related to a current ongoing investigation of Cameron Noel, Beaver County Sherriff. Counsel could not provide specifics concerning the investigation including what entity was investigating or the scope of the investigation, and then later stated that he could neither confirm nor deny if an investigation was “pending or ongoing.”
4. The Committee reviewed the disputed records in camera. The Committee found the records were improperly classified as protected records pursuant to Utah Code § 63G-2-305(10), and should be considered public records with the exception of the records numbered 3 and 4. The Committee held that Records 3 and 4 were properly classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(10)(a) and (c) because release could be expected to interfere with investigations and would create a danger of depriving a person of a right to a fair trial.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is GRANTED except for the records numbered 3 and 4 as stated above.
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) (2015). 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) (2015). 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) (2015). 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) (2015). In order to protect its rights on appeal, a party may wish to seek advice from an attorney.
PENALTY NOTICE
Pursuant to Utah Code § 63G-2-403(15)(c) (2015), 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) (2015). 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) (2015).
Entered this 26th day of May, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TRACY TAYLOR, Petitioner, v.
WASATCH COUNTY SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 15-25
By this appeal, Petitioner, Tracy Taylor, on behalf of the Wasatch Taxpayers Association, seeks a fee waiver for access to records allegedly held by Respondent, the Wasatch County School District.
FACTS
On or about June 9, 2015, Ms. Taylor submitted seven records requests to the Wasatch County School District ("District"), pursuant to the Government Records Access and Management Act (“GRAMA”). Request numbers 3, 5, & 6 were for:
#3 Emails between the board, superintendent, and the business administrator in the last year;
#5 Improvements to the pool at TIS in the last 7 years, and how much; and
#6 Total cost of curriculum books, broken down by grades and years, for the entire district from 2000-2007.
In her request, Ms. Taylor asked for a fee waiver for the documents, stating that the requested information would be made available to the public by being published on the Wasatch Taxpayers Association’s website.
On June 15, 2015, the District granted and denied Ms. Taylor’s records request, and denied her request for a fee waiver, estimating that the cost for fulfilling requests #3, #5, and #6 would be approximately $1,650.00. Ms. Taylor filed an appeal with Terry Shoemaker, Superintendent for the District, who denied the appeal on July 2, 2015. Mr. Shoemaker stated that he found the “time estimates required, with accompanying fee, to facilitate such a request is reasonable.”
Ms. Taylor filed an appeal with the State Records Committee (“Committee”) concerning the District’s denial of her fee waiver request. The Committee having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, on September 10, 2015, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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 subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). Utah Code § 63G-2-203(1) provides that a governmental entity “may charge a reasonable fee to cover the governmental entity’s cost of providing a record.” Actual costs may include the cost of staff time for “compiling, formatting, manipulating, packaging, summarizing or tailoring the record” into an organization to meet the person’s request, and the cost of staff time for search, retrieval, and other direct administrative costs for complying with the request. See, Utah Code § 63G-2-203(2)(a)(i) & (ii).
2. A governmental entity “may fulfill a record request” without charge and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a).
3. Under GRAMA, the discretion for granting a fee waiver is essentially left to the governmental entity providing the record. The standard of review for the Committee is to determine whether the decision denying the request for a fee waiver is an “unreasonable denial of a fee waiver.” See, Utah Code § 63G-2-203(6)(a).
4. The District argued that the estimate of $1,650.00 to retrieve and format the documents was a good faith estimate for a reasonable amount to charge Ms. Taylor for providing the documents to her. The District also claimed that Ms. Taylor had “not made a compelling argument that the records she seeks primarily benefit the public.”
5. After reviewing the arguments of the parties, the Committee finds that District’s decision denying Ms. Taylor’s request for a fee waiver was not an unreasonable denial. The costs associated with fulfilling Ms. Taylor’s request appear to be reasonable, and given high amount of the costs that would be incurred by the District to fulfill the records request, it was not unreasonable for the District to deny Ms. Taylor’s fee waiver request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Tracy Taylor, is DENIED.
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 its 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 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 21st day of September, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH INSURANCE DEPARTMENT, FRAUD DIVISION. Respondent.
DECISION AND ORDER
Case No. 15-33
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, Utah Department of Insurance, Fraud Division.
FACTS
In a letter dated March 30, 2015, Mr. Sullivan made a records request to the Utah Insurance Department, Fraud Division ("Fraud Division"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested “[a]ny and all, email messages or text messages, sent or received” by certain individuals where Mr. Sullivan was the subject or relating to certain cases. On April 14, 2015, Mr. Sullivan’s request was denied because the records involved an “active open case prosecuted criminally by the Fraud Division.” In a letter dated April 17, 2015, Mr. Sullivan appealed the denial to Commissioner Todd E. Kiser, Chief Administrative Officer for the Insurance Department. Commissioner Kiser referred the matter to Deputy Commissioner, Brett J. Barratt, who reviewed and then remanded the appeal to the Insurance Department (“Department”) “to produce the information requested, to the extent permitted under applicable privilege and statutory exclusions.” The Insurance Division first tried to produce the records in paper format and the Department of Corrections indicated they were required to produce the records on DVD. Mr. Sullivan thereafter was given a DVD containing over 900 records responsive to his records request at no cost, with redactions of some of the records.
In a letter dated May 9, 2015, Mr. Sullivan wrote to Commissioner Kiser stating that he had received the DVD, but since he was an inmate at the Utah State Prison and not allowed to possess DVDs or have computer access, “I can only assume this is an attempt to avoid disclosing the records I have requested.” Thereafter, Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). In his appeal, Mr. Sullivan raised three issues: (1) Redactions made by the Fraud Division were improper; (2) The Fraud Division should have granted his request for a fee waiver; and (3) The Fraud Division still possesses records that are responsive to his records request. The Committee having reviewed the materials provided for in camera review the arguments submitted by the parties, and having heard oral argument and testimony on December 10, 2015, 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. A governmental entity may properly classify a record as “protected” if the record was created or maintained for civil, criminal, or administrative purposes, if release of the record reasonably could be expected to disclose the identity of a source who is not generally known outside of government, and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(d).
3. Counsel for the Fraud Division argued that the redactions for the six records were proper and allowed by GRAMA. One document identifies a victim of and a witness of Mr. Sullivan’s insurance fraud. Four documents of a string of emails concern an investigation of an allegation that Mr. Sullivan conspired to injure a prosecution witness, and the Fraud Division redacted information that identifies an investigative source and possible victims. The last document is an email that identifies a victim and a source of information in the insurance fraud investigation.
4. The Committee reviewed the unredacted records in camera and determined that the records were properly redacted pursuant to Utah Code § 63G-2-305(10)(d).
5. Concerning Mr. Sullivan’s request for a fee waiver, a governmental entity “may fulfill a record request” without charge and is encouraged to do so when it determines that: (1) The individual requesting the record is the subject of the record; or (2) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(b) & (c). A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b).
6. After hearing arguments from the parties, the Committee finds that the Fraud Division’s denial of Mr. Sullivan’s request for a fee waiver was not unreasonable. Although Mr. Sullivan’s ability to access the information provided to him by the Fraud Division in a DVD, may be limited by his current incarceration in prison, this does not require the Fraud Division to provide the records in a different format and/or waive the fees associated with the costs of copying the records to a different format.
7. Mr. Sullivan also argued that he believed the Fraud Division has copies of emails contained within a “Google Vault.” Many emails for the State of Utah are hosted by Google Mail, and Google provides an optional service called “Google Vault” that stores copies ofemails. Counsel for the Fraud Division could not say conclusively whether the Fraud Division has Google Vault as a service.
8. Based upon the evidence presented at the hearing, the Committee finds that there is a question of fact concerning whether the Fraud Division has records responsive to Mr. Sullivan’s records request through the Google Vault service. The Fraud Division is hereby directed to determine whether it has the Google Vault service, and if so, further determine if there are additional records responsive to Mr. Sullivan’s records request, and provide those records to Mr. Sullivan consistent with the determinations’ of the Committee in this Order concerning redactions and fee waivers. See also Utah Code § 63G-2-203(1).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is 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 its 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 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 21st day of December, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
REGINALD WILLIAMS, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 16-07
By this appeal, Petitioner, Reginald Williams, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On October 14, 2015, Mr. Williams made a records request to the Utah Attorney General’s Office ("AG's Office"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Williams requested the Employee Service History for eleven individuals. On November 6, 2015, the AG’s Office responded to Mr. Williams' request and provided information regarding one employee’s name and hire date, but denied additional information regarding the employee claiming that it was non-public. The AG’s Office also denied the remainder of the employee records request, stating that “the office respectfully denies [the request] without saying whether it has any records responsive to it…” Mr. Williams appealed to the chief administrative officer of the AG’s Office, and then thereafter, filed an appeal with the State Records Committee (“Committee”).
Prior to the hearing, the AG's Office filed a "Motion for Order Implementing Certain Procedures to Preserve Confidentiality" ("Motion"). In the Motion, the AG's Office requested that the Committee allow it to “file all of its submissions to the Committee under seal” in order for the Committee to conduct its review, and that the “evidence may be submitted by affidavit.” Counsel for the AG’s Office further noted that he was not asking for an opportunity to make an oral presentation to the Committee in camera, but simply wanted to make arguments regarding the classifications of the records without revealing non-public information concerning the records.
On February 11, 2016, the Committee held a public hearing to consider the merits of the Motion and the Appeal. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony, reviewing the records in camera, and carefully considering the requested relief, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Regarding the AG's Office's Motion, the Committee has previously held that the Committee does not have the authority "to close hearings, allow ex parte arguments, or even allow the disclosure of non-public records to legal counsel for a party" other than what is specifically allowed under GRAMA and the Open and Public Meetings Act. See, Gehrke v. Utah Atty. Gen. Office, State Records Comm. Case No. 15-34 (Dec. 21, 2015). Accordingly, the Committee denies the Motion to present arguments and evidence under seal.
2. 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.
3. Mr. Williams claimed that the records should be classified as public records because the persons listed in his original records request had already been identified publicly as employees of the AG’s Office. Counsel for the AG's Office argued that all records that are public records have already been provided to Mr. Williams, and that the remaining records were properly classified as private records pursuant to Utah Code §§ 63G-2-302(2)(a) (records concerning a current or former employee), -301(2)(b)(i) (records of undercover law enforcement personnel) and -301(2)(b)(ii) (records regarding investigative personnel if disclosure could reasonably be expected to impair their effectiveness or endanger any individual's safety). Further, counsel for the AG’s Office argued that he could neither confirm nor deny that the records actually exist, as disclosure of such information would in fact be a disclose of private and protected information.
4. After hearing arguments by the parties, the Committee finds that the records relating to one individual (Jacob Taylor) should be provided to Mr. Williams after redactions are made for information that is not considered "public" pursuant to Utah Code § 63G-2-301(2)(b). Regarding the remaining ten individuals listed in Mr. Williams' request, the Committee finds that even if such records do exist, the records are properly classified as private records pursuant to Utah Code §§ 63G-2-302(2)(a) or -303, and are not subject to disclosure.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is 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 its 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 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 February 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JAMIS JOHNSON, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS Respondent.
DECISION AND ORDER
Case No. 15-23
By this appeal, Petitioner, Jamis Johnson, seeks a fee waiver for access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On or about April 30, 2015, Mr. Johnson submitted two records requests to the Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Johnson requested “detailed field notes” and emails “sent & received by AP&P officers – Mark Breinholt, Troy Staker, Unknown Wilson (Millard County)” wherein Mr. Johnson was subject matter of the records. In response to Mr. Johnson’s requests, Corrections’ responses can be summarized as follows: (1) Corrections has located approximately 94 pages of records in response to the request; and (2) Mr. Johnson is not entitled to fee waivers for the requested records, and the fee must be paid prior to the records being released pursuant to Corrections’ policies.
Mr. Johnson filed an appeal with the State Records Committee (“Committee”) concerning Corrections denial of his fee waiver request. The Committee having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, on August 13, 2015, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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 subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). Utah Code § 63G-2-203(1) provides that a governmental entity “may charge a reasonable fee to cover the governmental entity’s cost of providing a record.” Actual costs may include the cost of staff time for “compiling, formatting, manipulating, packaging, summarizing or tailoring the record” into an organization to meet the person’s request, and the cost of staff time for search, retrieval, and other direct administrative costs for complying with the request. See, Utah Code § 63G-2-203(2)(a)(i) & (ii).
2. A governmental entity “may fulfill a record request” without charge and is encouraged to do so when it determines that: (1) The individual requesting the record is the subject of the record; or (2) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(b) & (c).
3. Under GRAMA, the discretion for granting a fee waiver is essentially left to the governmental entity providing the record. Corrections outlined its procedures for granting fee waivers including a policy decision to not charge impecunious prisoners copy costs for the first 100 pages of documents received from Corrections annually. The standard of review for the Committee is to determine whether Corrections’ decision denying Mr. Johnson’s request for a fee waiver was an “unreasonable denial of a fee waiver.” See, Utah Code § 63G-2-203(6)(a). After reviewing the arguments of the parties, the Committee finds that Corrections’ decision denying Mr. Johnson’s request for a fee waiver was not an unreasonable denial.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jamis Johnson, is DENIED.
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 its 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 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 24th day of August, 2015.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KURT BAILEY, Petitioner, v.
PERRY CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 15-31
By this appeal, Petitioner, Kurt Bailey seeks access to records allegedly held by Respondent, Perry City Police Department.
FACTS
On or about July 20, 2015, Mr. Bailey made a records request to the Perry City Police Department ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Bailey requested “[a]ll written reports, notes [and] video” for a specific citation that occurred on July 18, 2015. On or about July 27, 2015, Respondent provided Mr. Bailey with a copy of the written report, and notified Mr. Bailey that “the video is evidence and could not be released.” On or about July 27, 2015, Mr. Bailey made a second records request, pursuant to GRAMA, and requested “[a]ll video and recordings including but not limited to dash cam, body camera, and any other audio and[/]or video taken or used. Radar training certificate for the officer [and] vehicle radar equipment certificated used” for a specific citation. Mr. Bailey further requested Respondent to provide “written detailed explanation as to why being denied to anything stated above.” On or about July 29, 2015, Respondent notified Mr. Bailey that he could file a motion of discovery with the Justice Court.
Mr. Bailey filed an appeal of the denials with Greg Westfall, Chief Administrative Officer. On August 24, 2015, Mr. Westfall notified Mr. Bailey that the “request has been fulfilled by Perry City’s Prosecutor Bill Morris on August 24, 2015.” Mr. Bailey noted that he only received video from the body camera.
On September 21, 2015, Mr. Bailey filed an appeal with the State Records Committee (“Committee”), and on November 3, 2015, Mr. William M. Morris, Perry City Prosecutor, filed a Motion and Order to Dismiss with the Committee. On November 12, 2015, after considering Petitioner’s arguments in the Motion to Dismiss, the Committee denied the Motion. The Committee thereafter proceeded to hold a hearing regarding Mr. Bailey’s appeal, reviewing the arguments submitted by the parties and hearing oral argument and testimony from Mr. Bailey, and now after careful consideration of all arguments, 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 private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Respondent did not make an appearance before the Committee, so the Committee was very limited in its ability to determine whether a dash camera was used on July 18, 2015, or if Respondent properly classified the records if they existed. The Committee was unable to determine if Respondent had a policy on the matter, and a review of Respondent’s municipal ordinances failed to show that it had an applicable records provision. The Division of Archives’ General Retention Schedule for the State of Utah is to retain the records for a period of three to six months, which is a period clearly within the time of Mr. Bailey’s records request.
3. After reviewing the arguments submitted by the parties, hearing oral argument and the testimony of Mr. Bailey, and a review of applicable ordinances, statutes, and retention schedules, the Committee finds that Respondent should have the requested record, and orders Respondent to provide said record to Mr. Bailey.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kurt Bailey, is GRANTED.
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 its 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 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 November, 2015.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANNIE KNOX, REPORTER FOR THE SALT LAKE TRIBUNE, Petitioner, v.
UNIVERSITY OF UTAH, et al., Respondents.
DECISION AND ORDER
Case No. 16-05
By this appeal, Petitioner, Annie Knox, Reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondents, the University of Utah, Utah State University, Weber State University, Utah Valley University, Southern Utah University, Dixie State University, Snow College, and Salt Lake Community College.
FACTS
In September, 2015, Ms. Knox made a records request to each of the Respondents pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Knox requested “student disciplinary cases of violent or sexual crime from 2005 to 2015 that reached a final disposition wherein the student was found guilty, [Ms. Knox was] seeking: The student’s name, the violation and date committed; the sanction and date issued by the university.” After some discussions between the parties, the Respondents agreed as a courtesy, to create a record without cost, and Ms. Knox agreed to reduce the time period to between 2010 and 2015.
During October 2015, Respondents provided a portion of the requested records, but declined to provide any information relating to the students' names, asserting that such information was private and protected under GRAMA as well as the Federal Family Education Rights and Privacy Act (“FERPA”). On or about October 28, 2015, Ms. Knox filed appeals to each of the Respondents, which were all denied. Ms. Knox then filed an appeal with the State Records Committee (“Committee”) on December 7, 2015. Because of the similar issues presented in the appeals, the parties agreed to consolidate the appeals into one appeal to be heard by the Committee. Accordingly, the Committee having reviewed the arguments submitted by the parties, and hearing oral argument and testimony on February 11, 2016, 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. A governmental entity may properly classify a record as “private” if the record “contain[s] data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.” See Utah Code §63G-2-302(2)(d).
3. Counsel for Respondents argued that denial of the request for records containing the student’s names was proper under GRAMA because disclosure would be a "clearly unwarranted invasion of personal privacy." Counsel further argued that releasing the names would have a deep chilling effect on the reporting of crimes by alleged victims and potentially damaging the due process rights for the accused perpetrators. This argument was supplemented by sworn testimony provided by representatives from the University of Utah, Utah State University, and Utah Valley University.
4. The Committee, having heard the arguments from the parties, and having reviewed the records in camera, determined that releasing the names of individuals who were disciplined for violation of a university codes of conduct would be a clearly unwarranted invasion of their privacy and therefore the records were properly classified as private pursuant to Utah Code § 63G-2-302(2)(d), Furthermore, because of the potential chilling effect on individuals reporting information regarding violent and/or sexual misconduct the records were properly classified as protected records pursuant to Utah Code §§ 63G-2-305(10) and -305(11).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Annie Knox, Reporter for the Salt Lake Tribune, is DENIED.
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 its 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 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 February 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UTAH RIVERS COUNCIL, Petitioner, v.
WASHINGTON COUNTY WATER CONSERVATION DISTRICT. Respondent.
DECISION AND ORDER
Case No. 16-19
By this appeal, Petitioner, the Utah Rivers Council ("Petitioner"), seeks access to records allegedly held by Respondent, the Washington County Water Conservation District ("Respondent").
FACTS
On April 14, 2016, the Committee held a hearing and heard oral arguments from the parties. During the hearing, it was determined that Applied Analysis, an entity with which the Respondent has contractual relationship, has a record that is responsive to the Petition's records request. During the hearing, the Committee determined it would need to review the contractual agreement between Respondent and Applied Analysis, in order to determine whether the Respondent maintains the requested record. The Committee voted to continue the hearing in order to allow Respondent to provide a copy of the contract for the Committee to review. See, Utah Rivers Council v. Washington Cty. Water Conservancy Dist., State Records Committee Case No. 16-12 (April 25, 2016). After having reviewed the contract, considering all arguments by the parties, and holding a second hearing on May 12, 2016, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act ("GRAMA") defines "records as a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics that is: (1) Prepared, owned, received, or retained by a governmental entity or political division; and (2) Where all the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a).
2. All records under GRAMA are public records unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). Records that are private, controlled, or protected under GRAMA, or to which access is restricted pursuant to a court rule, another state statute, federal statute, or federal regulation, are not public records. Utah Code § 63G-2-201(3).
3. Respondent had previously argued that the requested records were not considered "records" pursuant to GRAMA because the governmental entity does not maintain, and does not possess a copy of the records. However, prior testimony showed that a third a party was hired by Respondent to do work for Respondent, and the third party maintains the records as Respondent’s agent. Therefore, the governmental entity owns and can obtain a copy of the records.
4. The Committee is convinced that even though the records were maintained by a third party, Respondent was the owner of the records and therefore, the disputed records should be considered governmental records subject to GRAMA pursuant to Utah Code § 63G-2-103(22)(a). The Committee also finds that since there is no statutory provision to which access to the records is restricted, the records are public records pursuant to Utah Code § 63G-2-201(2).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Utah Rivers Council, is GRANTED.
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 its 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 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 May 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
MORGAN COUNTY, Respondent.
DECISION AND ORDER
Case No. 14-17
By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, Morgan County.
FACTS
Mr. Gollaher made a records request to Morgan County pursuant to the Government Records Access and Management Act (“GRAMA”), for copies of any subpoenas served on a police detective in two criminal cases where Mr. Gollaher is the Defendant. In a hearing held by the State Records Committee (“Committee”) on November 13, 2014, Morgan County Attorney, Jann Farris, represented to the Committee that Morgan County had one copy of a returned subpoena that had been used for both of Defendant’s criminal cases, and that a copy of the subpoena had already been provided to Mr. Gollaher. Mr. Farris further stated that the subpoena was originally created by a computer program, and he did not know if the database used by the computer program also had “metadata” (electronically stored information) including the date when the subpoena was created. Mr. Gollaher acknowledged that Morgan County had provided him with copies of other records; the subpoena was the remaining issue.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (“GRAMA”) specifies that every 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 subject to Utah Code §§ 63G-2-201(1), 63G-2-203 and 63G-2-204.
2. In response to a records request, a governmental entity is not required to create a record. Utah Code §63G-2-201(8)(a)(i).
3. A “Record” means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics: (1) That is prepared, owned, received or retained by a governmental entity or political subdivision; and (2) Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a).
4. In the present case, counsel for Morgan County did not know whether the database used to generate the subpoena related to Mr. Gollaher’s criminal cases contained electronic metadata related to the subpoena that was reproducible. Counsel further stated that Morgan County would not oppose an order requiring a search of the database to determine if the database contained reproducible information related to Mr. Gollaher’s records request.
5. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that sufficient evidence was produced to show that Morgan County’s subpoena database may contain information responsive to Mr. Gollaher’s records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher, is GRANTED, and Respondent, Morgan County, is ordered to search the relevant database which created the subject subpoena, and provide any documents that can be reproduced that are relevant to Mr. Gollaher’s records request.
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 § 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 § 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 24th day of November 2014.
BY THE STATE RECORDS COMMITTEE
____________________________________
PATRICIA SMITH-MANSFIELD,
Chairperson, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JORDANELLE SPECIAL SERVICES DISTRICT (JSSD), Petitioner, v.
OFFICE OF THE UTAH STATE AUDITOR, Respondent.
DECISION AND ORDER
Case No. 16-02
By this appeal, Petitioner, Jordanelle Special Services District (“JSSD”), seeks access to records allegedly held by Respondent, Office of the Utah State Auditor.
FACTS
On June 8, 2015, Petitioner, Jordanelle Special Services District (“JSSD”) requested records from the Office of the Utah State Auditor (“Respondent”), pursuant to the Government Records Access and Management Act (“GRAMA”), for “[a]ll documents and other records, including all communications between the Office … and any other person, that relate to the ‘Standstill Agreement.’” The GRAMA request additionally asked for “[a]ll documents and other records, including all communications, received from any person as part of the Utah State Auditor’s Audit of JSSD.”
In a letter dated August 27, 2015, Linda Siebenhaar, Records Officer for Respondent, stated that certain documents were not being provided because they involved:
(1) Communications with complainants using the Office Hotline;
(2) Persons requesting anonymity with the Office;
(3) Material that is legally owned by an individual in the individual’s private capacity and therefore, not considered a public record subject to GRAMA;
(4) Communications between the Office and JSSD because it was assumed that JSSD already had a copy of those documents;
(5) Communications with the Utah Attorney General’s Office; and
(6) Discussions of information deemed “protected” pursuant to Utah Code § 63G-2-305(32) including closed meetings held by JSSD.
Respondent also provided a number of pages of documents classified as “public,” with redactions concerning any information that Respondent determined to be “non-public” information.
In a letter dated September 28, 2015, JSSD filed an appeal with John Dougall, the Utah State Auditor, and in a letter dated October 13, 2015, Mr. Dougall denied JSSD’s appeal, adopting and re-affirming Ms. Siebenhaar’s decision granting in part, and denying in part, JSSD’s GRAMA request.
Thereafter, JSSD filed an appeal to the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, and having heard oral argument and testimony on January 14, 2016, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA describes procedures by which a person has the right to obtain copies of records. Utah Code §§ 63G-2-201 and -204.
2. The sharing provisions in GRAMA describe procedures by which a governmental entity may obtain records from another governmental entity. Utah Code § 63G-2-206.
3. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that –it does not have jurisdiction to hear the appeal of JSSD because JSSD is a “governmental entity” under Subsection 63G-2-103(11) (11)(b)(ii), not a “person” as that term is defined in GRAMA under Subsection 63G-2-103(17).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jordanelle Special Services District is DENIED. The Petitioner is not a “person” as defined by Utah Code § 63G-2-103(17), rather, the Petitioner is a governmental entity as defined by Utah Code § 63G-2-103(11)(b)(ii). As such, this Committee does not have jurisdiction over this matter, and cannot properly hear the appeal of the Petitioner.
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 Utah Code § 63G-2-404(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 its 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 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 26th day of January, 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD
Chairperson, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CODY BLACK, Petitioner, v.
LEHI CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 16-15
By this appeal, Petitioner, Cody Black, seeks access to records allegedly held by Respondent, Lehi City Police Department.
FACTS
On or about January 11, 2016, Lehi City Police Department (‘Respondent”) received a Government Records Access and Management Act (“GRAMA”) request from Mr. Black for records involving the “[h]iring/promoting methods and results/score for each applicant for each hiring/promotion event in the date range 1/01/15-11/30/15 for the Lehi Police Department Positions: deputy chief, lieutenants, sergeants, corporals, patrol officers.” In a letter dated January 28, 2016, Respondent attached “scanned copies of records from the positions,” noting that “all the information [requested] exists in a record,” but some information would not be provided. On February 1, 2016, Mr. Black appealed and in a letter dated February 17, 2016, the City Administrator for Lehi City wrote that “all of the records that were responsive to your request have been disclosed to you.”
Mr. Black filed an appeal with the State Records Committee (“Committee”). On April 14, 2016, the Committee held a public hearing to consider the merits of the Appeal. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony, and carefully considering the requested relief, the Committee 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 § 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. The definition of a record under GRAMA does not include a “personal note or personal communication” prepared or received by an employee or officer of a governmental entity in a capacity other than the employee’s or officer’s governmental capacity, or is unrelated to the conduct of the public’s business. Utah Code § 63G-2-103(22)(b)(i). A record also does not include a “daily calendar or other personal note” prepared by the originator for the originator’s personal use or for the personal use of an individual for whom the originator is working. Utah Code § 63G-2-103(22)(b)(ix).
3. Respondent argued that interviewers’ notes and scores for employment candidates “do not fall within the definition of a ‘record’” under GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(ii) and (ix). Respondent stated that the notes were personal to each interviewer and were used either to assist the interviewer in scoring the candidate’s interview responses, or were used to help remind the interviewers of the candidate’s responses during the deliberative process.
4. After carefully considering the evidence presented, the Committee finds that the interview notes and scores for the employment candidates should be considered records of the governmental entity, and should not be excluded from the definition of a “record” pursuant to Utah Code § 63G-2-103(22)(b)(ii) and (ix). The records were not used or prepared in a capacity other than the employee’s governmental capacity, and the records were related to the conduct of the public’s business. Additionally, the records were not used only for the originator’s “personal use.”
5. Respondent argued in the alternative that if the disputed records were subject to GRAMA, the records would still be considered non-public records. A governmental entity may properly classify a record as “private” if the information is “concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities…” See Utah Code § 63G-2-302(2)(a). Counsel for Respondent argued that the records were properly classified as “private” pursuant to Utah Code § 63G-2-302(2)(a).
6. The Committee finds that Respondent properly classified the records as “private” records pursuant to Utah Code § 63G-2-302(2)(a). However, pursuant to Utah Code § 63G-2-202(1)(a), the “subject of the record” is entitled to receive a copy of a non-public private record. Accordingly, Respondent should provide Mr. Black with copies of the requested private records where Mr. Black is the subject of the record, but redact any other private information where Mr. Black is not the “subject of the records.” The Committee further finds that the records also include public information that should be released to Mr. Black. These records “contain both information that the requester is entitled to inspect and information that the requester is not entitled to inspect.” See, Utah Code § 63G-2-308.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Cody Black, is 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 its 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 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 25th day of April 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL CLÁRA, Petitioner, v.
UTAH TRANSIT AUTHORITY. Respondent.
DECISION AND ORDER
Case No. 16-33
By this appeal, Petitioner, Michael Clára, seeks access to records allegedly held by Respondent, the Utah Transit Authority.
FACTS
On February 9, 2016, Mr. Clára made a request for records pursuant to the Utah Government Records Access and Management Act ("GRAMA") from the Utah Transit Authority ("UTA"). Mr. Clára requested correspondence between specified UTA employees pertaining to him, his job title, and/or associated responsibilities. Additionally, Mr. Clára requested records concerning bus stop improvements and references to a bond election.
On March 30, 2016, UTA sent a response to Mr. Clára summarizing the efforts made in responding to his records request, and requested payment of $347.50 for the copying costs for the 695 pages of documents that would be provided to him. UTA voluntarily agreed to waive all staff time associated with providing these records to Mr. Clára.
On April 13, 2016, Mr. Clára filed an appeal with UTA's Board of Trustees, claiming that he should have access to records that had been classified as protected by UTA, and that UTA should waive the fees associated with the production of the documents classified as public records. On April 22, 2016, the Board Chair for UTA's Board of Trustees, denied Mr. Clára's appeal.
Mr. Clára filed an appeal before the State Records Committee ("Committee"), and on August 11, 2016, the Committee held a hearing regarding the appeal. The parties were allowed to present their arguments, but it was determined that in order to properly review the numerous disputed records, more time would be needed for the Committee members to review the records in camera. Accordingly, a motion was made and sustained unanimously by the Committee to continue the case to allow an in camera review of the documents prior to a determination of the records classifications. See, Michael Clára vs. Utah Transit Authority, State Records Committee Case No. 16-31 (August 11, 2016). After having reviewed the records, considering all arguments by the parties, and holding a second public hearing on September 8, 2016, the Committee now 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). However, the mere existence of an attorney-client relationship does not ipso facto make all communications between an attorney and a client confidential. S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶33, 200 P.3d 643 ("SUWA"), following Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990). In order to rely upon the attorney client privilege, a party must establish: (1) An attorney-client relationship; (2) The transfer of confidential information; and (3) The purpose of the transfer was to obtain legal advice. SUWA, ¶33. A governmental entity that creates records pursuant to a statutory requirement, and not pursuant to legal counsel's involvement, may not protect records from disclosure relying upon the "attorney client privilege" simply by "channeling work through a lawyer." SUWA, ¶35.
3. UTA claimed that documents Bates stamped #48 and #85 should be classified as protected records pursuant to the attorney client privilege provision of GRAMA found in Utah Code § 63G-2-305(17). However, a review of these documents shows that they were created as an administrative response to a records request pursuant to GRAMA, and was not in anticipation of litigation other than the normal appeals process found in GRAMA. Accordingly, the Committee finds the documents Bates stamped #48 and #85 should not be considered protected records pursuant to Utah Code § 63G-2-305(17).
4. In the alternative, UTA argued that the documents that had been Bates stamped #48 and #85, should be protected records pursuant to Utah Code § 63G-2-305(10), which generally allows records to be classified as protected records if they were created or maintained for "civil, criminal, or administrative enforcement purposes..." However, since the records were created in response to a records request made under GRAMA (an administrative proceeding), that fact by itself is not sufficient to trigger the protections provided under Utah Code § 63G-2-305(10). Accordingly, the Committee finds that the documents Bates stamped #48 and #85 should be classified as public records.
5. The second group of records examined were Bates stamped #51 and #52. These records involved an email exchange discussing a newspaper article published in the Salt Lake Tribune. UTA classified these records as protected pursuant to Utah Code § 63G-2-305(17). However, an examination of these records did not show that they were the types of records that would be protected under the attorney client privilege, and therefore, they should be classified as public records.
6. The third group of records were Bates stamped #45. These records involved email correspondence discussing potential future litigation. UTA classified these records as protected records pursuant to Utah Code §§ 63G-2-305(10)(e), -305(17), and (18). Utah Code § 63G-2-305(10)(e) protects records that were created or maintained for civil, criminal, or administrative enforcement purposes if release of the records "reasonably could be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts." Utah Code § 63G-2-305(18) protects records properly classified by the governmental entity if they were "prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding."
7. After having reviewed these records in camera, the Committee finds that UTA properly classified the records Bates stamped #45 as protected records pursuant to Utah Code §§ 63G-2-305(10)(e), -305(17), and (18).
8. The fourth group of records concerned an email of an internal video (Bates stamp #104). There records were classified by UTA as protected records pursuant to Utah Code § 63G-2-305(6) (records, the disclosure of which would impair governmental procurement proceedings or give unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity) and Utah Code § 63G-2-305(17). After having reviewed these records in camera, the Committee upheld UTA's classification of these records.
9. The fifth group of records, Bates stamped #106, involved UTA forwarding an article to their legal counsel. UTA classified this record as protected pursuant to Utah Code §§ 63G-2-305(17) and -305(23) (records concerning a governmental entity's strategy about collective bargaining or imminent or pending litigation). After having reviewed this record in camera, the Committee found that this record should be classified as public because the mere forwarding of an article in this respect, did not trigger the protections of Utah Code §§ 63G-2-305(17) or -305(23).
10. The last group of records were Bates stamped specifically #77 and #78, and included all remaining records not previously reviewed in this Order. These records were classified as protected records by UTA pursuant to Utah Code §§ 63G-2-305(17), -305(18), and -305(22) (drafts, unless otherwise classified as public). The Committee found that these documents were appropriately classified as protected records pursuant to Utah Code § 63G-2-305(17), -305(18), and/or -305(22).
11. A log that was provided to the Committee gave a description of UTA's records and its classification of the records. When denying a request for a record in whole or in part, the governmental entity is required to provide: (1) A description of the record or portions of the record to which access was denied, provided that the description does not disclose private, controlled, or protected information or information exempt from disclosure; and (2) Citations to GRAMA or other laws or rules that exempt the record or portions of the record from disclosure. See, Utah Code 63G-2-205(2)(a) & (b). A review of the log shows that it does not disclose non-public information and complies with the provisions found in Utah Code § 63G-2-205. Accordingly, the log should be provided to Mr. Clára.
12. In addition to Mr. Clára's appeal of the non-public classifications by UTA of the subject records, Mr. Clára also appealed UTA's decision to deny his request for a fee waiver. Utah Code § 63G-2-203(1) states that a governmental entity may charge a "reasonable fee to cover the governmental entity's actual cost of providing a record." Actual costs may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person's request. Utah Code § 63G-2-203(2)(a)(i).
13. A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record; or (3) The requester's legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4). A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b).
14. Mr. Clára claimed that he was impecunious because of his termination as an employee of UTA, and therefore, could not afford the fee for the requested records. Counsel for UTA stated that UTA had already produced numerous pages of records to Mr. Clára at no cost, and in consideration of taxpayer funds used to provide the records to Mr. Clára, it would not be unreasonable for Mr. Clára to bear some of the costs associated with the production of the records.
15. Utah Code § 63G-2-203(4) grants governmental entities some discretion in determining whether a record request should be fulfilled without charge. After having reviewed the testimony and the written arguments of the parties, the Committee finds that UTA's denial of Mr. Clára's request for a fee waiver was not unreasonable.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Clára, is 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 its 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 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 19th day of September 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
AZLEN MARCHET, Petitioner, v.
UTAH DEPARTMENT OF PUBLIC SAFETY, BUREAU OF FORENSIC SERVICES. Respondent.
DECISION AND ORDER
Case No. 16-04
By this appeal, Petitioner, Azlen Marchet, seeks access to records allegedly held by Respondent, the Utah Department of Public Safety, Bureau of Forensic Services.
FACTS
In a letter dated November 2, 2016, Mr. Marchet made a records request to the Utah Department of Public Safety, Bureau of Forensic Services ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Marchet requested DNA test results from a Sexual Assault Evidence Kit (“SEAK”) that was collected in 2003. On November 6, 2015, Respondent denied Mr. Marchet’s request indicating that no test results were available because the SEAK had not yet been tested.
On November 14, 2015, Mr. Marchet appealed, and in a letter dated November 23, 2015, Lieutenant Jimmy Higgs, affirmed the denial. Thereafter, Mr. Marchet filed an appeal with the State Records Committee (“Committee”), and on February 11, 2016, the Committee held a public hearing. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony, and carefully considering the requested relief, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies that “[i]n response to a request, a governmental entity is not required to create a record…” Utah Code §63G-2-201(8)(a)(i).
2. Counsel for Respondent argued that the SEAK was received by Respondent on September 18, 2015, but that it has not yet been tested, and is among approximately 500 other SEAKs that are awaiting testing. Therefore, at this time, no record exists that is responsive to Mr. Marchet’s request.
3. After hearing the argument, the Committee finds that, Respondent does not have a record responsive to Mr. Marchet’s request, and pursuant to Utah Code § 63G-2-201(8)(a)(i), is not required to create a record. Accordingly, Respondent is not required to provide a record to Mr. Marchet’s records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Azlen Marchet, is DENIED.
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 its 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 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 February 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EDGARDO MATA, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 16-17
By this appeal, Petitioner, Edgardo Mata, seeks access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On or about February 4, 2016, Mr. Mata made a records request to Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Mata requested “[m]y entire STG [security threat group] file, including the validation matrix and all information listed in FD 29-03.02.” On or about February 16, 2016, Corrections notified Mr. Mata that the request was denied and that the records were classified as “protected” pursuant to Utah Code §§ 63G-2-305(11) and -305(13). On February 27, 2016, Mr. Mata appealed the denial to Deputy Director Mark Haddon, who upheld the decision that the record was appropriately classified as “protected.”
Mr. Mata filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on April 14, 2016, now 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 private, controlled, or protected under Utah Code §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Records that, if disclosed, would jeopardize the security or safety of a correctional facility, or records relating to 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 a governmental entity. Utah Code § 63G-2-305(13). Additionally, records which if disclosed, would “jeopardize the life or safety of an individual,” are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(11). Further, records created or maintained for discipline, civil, criminal, or administrative enforcement purposes, are protected records if properly classified if release of the records could be expected to interfere with the civil, criminal, or administrative enforcement proceedings, or with discipline purposes. Utah Code § 63G-2-305(10)(a) and (b).
3. Corrections argued that decisions regarding the housing of inmates and the restrictions placed upon the inmates relate to security measures for the Draper Correctional Facility (“Facility”), and should be left to the discretion of the Corrections. Corrections presented persuasive testimony that release of the disputed records would compromise the security and safety of the Facility, jeopardizing the lives and safety of individuals at the Facility, because information within the records could be used by inmates to thwart Corrections’ security procedures for the Facility.
4. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Corrections properly classified the records as protected records pursuant to Utah Code §§ 63G-2-305(10), -305(11) and -305(13).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Edgardo Mata, is DENIED.
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) and (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 its 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 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 25th day of April 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 16-34
By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, the Utah Department of Corrections.
FACTS
On February 8, 2016, Mr. Sullivan made a records request to the Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested "[a]ll emails sent and received by various Corrections employees where [Mr. Sullivan is] the subject." Mr. Sullivan also requested that all responsive records be provided in one CD.
On or about April 12, 2016, Correction's records manager sent Mr. Sullivan a letter indicating that due to the number of requests, existing workloads, and other factors, extraordinary circumstances existed pursuant to Utah Code § 63G-2-204(5)(c)(d)(e) & (f), and responses would be provided based on the extraordinary circumstances pursuant to Utah Code §63G-2-204(6)(c)(iv). The records manager determined that Corrections could respond to each of Mr. Sullivan's requests separately and sequentially. Mr. Sullivan elected to receive all responsive records on one CD. Mr. Sullivan administratively appealed the claim of extraordinary circumstances, and on April 20, 2016, Deputy Director Mike Haddon affirmed the determination of extraordinary circumstances.
Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 8, 2016, now 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. As soon as reasonably possible, but no later than ten business days after receiving a written request, or five business days after receiving a written request if the requester demonstrates that expedited response to the record request benefits the public rather than the person, the governmental entity shall respond by approving the request, denying the request or notifying the requestor that because of extraordinary circumstances the request it cannot immediately approve or deny the request. Utah Code § 63G-2-204(3)(a) and (b).
3. A request for voluminous quantity of records constitutes “extraordinary circumstances” that allow a governmental entity to delay approval or denial by an additional period of time if the governmental entity determines that due to the extraordinary circumstances it cannot respond within the time limits provided. Utah Code § 63G-2-204(5)(c).
4. If a governmental entity claims extraordinary circumstances and specifies the date when the records will be available, and, if the requester believes the extraordinary circumstances do not exist or that the date specified is unreasonable, the requester may appeal the governmental entity's claim of extraordinary circumstances or date for compliance to the chief administrative officer by filing a notice of appeal with the chief administrative officer within 30 days after notification of a claim of extraordinary circumstances by the governmental entity, despite the lack of a "determination" or its equivalent. Utah Code § 63G-2-401(1)(b).
5. At the hearing, counsel for Corrections argued it would comply with Mr. Sullivan's records request. However, the search of Google Vault for 52 separate employee emails, with multiple date ranges, would require time warranting extraordinary circumstances.
6. The Committee having heard testimony and having reviewed the arguments of the parties finds that Corrections presented sufficient evidence to show that the claim for extraordinary circumstances existed and were appropriate pursuant to Utah Code § 63G-2-204(5)(c) and Utah Code § 63G-2-204(6)(c)(iv)(B).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is hereby DENIED as detailed above.
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 its 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 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 19th day of September 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, Petitioner, v.
UTAH DEPARTMENT OF HEALTH. Respondent.
DECISION AND ORDER
Case No. 16-50
By this appeal, Petitioner, Eric Peterson, seeks access to records held by Respondent, the Utah Department of Health.
FACTS
On July 27, 2016, Mr. Peterson filed a records request pursuant to the Government Records Access and Management Act (“GRAMA”) to the Utah Department of Health (“Department”). Mr. Peterson requested all records that “may contain information relating to deaths caused in whole or in part by prescription overdoses of any kind…” Mr. Peterson stated that he was seeking the information for research purposes as allowed by Utah Code § 63G-2-202(8)(a). The Department denied Mr. Peterson’s request citing the Utah Code § 26-4-1 et seq., Utah Medical Examiner Act (“Act”), stating that the Act only allowed release of these records to attending physicians, law enforcement, and next of kin.
Mr. Peterson filed an appeal with Dr. Joseph Miner, Executive Director of the Department, arguing that the Act does not specifically address his type of records request, and that GRAMA should allow investigations that would not invade the privacy of individuals. In a letter dated September 23, 2016, Dr. Miner denied Mr. Peterson’s appeal finding that pursuant to Utah Code § 26-1-17.5 the Department has no authority to release information deemed confidential except as set forth in the Act.
On October 11, 2016, Mr. Peterson filed an appeal with the State Records Committee (“Committee”). On December 8, 2016, a hearing was before the Committee where the parties were allowed to present their legal arguments. After considering all written materials and the arguments by the parties, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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 subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2).
2. A record to which access is restricted pursuant to another state statute is not a public record. Utah Code § 63G-2-201(3)(b). The disclosure of a record to which access is governed or limited pursuant to another state statute is governed by the specific provisions of that statute. Utah Code § 63G-2-201(6)(a). GRAMA applies to records governed or limited by another state statute insofar GRAMA “is not inconsistent with the statute…” Utah Code § 63G-2-201(6)(b).
3. Under the Utah Medical Examiner Act within the Utah Health Code, Title 26, the medical examiner shall promptly deliver copies of all reports, findings, and records gathered or compiled in the investigation of a death “to the decedent’s next-of-kin, legal representative, or physicians who attended the decedent during the year before death, upon their written request for the release of documents.” Utah Code § 26-4-17(3). The medical examiner “shall maintain the confidentiality of the records which shall be released” pursuant to Utah Code § 26-4-17(3). Utah Code § 26-4-17(4). A record classified as “confidential” under the Utah Health Code “shall remain confidential, and be released according to the provisions of this title” notwithstanding Utah Code § 63G-2-310. Utah Code § 26-1-17.5(1).
4. After having reviewed the arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that pursuant to Utah Code § 26-4-17, the Department is required to maintain the confidentiality of the requested documents. Since access is limited by the Act, the documents are considered non-public records pursuant to Utah Code §§ 63G-2-201(3)(b) and -201(6).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is DENIED.
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 its 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 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 19th day of December 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NATE CARLISLE, SALT LAKE TRIBUNE, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 16-14
By this appeal, Petitioner, Nate Carlisle, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office
FACTS
On or about December 16, 2015, Mr. Carlisle, on behalf of the Salt Lake Tribune, made a records request to the Utah Attorney General’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”) requesting:
[A]ll documents related to any criminal investigations of Beaver County Sheriff Cameron Noel conducted in 2014 or 2015, including, but not necessarily limited to, police reports, witness statements, forensic reports, search warrant applications and returns, subpoenas and similar documents you may have received from other law enforcement agencies.
On or about December 30, 2015, Respondent denied Mr. Carlisle access to any records, citing Utah Code §§ 63G-2-305(10)(a), -10(b), and -10(c), as well as Utah Code §§ 63G-2-302(2)(d) and -302(1)(b). Mr. Carlisle appealed the decision, and after reviewing Mr. Carlisle’s records request, Parker Douglas, Chief of Staff and Federal Solicitor, upheld the denial to the records.
Mr. Carlisle filed an appeal with the State Records Committee (“Committee”). On April 14, 2016, the Committee held a hearing and heard oral arguments from the parties. During the deliberation phase of the hearing, a motion was made to review the disputed records in camera. When it was determined that the records were too numerous to review in their entirety during the hearing on this matter, the Committee voted unanimously to continue the hearing to a later date in order to allow sufficient time for Committee members to review the disputed records. Neither party objected to the continuance. Accordingly, IT IS ORDERED THAT:
ORDER
The hearing is CONTINUED to a later date. The records provided by Respondent to the Executive Secretary for the Committee, shall be secured at the State Archives Building in order to allow an in camera review by the Committee.
Entered this 25th day of April 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
REGINALD WILLIAMS, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 16-30
By this appeal, Petitioner, Reginald Williams, seeks access to records allegedly held by Respondent, Utah Department of Corrections.
FACTS
On or about March 29, 2016, Mr. Williams made a records request to Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Williams requested “[a]ll emails to or from UDC to or from the U.S. Attorney or any other person regarding [Mr. William's] 2-25-16 and 2-26-16 attorney visits."
On or about April 20, 2016, Jeralyn Zimmerman responded to Mr. Williams on behalf of Corrections. Redacted records were provided to Mr. Williams, with redactions made for information classified as "private" pursuant to Utah Code §63G-2-302(2)(d) or "protected" pursuant to Utah Code §§63G-2-305(11) and -305(13). Mr. Williams appealed the redactions, and on May 10, 2016, Corrections’ Deputy Director denied the appeal and affirmed the records classification for the redacted information.
Mr. Williams filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the records in camera on August 11, 2016, 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Records of a governmental entity’s security measures are not subject to GRAMA, and therefore, cannot be received by a requester through a GRAMA request. Utah Code § 63G-2-106.
3. Records, the disclosure of which would jeopardize the life or safety of an individual, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(11). Records, that if disclosed, would jeopardize the security or safety of a correctional facility, or records relating to 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 a governmental entity. Utah Code § 63G-2-305(13).
4. Records containing data on individuals, are private records if properly classified by a governmental entity and if disclosure would constitute a clearly unwarranted invasion of personal privacy. Utah Code § 63G-2-302(2)(d).
5. Corrections argued that decisions regarding the housing of inmates and the restrictions placed upon the inmates relate to security measures for the Gunnison Central Utah Correctional Facility (“Facility”), and should be left to the sound discretion of Corrections. Corrections also presented persuasive testimony that release of the disputed records would compromise the security and safety of the Facility and jeopardize the lives and safety of individuals at the Facility.
6. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, and reviewing the records in camera, the Committee finds that Corrections properly redacted the records, upholds Corrections’ records classifications as non-public pursuant to Utah Code §§ 63G-2-302(2)(d), -305(11) and -305(13), or as non-records pursuant to Utah Code § 63G-2-106.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Reginald Williams, is DENIED.
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 its 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 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 22nd day of August 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL WACH, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS. Respondent.
DECISION AND ORDER
Case No. 16-46
By this appeal, Petitioner, Paul Wach, seeks access to records held by Respondent, the Utah Department of Corrections.
FACTS
On August 11, 2016, the Records Bureau for the Utah Department of Corrections (“Corrections”) received a request for records by Mr. Wach pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Wach requested a copy of “Cautions” within Corrections’ offender database, where Corrections personnel can enter specific “cautions” about inmates housed by Corrections, assisting Corrections Officers in their day-to-day housing, and management of inmates. In a letter dated August 16, 2016, Mr. Wach was informed that his records request was being denied because the information was protected by GRAMA pursuant to Utah Code §§ 63G-2-305(11) and -305(13).
Mr. Wach filed an appeal of the denial to Mike Haddon, Deputy Director of Corrections. Mr. Haddon denied Mr. Wach’s appeal in a letter dated August 29, 2016, upholding the August 16, 2016, denial of the records request. Mr. Wach filed an appeal with the State Records Committee (“Committee”), and on November 11, 2016, the Committee held a hearing regarding Mr. Wach’s appeal. The Committee, having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the requested records in camera, 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 §63G-2-201(2). Records that are private, controlled, or protected under Utah Code §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Records the disclosure of which would jeopardize the life or safety of an individual are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(11). Additionally, records that if disclosed “would jeopardize the security or safety of a correctional facility” or relating to incarceration, treatment, probation, or parole “would interfere with the control and supervision of an offender’s incarceration, treatment, probation, or parole,” are also protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(13).
3. Deputy Warden Robert Powell from Corrections testified at the hearing that entries in the “Cautions” database are used by Corrections to evaluate and manage risks inmates may pose to other inmates within correctional facilities. Counsel for Corrections argued that release of this information would put inmates “at risk of victimization or retaliation.” Additionally, release of the information would allow inmates to know what Corrections considers to be potential threats, making it easier for inmates to manipulate security protocols in order to smuggle contraband into a facility, attempt escape from a facility, and/or harm others within a facility.
4. After having reviewed all arguments and evidence, and having reviewed the requested records in camera, the Committee finds that the records were properly classified by Corrections as protected records pursuant to Utah Code §§ 63G-2-305(11) and -305(13). The Committee is persuaded that release of the information contained in the records would jeopardize the life or safety of individuals, and jeopardize the security or safety of a correctional facility.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul Wach, is hereby DENIED.
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 its 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 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 22nd day of November 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UTAH RIVERS COUNCIL, Petitioner, v.
UTAH DIVISION OF WATER RESOURCES, Respondent.
DECISION AND ORDER
Case No. 17-13
By this appeal, Petitioner, the Utah Rivers Council, seeks access to records held by Respondent, the Utah Division of Water Resources (“Division”).
FACTS
In a letter dated November 7, 2016, Nick Schou, Conservation Director of the Utah Rivers Council (“URC”), made a request to the Division for records pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Schou requested “all 2015 water use data submitted to the [Division] by public water suppliers in Utah.” Eric Millis, Director of the Division, denied the request, stating that the “2015 water use and supply data will not be ready until the independent verification process is completed.”
In a letter dated January 4, 2017, Mr. Schou wrote to Mr. Millis asking “[w]hy is it that you cannot share your agency’s municipal water use data summaries with our organization so that we may also independently review them?” Mr. Schou then argued that he believed that “this request serves the public interest by providing transparency regarding the [Division’s] use of public water data and the future of Utah’s water resources.” Mr. Millis responded with a letter dated January 13, 2017, stating that there were “still issues with some of the data” received by the Division, and that since the data was not in a final form, the data should be protected as a “draft” pursuant to Utah Code § 63G-2-305(22).
On behalf of URC, Mr. Schou filed an appeal with the State Records Committee (“Committee”). On March 16, 2017, the Committee held a hearing where the parties were allowed to present their legal arguments. After considering all arguments by the parties and reviewing all written materials, the Committee 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 § 63G-2-201(2). Records that are private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Drafts are protected records if properly classified by a governmental entity and are not otherwise classified as public records. Utah Code § 63G-2-305(22).
3. During the Respondent’s testimony, it was discovered that the Division maintained a separate database of water usage information collected from multiple sources. Counsel for the Division argued that the raw water data that had been collected by the Division should be considered “draft” information because Utah Code § 73-10g-105(3)(c) requires the Division to “institute a process for the independent verification of the data” received by the Division. Counsel stated that the raw data is verified by the Division before being used in a final report that is made to the public, and therefore, the raw data cannot be relied upon prior to verification.
4. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the raw data collected by the Division is not a draft record pursuant to Utah Code § 63G-2-305(22). Even though the database containing the raw data consists of unverified data, the information within the database should still be considered a public record and not be protected as a draft record.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, the Utah Rivers Council is GRANTED.
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 its 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 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 27th day of March 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UTAH LEGAL CLINIC, Petitioner, v.
SALT LAKE CITY CORPORATION. Respondent.
DECISION AND ORDER
Case No. 16-20
By this appeal, Petitioner, the Utah Legal Clinic, on behalf of Trenton Mellen, seeks access to records allegedly held by Respondent, the Salt Lake City Corporation.
FACTS
On or about January 15, 2016, Sydney Mateus, a law clerk for Petitioner, made a records request to Salt Lake City Corporation (“Respondent”), pursuant to the Government Records Access and Management Act (“GRAMA”). The records request was for “[a]ny and all emails sent or received by” certain individuals since July 1, 2013, referencing Trenton Mellen and/or specific court case numbers. Respondent provided records to Petitioner, which included some redacted information considered by Respondent to be private or protected under GRAMA.
In a letter dated February 5, 2015, Petitioner filed an appeal with Jackie Biskupski, Mayor of Salt Lake City. The appeal stated that Respondent’s response was “incomplete” and failed to include non-protected records. In a letter dated March 4, 2016, Patrick Leary, Chief of Staff for Mayor Biskupski, stated that an additional 156 records previously classified as private or protected would now be provided to Petitioner. Mr. Leary added that “the remaining records that were classified as private or protected under GRAMA will not be provided” pursuant to Utah Code §§ 63G-2-302(1)(b), -305(18), and -305(25). Both parties agreed that the records are protected under Utah Code § 63G-2-305(18) and (25); however, the petitioner requested the Committee to use its weighing power to overrule the protected classification. Petition argued that in this instance there is a greater public interest in disclosing the records.
On April 1, 2016, Petitioner filed an appeal with the State Records Committee (“Committee”). On May 12, 2016, the Committee held a hearing and heard oral arguments from the parties. During the deliberation phase of the hearing, a motion was made by a Committee member to review the disputed records in camera. Because the requested records are voluminous, the Respondent had earlier obtained permission to bring only a representative sample of the records to the hearing. The Committee determined that it cannot exercise the weighing provision without reviewing the records in entirety. The Committee voted unanimously to continue the hearing to a later date in order to allow sufficient time for Committee members to review in camera all of the disputed records. Neither party objected to the continuance.
ORDER
Accordingly, IT IS ORDERED THAT the hearing is CONTINUED to a later date. Respondent shall provide the responsive records to allow an in camera review by the Committee members prior to the continued hearing date.
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 its 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 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 May 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARIAN SEAMONS, Petitioner, v.
TICABOO UTILITY IMPROVEMENT DISTRICT. Respondent.
DECISION AND ORDER
Case No. 16-35
By this appeal, Petitioner, Marian Seamons, seeks access to records allegedly held by Respondent, Ticaboo Utility Improvement District.
FACTS
During the month of April and May 2016, Ms. Seamons made multiple records requests to Ticaboo Utility Improvement District ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Seamons requested that the Respondent provide itemized billing statements and other records relating to the billing that occurred on lots in Ticaboo, Utah, that Ms. Seamons owns.
Respondent provided Ms. Seamons some records regarding audit and billing pertaining to Respondent and the lots listed under Ms. Seamons, but her other requests were denied on the basis that the Respondent had no records responsive to her request. Ms. Seamons appealed the denials to Respondent’s Chief Administrative Office and the Chairman of Respondent's Board of Trustees, Tom Hill. The denials were upheld pursuant to Utah Code § 63G-2-204(3)(b)(iii), in that the Respondent did not have any records responsive to Ms. Seamons’ request.
Ms. Seamons filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony on September 8, 2016, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In response to a records request, a governmental entity is not required to create a record, or “compile, format, manipulate, package, summarize, or tailor information.” Utah Code § 63G-2-201(8)(a)(i) & (ii).
2. Respondent provided testimony that it does not have the requested records regarding the historical billing that occurred on lots in Ticaboo, Utah that Ms. Seamons owns.
3. After reviewing all materials provided, and hearing testimony and oral arguments from the parties, the Committee finds Respondent’s arguments that it does not have records responsive to Ms. Seamons' records request persuasive. Accordingly, since a governmental entity is not required to create a record in response to a records request pursuant to Utah Code § 63G-2-201(8)(a)(i) & (ii), Respondent’s denial of Ms. Seamons' records request is affirmed.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is DENIED.
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 its 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 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 19th day of September 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DAVID LARSEN, Petitioner, v.
HEBER CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 16-51
By this appeal, Petitioner, David Larsen, seeks access to records allegedly held by Respondent, the Heber City Police Department.
FACTS
Mr. Larsen filed a records request via email pursuant to the Government Records Access and Management Act (“GRAMA”) to the Heber City Police Department (“Department”). Mr. Larsen requested the release of Department personnel records concerning a named police officer. When the Department did not provide all requested records, Mr. Larsen filed an appeal with the Mayor of Heber City.
The Heber City manager informed Mr. Larsen via email that the Mayor had failed to timely respond to his appeal, and according to Heber City Code § 4.16.030, failure to respond within five days was considered a denial of his appeal. Mr. Larsen filed an appeal with the State Records Committee on October 28, 2016. On December 8, 2016, at a hearing before the Committee the parties presented their legal arguments. After considering all written materials and the arguments by the parties, the Committee 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 § 63G-2-201(2). Records that are private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Records concerning a current or former government employee, including performance evaluations and personal status information such as race, religion, or disabilities, are private records if properly classified by a governmental entity, but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o). Utah Code § 63G-2-302(2)(a).
3. Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee are normally public if: (1) The disciplinary action has been completed and all time periods for administrative appeal have expired and; (2) The charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o).
4. Counsel for the Department argued that all records within a police officer’s personnel file should remain private, including a five-year-old letter of reprimand, which counsel stated was an internal corrective action (personal evaluation), that does not rise to the level of formal charges or disciplinary actions, as described in Utah Code § 63G-2-301(3)(o). Counsel also argued that the letter of reprimand was protected under Utah Code § 63G-2-305(25).
5. After having reviewed the arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that pursuant to Utah Code § 63G-2-301(3)(o), records concerning formal charges or disciplinary actions against the officer includes the letter of reprimand, and should be disclosed as a public record. However, other information in the officer’s personnel file was properly classified as a private record pursuant to Utah Code § 63G-2-302(2)(a), and should not be disclosed.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, David Larsen, is 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 its 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 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 19th day of December 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
GEORGE CHAPMAN, Petitioner, v.
SALT LAKE CITY CORPORATION. Respondent.
DECISION AND ORDER
Case No. 17-18
By this appeal, Petitioner, George Chapman, seeks access to records held by Respondent, the Salt Lake City Corporation.
FACTS
On January 30, 2017, Mr. Chapman filed a request for records from the Salt Lake City Corporation (“City”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Chapman requested the “Closed Executive Session Meeting Minutes of the SLC Council & RDA meetings that discussed homeless sites.” The City denied the request on February 3, 2017, pursuant to Utah Code §§ 63G-2-305(17), -305(32) and 52-4-206(5).
Mr. Chapman filed an appeal to the Chief Administrative Officer of the City. In a letter dated March 7, 2017, Patrick W. Leary denied the appeal writing that the “City recognizes the public interest in these Records. That interest, however, does not outweigh the City’s ongoing interest in protecting the Records.” Mr. Leary noted that the communications during the closed meeting included confidential advice from City attorneys and “even if the City were to redact the attorney-client communications from the recording, the resulting recording would likely be unintelligible.”
On April 4, 2017, Mr. Chapman filed an appeal with the State Records Committee (“Committee”). A hearing was held before the Committee on May 11, 2017, where the parties were allowed to present their legal arguments. After having reviewed the arguments submitted by the parties and having heard oral argument and testimony, the Committee now issues the following Decision and Order:
STATEMENT OF REASONS FOR DECISION
1. The Utah 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 private, controlled, or protected under Utah Code §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. The disclosure of a record to which access is governed or limited pursuant to another state statute is governed by the specific provisions of that statute insofar as GRAMA is not inconsistent with the statute. Utah Code § 63G-2-201(6).
3. Transcripts, minutes, or reports of the closed portion of a meeting of a public body are protected records if properly classified by a governmental entity except as provided in Utah Code § 52-4-206. Utah Code § 63G-2-305(32). Both a recording and written minutes of closed meetings are protected records under GRAMA “except that the records may be disclosed under a court order only as provided under Section 52-4-304.” Utah Code § 52-4-206(5).
4. In an action brought under the authority of the Open and Public Meetings Act (“OPMA”) to challenge the legality of a closed meeting held by a public body, the court shall review the recording or written minutes of the closed meeting in camera and decide the legality of the closed meeting. Utah Code § 52-4-304(1). If the judge determines that the public body did not violate Utah Code §§ 52-4-204, -205, or -206 regarding closed meetings, the judge shall dismiss the case without disclosing or revealing any information from the recording or minutes of the closed meeting. Utah Code § 52-4-304(2)(a). However, if the judge determines that the public body violated Utah Code §§ 52-4-204, -205, or -206 regarding closed meetings, the judge shall publicly disclose or reveal from the recording or minutes of the closed recording “all information about the portion of the meeting that was illegally closed.” Utah Code § 52-4-304(2)(b).
5. Additionally, a governmental entity shall disclose a record pursuant to the terms of a court order signed by a judge from a court of competent jurisdiction provided that: (1) The record deals with a matter in controversy over which the court has jurisdiction; (2) The court has considered the merits of the request for access to the record; (3) The court has considered and where appropriate, limited the requester’s use and further disclosure to protect certain enumerated interests; (4) The court considers whether the interests favoring access are greater than or equal to the interests favoring restriction of access; and (5) Where access is restricted by a rule, statue, or regulation referred to in Utah Code § 63G-2-201(3)(b), the court has authority independent of GRAMA to order disclosure. Utah Code § 63G-2-202(7) as referenced by Utah Code § 52-4-304(1).
6. The central question in the present case is whether the Committee has the authority to order the release of transcripts, minutes, or recordings of a public body that has claimed that it has properly closed its meeting pursuant to OPMA. Mr. Chapman argues that since his records request was made pursuant to GRAMA and was timely appealed to the Committee, the Committee has the ability to order the release of information properly classified as protected after applying the “weighing provision” found in Utah Code § 63G-2-403(11)(b). The City argues that OPMA, specifically Utah Code §§ 52-4-206 & -304, provides that closed meeting records may only be disclosed through a court order.
7. After having reviewed the written arguments of the parties, hearing testimony and arguments, and carefully reviewing the applicable statutes, the Committee finds that it does not have the authority to release the requested records pursuant to Utah Code § 52-4-206(5). According to statutory construction, words and phrases are to be construed according to the context and the approved usage of the language. Utah Code § 68-3-11. The use of the words “except” and “only” in Utah Code § 52-4-206(5) regarding the disclosure of records of a closed meeting by a court “as provided under Section 52-4-304,” combined with the court procedures outlined in Utah Code §§ 52-4-304 and 63G-2-202(7), shows a Legislative intent to limit disclosure of closed meeting records only through court action, and not through the State Records Committee. Although closed meeting records are considered protected records under GRAMA, the more specific procedure provided by OPMA regarding disclosure of records “only as provided under Section 52-4-304” prevails over the Committee’s general procedures found in Utah Code § 63G-2-403. If the Legislature intended to allow a dual track for accessing closed meeting records through both the courts and the Committee, the Legislature could have easily added enabling language to OPMA that referenced the Committee. Although the Committee is sympathetic that the issues raised by Mr. Chapman may indeed be of great public interest, the limiting language of Utah Code § 52-4-206(5) regarding disclosure of closed meeting records does not allow the Committee to have the authority to order release of those records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, George Chapman, is hereby DENIED.
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 its 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 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 22nd day of May 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
HARSHAD P. DESAI, Petitioner, v.
PANGUITCH CITY, UTAH. Respondent.
DECISION AND ORDER
Case No. 16-32
By this appeal, Petitioner, the Harshad P. Desai, seeks access to records allegedly held by Respondent, Utah County Commission.
FACTS
During the month of May 2016, Mr. Desai made multiple records requests to Panguitch City, Utah ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Desai requested that Respondent provide the education, experience, and résumés for the Mayor and Council Members, as well as for members of the Planning and Zoning Committee and the Panguitch City office staff. Respondent provided Mr. Desai some records regarding Panguitch City office staff members, but his other requests were denied on the basis Respondent had no records responsive to his request. Mr. Desai also made another records request for a record detailing the total population within a thirty mile radius of Panguitch City. This request was similarly denied because no document existed with this type of information.
Mr. Desai appealed the denials to Respondent’s City Manager, Lori Talbot, as well as to Respondent’s Mayor, Eric Houston. The denials were upheld on the basis that the requested records, outside of what had already been provided, did not exist, and that Respondent was not required to create a record. Mr. Desai filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony on August 11, 2016, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In response to a records request, a governmental entity is not required to create a record, or “compile, format, manipulate, package, summarize, or tailor information.” Utah Code § 63G-2-201(8)(a)(i) & (ii).
2. Respondent provided testimony that it does not have the requested records regarding the education, experience, and résumés for the Mayor and Council Members, as well as for members of the Planning and Zoning Committee. The Mayor and Council Members are elected officials who are not required to submit their education, experience, or résumés in order to be elected. Since members of the Planning and Zoning Committee serve as volunteers, Respondent does not possess these types of records. The Respondent also provided testimony that Panguitch City does not have a record detailing the population within a thirty-mile radius.
3. After reviewing all written materials, and hearing testimony and oral arguments from the parties, the Committee finds Respondent’s arguments that it does not have records responsive to Mr. Desai’s records request persuasive. Accordingly, since a governmental entity is not required to create a record in response to a records request pursuant to Utah Code § 63G-2-201(8)(a)(i) & (ii), Respondent’s denial of Mr. Desai’s records request is affirmed.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is DENIED.
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 its 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 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 22nd day of August 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NATE CARLISLE on behalf of SALT LAKE TRIBUNE, Petitioner, v.
UTAH COUNTY SHERIFF’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 16-49
By this appeal, Petitioner, Nate Carlisle, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah County Sheriff’s Office (“County Sheriff’s Office”).
FACTS
On April 16, 2016, Mr. Carlisle made a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Carlisle requested from the County Sheriff’s Office: (1) Any records of discipline of a police officer that would disclose information relating to a formal charge or disciplinary action against the employee that were sustained: and (2) All records relating to an internal or administrative investigation of the police officer related to allegations of witness tampering, retaliation against a witness, or obstruction of justice. In response to the request, the County Sheriff’s Office released some documents, but also redacted portions of documents claiming that the information should be protected.
In a letter dated May 23, 2016, Mr. Carlisle filed an appeal with the Utah County Commission (“Commission”), requesting a review of the documents to determine if they should be released unredacted. Mr. Larry A. Ellertson, Chair of the Commission, stated in a letter dated September 6, 2016, that employee personnel records are classified as private records pursuant to Utah Code § 63G-2-302(2)(a), and that none of the exceptions to this general classification as outlined by GRAMA applied to the requested records.
Mr. Carlisle filed an appeal of the Commission’s decision to the State Records Committee (“Committee”). The Committee held a hearing on December 8, 2016, regarding the appeal. The Committee having reviewed the submitted written materials, hearing oral arguments from the parties, and reviewing the disputed records in camera, 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 § 63G-2-201(2). Records that are private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Records concerning a current or former employee of a governmental entity that would disclose the individual’s home address, home telephone number, social security number, insurance coverage, marital status, or payroll deductions, are private records. Utah Code § 63G-2-302(1)(g). Records concerning a current or former government employee, including performance evaluations and personal status information such as race, religion, or disabilities, are private records if properly classified by a governmental entity, but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o). Utah Code § 63G-2-302(2)(a).
3. GRAMA provides that the Committee may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private, controlled, or protected “if the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). In order to consider the weighing of various interests under Utah Code § 63G-2-403(11), the Committee shall review the disputed records in camera. Utah Code § 63G-2-403(9)(a).
4. In Lawrence v. Utah Dept. of Pub. Safety, Case No. 120907748, 3rd Judicial Dist. (Aug, 21, 2013), Lawrence requested Internal Affairs investigative records regarding a trooper of the Utah Highway Patrol. The court held that despite the restrictions of Utah Code § 63G-2-302(2)(a), the records should be public, stating:
Investigative records addressing alleged violations of the public trust fall outside of [Utah Code § 63G-2-302(2)(a)] because they are not the same kind, class, character or nature as the specifically enumerated categories of sensitive personal information identified [under that statute]…
[T]here is no such unwarranted invasion of privacy in the circumstances presented here because the records will reveal whether public officials properly discharged their public responsibility to investigate and address allegation that law enforcement personnel violated a citizen’s constitutional rights…
[T]he public’s right to know the response of public officials charged with the responsibility of investigating alleged constitutional violations substantially exceeds any individual interests of those public officials or the interest of a Trooper charged with the responsibility protecting the safety and rights of the State’s citizens… [U]nrestricted public disclosure of the [Internal Affairs] investigative records will properly serve the public’s compelling interest.
5. After having considered the written and oral arguments of the parties and having reviewed the records in camera, the Committee finds that internal investigation records are not personnel records, and therefore cannot be classified as private based on Utah Code 63G-2-302(2)(a).
6. However, relying upon the reasoning in Lawrence, the Committee finds that the public interest in having access to investigative records of police officers alleging violations of the public trust, outweighs the interest favoring restriction of these records, even though the police officer has not received formal charges or disciplinary action or the charges have not been sustained. Because of the need for the public to have confidence in the actions of police officers “charged with the responsibility protecting the safety and rights of the State’s citizens,” unrestricted public disclosure of Internal Affairs investigative records “will properly serve the public’s compelling interest.” See, Lawrence. Accordingly, all records relating to an internal or administrative investigation of the named police officer related to allegations of witness tampering, retaliation against a witness, or obstruction of justice, are public records and shall be provided to Petitioner, subject to redactions of names of witnesses or victims considered to be a clearly unwarranted invasion of privacy pursuant to Utah Code § 63G-2-302(2)(d).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nate Carlisle, is GRANTED.
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 its 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 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 19th day of December 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EDWARD BERKOVICH, Petitioner, v.
MILLARD COUNTY ATTORNEY’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 17-16
By this appeal, Petitioner, Edward Berkovich, seeks access to records allegedly held by Respondent, Millard County.
FACTS
On January 5, 2017, Mr. Berkovich filed a request for records from the Millard County Attorney’s Office (“Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Berkovich stated that on October 21, 2015, an emergency meeting was held by the Utah Prosecution Council (“UPC”). Christine Stevens, an employee of the Office, attended that meeting in her capacity as a UPC member. Ms. Stevens took notes at the meeting on behalf of the UPC and sent her notes to Bob Church, Director of UPC. Mr. Berkovich requested a copy of any notes or meeting minutes taken by Ms. Stevens for the meeting.
In a letter dated February 1, 2017, Patrick S. Finlinson, Millard County Attorney, confirmed that Ms. Stevens had taken notes at the meeting and later prepared minutes from her notes which were later emailed to Mr. Church. Mr. Finlinson also stated that Ms. Stevens’ hand written notes had been destroyed “soon after preparing the minutes.” Mr. Finlinson further stated that Millard County did not have a copy of Ms. Stevens’ draft meeting minutes because Millard County’s email system had been recently upgraded and that emails not flagged for retention were deleted during the process including Ms. Stevens’ email to Mr. Church. Accordingly, the Office could not provide Mr. Berkovich with any of the requested records.
In a letter dated March 3, 2017, Mr. Berkovich filed an appeal to James Withers, Chairman of the Millard County Commission. Mr. Berkovich requested that Ms. Stevens’ computer be searched to determine if the minutes were saved on the computer prior to being attached to the email sent to Mr. Church. After not receiving a timely response from Millard County, Mr. Berkovich filed an appeal with the State Records Committee (“Committee”). On April 13, 2017, a hearing was before the Committee where the parties were allowed to present their legal arguments. After having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, the Committee now issues the following Decision and Order:
STATEMENT OF REASONS FOR DECISION
1. The Utah 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 private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Pending minutes, approved minutes, and a recording of a public meeting are public records under GRAMA. Utah Code § 52-4-203(4)(b). Recordings and written minutes of closed meetings are protected records under GRAMA, except that the records may be disclosed under a court order only as provided under Utah Code § 52-4-304. Utah Code § 52-4-206(5).
3. Mr. Finlinson, Millard County Attorney, stated that after the initial denial to Mr. Berkovich, he asked Ms. Stevens to search for the requested record. Mr. Finlinson said that Ms. Stevens found the document attached to an email she had sent to UPC from her personal email account. Ms. Stevens thereafter gave the document to Mr. Finlinson who then held the record on behalf of the Office. Mr. Finlinson brought a printed copy of the document to the hearing and presented it to the Committee.
4. After reviewing the arguments of the parties and having reviewed the requested document in camera, the Committee determined that by virtue of obtaining the record by Millard County in response to an open records request, it is the County’s record. Additionally, the Committee finds that the record is a public record because it should be considered “pending minutes” of the UPC meeting pursuant to Utah Code § 52-4-203(4)(b). However, a review of the record also shows that it contains minutes of a closed portion of the UPC meeting. Accordingly, although Mr. Berkovich is entitled to receive a copy of the pending minutes, all minutes regarding the closed portion of the UPC meeting must be redacted prior to release as required by Utah Code §§ 52-4-206(5) and 63G-2-308.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Edward Berkovich, 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 its 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 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 24th day of April 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RANDY M. ANDRUS, Petitioner, v.
UNIFIED POLICE DEPARTMENT, Respondent.
ORDER OF CONTINUANCE
Case No. 17-24
By this appeal, Petitioner, Randy M. Andrus, seeks access to records held by Respondent, the Unified Police Department. On July 13, 2017, the State Records Committee (“Committee”) held a hearing regarding the appeal. Both parties requested a continuance of the appeal in order to allow both parties to have an opportunity to reach a settlement agreement regarding the matter. After allowing both parties to address the Committee, the Committee unanimously voted to grant the request for a continuance and reschedule the matter at the next available hearing date.
ORDER
THEREFORE, IT IS ORDERED THAT the hearing is CONTINUED to a later date.
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.
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 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 25th day of July 2017.
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chairperson pro tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SIPRUT PC, Petitioner, v.
UTAH STATE TAX COMMISSION. Respondent.
DECISION AND ORDER
Case No. 16-47
By this appeal, Petitioner, SIPRUT PC (“SIPRUT”), a law firm representing a group of individuals involved in a class action lawsuit against software provider Intuit, Inc., seeks access to records allegedly held by Respondent, the Utah State Tax Commission (“Commission”).
FACTS
In a letter transmitted by email dated April 18, 2016, Mr. John S. Marrese, an attorney with SIPRUT, made a records request to the Commission pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Marrese wrote that he was seeking Commission documents involving Intuit, Inc. (“Intuit”), Intuit’s TurboTax Tax Preparation Software (“TurboTax”), and Santa Barbara Tax Products Group, LLC (“SBTPG”) “related to cybersecurity, fraudulent or suspicious tax returns filed” with the Commission. Ms. Dolores Furniss, the Commission’s Disclosure Officer, responded on June 22, 2016, denying the request finding that: (1) The Commission could not locate any written communications with Intuit specific to the request; (2) Documents, tax returns, and/or other communications provided by the Commission to the United States Internal Revenue Service (“IRS”) or any state taxing authority related to any alleged fraudulent or suspicious tax returns are classified as private records; and (3) The Commission had no documents relating to any investigations of Intuit and/or SBTPG involving cybersecurity or the filing of fraudulent/suspicious tax returns.
Mr. Marrese on behalf of SIPRUT filed an appeal with Mr. Barry C. Conover, Executive Director of the Commission on or about July 21, 2016. In a letter dated August 2, 2016, Mr. Conover affirmed the decision of the Disclosure Officer, finding that no written communications existed and that the “tax returns that you requested are classified as ‘private’ under” GRAMA. In a letter dated August 30, 2016, Mr. Richard S. Wilson, an attorney with SIPRUT, filed an appeal with the State Records Committee (“Committee”). On November 10, 2016, a hearing was before the Committee where the parties were allowed to present their legal arguments.
After considering all written materials and the arguments by the parties, the Committee now 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 private, controlled, or protected under Utah Code §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Records and audit work papers that identify audit, collection, and operational procedures and methods used by the Commission are protected records if properly classified by the Commission and disclosure would interfere with audits or collections. Utah Code § 63G-2-305(15).
3. The following records are private if properly classified by a governmental entity: (1) Records of independent state agencies if the disclosure of the records would conflict with the fiduciary obligations of the agency; (2) Other records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy; and (3) Records provided by the United States or by a government entity outside the state that are given with the requirement that the records be managed as private records, if the providing entity states in writing that the record would not be subject to public disclosure if retained by it. Utah Code § 63G-2-302(2)(c), (d), and (e).
4. Ms. Furniss testified at the hearing that in January 2015, the Commission discovered that some fraudulent returns had been filed with the Commission electronically. Ms. Furniss stated that immediate action was taken to suspend all tax refunds until the fraudulent returns had been identified and isolated, and no written communications with Intuit and the IRS existed because all contact occurred with them either by telephone or in person. Ms. Furniss also stated that no written records were created during the investigation into the fraudulent returns.
5. After having reviewed the arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that any records responsive to SIPRUT’s records request possessed by the Commission are either protected records pursuant to Utah Code § 63G-2-305(15) or private records pursuant to Utah Code § 63G-2-302(2)(c), (d), or (e). The Committee also finds Ms. Furniss’ testimony concerning the non-existence of records related to the investigation of fraudulent tax returns by the Commission to be credible.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, SIPRUT, PC, is DENIED.
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 its 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 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 22nd day of November 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KARL DAVIS on behalf of SHORE LODGE ESTATES HOA, Petitioner, v.
GARDEN CITY. Respondent.
DECISION AND ORDER
Case No. 17-05
By this appeal, Petitioner, Karl Davis on behalf of Shore Lodge Estates HOA, seeks access to records allegedly held by Respondent, Garden City.
FACTS
In a records request form dated November 3, 2016, Mr. Davis, a board member of the Shore Lodge Estates HOA, made a request for records from Garden City (“City”) pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Davis requested records showing: (1) The amount spent on litigation against Shore Lodge Estates; (2) The source of the funding for the litigation; (3) The projected cost of an eminent domain action against Shore Lodge Estates, and (4) The source of funds for the cost of an eminent domain action.
In a letter dated November 17, 2016, an attorney representing the City stated that Request #1 was being denied because the documents were protected by the attorney-client privilege, and also stated that the City could not locate any documents in response to Requests #2, #3, and #4. The attorney further stated that Mr. Davis would be billed $22.43 for the cost incurred by the City responding to the records request.
Mr. Davis filed an appeal and requested a fee waiver for the $22.43 charge. City Mayor John Spuhler issued a decision dated December 16, 2016, affirming the denial of Request #1, noting that Request #2, #3, and #4 “is not memorialized in a record,” and denying Mr. Davis’ request for a fee waiver. On December 16, 2016, Mr. Davis on behalf of Shore Lodge Estates HOA, filed an appeal with the State Records Committee (“Committee”). On February 9, 2017, the Committee held a hearing regarding the appeal. The Committee, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Utah 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17).
3. In response to a request for a record pursuant to GRAMA, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
4. Counsel for the City argued that for Request #1, the billing records showing how much the City spent in litigation with Shore Lodge Estates should be considered protected records because they are subject to the attorney client privilege pursuant to Utah Code § 63G-2-305(17).
5. The attorney client privilege protects information given by a client to an attorney that is necessary to obtain informed legal advice, which might not have been made absent the privilege. S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 643 ¶ 33, 200 P.3d 643, 654 (“SUWA”), following Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990). In order to rely upon the attorney client privilege, a party must establish: (1) An attorney client relationship; (2) The transfer of confidential information; and (3) The purpose of the transfer was to obtain legal advice. SUWA, 2008 UT 643, ¶33, 200 P.3d at 654.
6. The Committee has previously held that legal invoices between a governmental entity and a private law firm are not protected by the attorney client privilege. See, Cedar Hills Citizens for Responsible Gov. v. Cedar Hills, State Records Committee Case No. 13-02 (Feb, 25, 2013); and Johnson v. Salt Lake Dept. of Pub. Util., State Records Committee Case No. 09-11 (Aug. 24, 2009). Accordingly, the Committee finds that the records for Request #1 are public subject to redaction of any information that is considered to be protected by the attorney client privilege as defined by the Utah Supreme Court in SUWA. Information concerning the amount charged and hours worked by the firm on behalf of the City should not be considered “confidential information” or “legal advice.”
7. Counsel for the City argued that records responsive to Request #2, #3, and #4 do not exist. The Committee finds the City’s arguments that it is not required to create records to respond to Mr. Davis’ Request #2, #3, and #4 persuasive, and finds that the City is not required to produce documents in response to these requests.
8. In the letter dated November 17, 2016, the City charged Mr. Davis $22.43, claiming it was the City’s “cost incurred in responding to the GRAMA request.” However, the City did not produce any documents in response to Mr. Davis’ records request, but nonetheless charged him for his records request. Mr. Davis request for a fee waiver was denied by the City on December 16, 2016.
9. Utah Code § 63G-2-203(1) allows a governmental entity to charge a reasonable fee to cover the governmental entity’s “actual cost of providing a record.” In the present case, even though the City had not provided a record, it still charged Mr. Davis a fee.
10. The adjudicative body hearing an appeal by a person who believes that there has been an unreasonable denial of a fee waiver “shall review the fee waiver de novo” but shall also consider the governmental entity’s denial of the fee waiver. Utah Code § 63G-2-203(6)(b)(i). Considering the fact that GRAMA only allows a governmental entity to charge a reasonable fee for the “actual cost of providing a record,” and the City did not actually provide a record, the Committee finds that the City’s denial of Mr. Davis’ request for a fee waiver of $22.43 was an unreasonable denial and it is accordingly reversed.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Karl Davis, 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 its 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 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 21st day of February 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANDREW BECKER, Petitioner, v.
WASHINGTON COUNTY SHERIFF’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 17-15
By this appeal, Petitioner, Andrew Becker, seeks access to records held by Respondent, the Washington County Sheriff’s Office.
FACTS
In a letter dated January 3, 2017, Nicole Loe from the law office Schatz Anderson & Associates, filed a request for records on behalf of Mr. Becker from the Washington County Sheriff’s Office (“Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Loe requested copies of “any and all police reports” associated with an incident involving Mr. Becker and the Office occurring on December 30, 2016. Ms. Loe also requested any “audio and video recordings” from any officer involved in the incident. On January 18, 2017, the records officer for the Office granted in part and denied in part the records request, granting access to private records where Mr. Becker was the subject of the record, but denying access to records that had been classified as protected records.
In a letter dated January 24, 2017, Richard Jorgensen, an attorney from the law office Schatz Anderson & Associates, filed an appeal on behalf of Mr. Becker with Sheriff Cory Pulsipher. The Office granted in part and denied in part the appeal, finding that some of the records could not be disclosed because an “investigation is ongoing.” Ms. Loe and the law office of Schatz Anderson and Associates filed an appeal on behalf of Mr. Becker with the State Records Committee (“Committee”). On April 13, 2017, a hearing was before the Committee where the parties were allowed to present their legal arguments. After having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed one of the disputed records in camera, the Committee now issues the following Decision and Order:
STATEMENT OF REASONS FOR DECISION
1. The Utah 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Initial contact reports as defined by Utah Code § 63G-2-103(14), are normally public. Utah Code § 63G-2-301(3)(g). DUI reports are generally prepared immediately following the incident and while the information is fresh in the reporting officer’s experience, and “clearly includes the type of information reflected in the statutory definition” of an initial contact report. Utah Dept. of Public Safety v. State Records Comm., 3rd Judicial Dist. Case No. 100904439 (June 17, 2010). Therefore generally, DUI reports are public records. Id. The Committee finds that the DUI report in the present case should be released to Mr. Becker as a public record.
3. Counsel for the Office argued that video showing the inside of a police station where blood is drawn from a person, is a protected record because records relating to incarceration or treatment of an offender would interfere with the control and supervision of an offender’s incarceration, treatment, probation, or parole pursuant to Utah Code § 63G-2-305(13). However, after reviewing the video in camera, the Committee was unconvinced that the release of the video would interfere with the control or supervision of an offender. Accordingly, the Committee found that the video should be classified as a private record pursuant to Utah Code § 63G-2-302(2)(d).
4. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
5. A second video responsive to the records request, was a police officer’s body camera video which included images of a passenger inside Mr. Becker’s vehicle. Counsel for the Office argued that release of the video unredacted would constitute a clearly unwarranted invasion of personal privacy of Mr. Becker’s passenger. The Committee agrees with the Office, finding that the video was properly classified as a private record pursuant to Utah Code § 63G-2-302(2)(d), and therefore, properly redacted.
6. If the Office could not provide an unredacted copy of the second video, Mr. Becker requested that the Office waive the cost of redacting the video. A governmental entity “may fulfill a record request” without charge and is encouraged to do so when it determines that: (1) The individual requesting the record is the subject of the record; or (2) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(b) & (c).
7. Under GRAMA, the discretion for granting a fee waiver is essentially left to the governmental entity providing the record. The standard of review for the Committee is to determine whether the governmental entity’s decision denying a request for a fee waiver was an “unreasonable denial of a fee waiver.” See, Utah Code § 63G-2-203(6)(a). After reviewing arguments from the parties, the Committee finds that the denial of Mr. Becker’s request for a fee waiver was not an unreasonable denial by the Office.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Andrew Becker, 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 its 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 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 24th day of April 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EDGARDO MATA, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 17-22
By this appeal, Petitioner, Edgardo Mata, seeks access to records held by Respondent, the Utah Department of Corrections (“Corrections”).
FACTS
On a form dated March 30, 2017, and received by Corrections on April 7, 2017, Mr. Mata requested records from Corrections pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Mata requested a copy of Corrections’ “O-Track entry” that provides a description of tattoos related to Mr. Mata. Mr. Mata’s request and subsequent appeal were denied by Corrections pursuant to Utah Code § 63G-2-305(11) & (13).
On May 9, 2017, Mr. Mata filed an appeal with the State Records Committee (“Committee”). A hearing was held before the Committee on July 13, 2017, where the parties were allowed to present their legal arguments. During the hearing, counsel for Corrections stated that due to recent circumstances, Corrections would now be willing to give Mr. Mata redacted copies of the before and after screen shots reflecting the changes in the O-Track database regarding Mr. Mata’s tattoos. Mr. Mata thereafter stated during the hearing that receipt of the redacted copies from Corrections would satisfy his records request. After having reviewed the disputed records in camera, the Committee finds that disclosure of the redacted records would be a satisfactory settlement of the controversy between the parties.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Edgardo Mata, is hereby GRANTED as mutually agreed upon by the parties.
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 its 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 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 25th day of July 2017.
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chairperson pro tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 17-17
By this appeal, Petitioner Paul Amann, seeks access to records held by Respondent, the Utah Attorney General’s Office (“AG’s Office”).
FACTS
On February 27, 2017, Mr. Amann sent an email to the AG’s Office requesting records pursuant to the Utah Government Records Access and Management Act (“GRAMA”). On March 20, 2017, Mr. Amann sent an email to Attorney General Sean Reyes’ office email account which included an email attachment titled “GRAMA appeal to Reyes.pdf.” On March 31, 2017, Mr. Amann filed an appeal with the State Records Committee (“Committee”). Subsequent to the appeal being filed with the Committee, the AG’s Office’s Government Records Counsel Lonny Pehrson sent an email on April 3, 2017, to Mr. Amann apologizing for the miscommunication related to his records request stating that he was “completely unaware of your 2/27/17 requests prior to receiving your SRC appeal.” Mr. Pehrson added that the AG’s Office “intends to review and respond to your requests as quickly as possible” but “this will obviously require some time.” Based upon Mr. Amann’s March 31, 2017, appeal to the Committee, the Committee held a hearing on May 11, 2017, where the parties presented their arguments. After considering the arguments, reviewing all written materials, and reviewing some of the records in camera, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1).
2. A person making a request for a record shall submit the request to the governmental entity that prepares, owns, or retains the record. Utah Code § 63G-2-204(2)(a). After receiving a request for a record, a governmental entity shall as soon as reasonably possible, but no later than 10 business days after receiving a written request: (1) Approve the request and provide a copy of the record; (2) Deny the request in accordance with the procedures and requirements of Utah Code § 63G-2-205; (3) Notify the requester that it does not maintain the record requested and provide, if known, the name and address of the governmental entity that does maintain the record; or (4) Notify the requester that because of extraordinary circumstances, it cannot immediately approve or deny the request. Utah Code § 63G-2-204(3)(b).
3. The first issue before the Committee is whether the Committee has jurisdiction to consider the present matter. If the governmental entity fails to provide the requested records or issue a denial within the specified time period, that failure is considered the equivalent of a determination denying access to the record. Utah Code § 63G-2-204(8). If on appeal, the chief administrative officer fails to make a timely decision on an appeal of an access denial, the failure is the equivalent of a decision affirming the access denial. Utah Code § 63G-2-401(5)(b)(i). An appeal may be filed with the executive secretary of the Committee: (1) No later than 30 days after the date of issuance of the decision being appealed; or (2) 45 days after the day on which the record request is made if the circumstances described in Utah Code § 63G-2-401(1)(b) occur and the chief administrative officer fails to make a decision under Utah Code § 63G-2-401. Utah Code § 63G-2-403(1)(a) and (b).
4. Mr. Amann filed his GRAMA request on February 27, 2017, filed his appeal with Attorney General Sean Reyes on March 20, 2017, and then filed his appeal with the Committee’s executive secretary on March 31, 2017. The AG’s Office’s failure to respond to Mr. Amann’s initial GRAMA requests, his timely appeal of the equivalent denial, and his timely appeal to the Committee’s executive secretary of the second equivalent denial, complied with the statutory requirements of GRAMA. Accordingly, the Committee finds that it has the jurisdiction to consider the merits of the present case.
5. The second issue is whether “extraordinary circumstances” exist allowing the AG’s Office to have additional time to respond to Mr. Amann’s records requests. The AG’s Office presented testimony, affidavit evidence, and copies of emails, showing that the initial failure to respond to Mr. Amann in a timely manner was because of an “apparent technical problems with [their] email.” According to Mr. Pehrson, Mr. Amann’s email “was identified by Google as spam and sent to a spam box where it was eventually automatically deleted unread.” Mr. Pehrson further stated that since learning of Mr. Amann’s requests, the AG’s Office has been attempting to respond to his requests, but have only been able to complete seven of the 56 records requests at the time of the hearing. For the remaining 49 requests, Mr. Pehrson has requested to have additional time to respond to the requests, claiming that “extraordinary circumstances” exist allowing the AG’s Office to respond to the requests outside of GRAMA’s statutory time requirements.
6. After receiving a written request for a record, a governmental entity may notify the requester that because of “extraordinary circumstances,” it cannot immediately approve or deny the request. Utah Code § 63G-2-204(3)(b)(iv). “Extraordinary circumstances” is defined by GRAMA to include a request that is voluminous in quantity of records or when the requester is seeking a substantial number of records in requests filed within five working days of each other. Utah Code § 63G-2-204(5)(c).
7. For claims of extraordinary circumstances pursuant to Utah Code § 63G-2-204(5)(c), the governmental entity shall “complete the work and disclose those records that the requester is entitled to inspect as soon as reasonably possible.” Utah Code § 63G-2-204(6)(c)(iii). However, the governmental entity must also provide the requester with an estimate of the amount of time it will take to finish the work required to respond to the request. Utah Code § 63G-2-204(6)(c)(ii).
8. If a governmental entity claims extraordinary circumstances and the requester believes the extraordinary circumstances do not exist, the requester may appeal the governmental entity’s claim of extraordinary circumstances. Utah Code § 63G-2-401(1)(b).
9. Mr. Pehrson stated extraordinary circumstances existed for the AG’s Office to respond to Mr. Amann’s records request because he made 56 separate records requests and he is seeking a substantial number of records. Mr. Amann disagreed with the AG’s Office’s claim of extraordinary circumstances, and instead requested that the Committee order the AG’s Office to provide him with all of the requested records.
10. After having reviewed the written materials, exhibits, the arguments of the parties, and the testimony presented at the hearing, the Committee finds that “extraordinary circumstances” exist allowing the AG’s Office to have more time to respond to Mr. Amann’s records requests. The Committee is persuaded by the testimony presented that Mr. Amann’s remaining 49 records requests will require additional time for the AG’s Office to provide the voluminous quantity of records. Additionally, a review of the remaining 49 records requests show that they are not simple records requests and fulfilling his requests will require administrative resources greater than the 10 business days allowed by GRAMA. Further, when considering all of the circumstances of the present case, it would be improper for the Committee to order the AG’s Office to provide records to Mr. Amann even though the AG’s Office has not had the opportunity to review and determine whether the records should be classified as public or non-public records. Such an order could make available to the public a record that should have been classified as a non-public record.
11. The third issue is whether the AG’s Office has properly responded to Mr. Amann’s first seven records requests. The Committee finds that all documents responsive to the seven records requests (Bates Stamped 2A, 2B, 2C, 2D, 2E, 2F & 2G) have been provided to Mr. Amann. Additionally, after having reviewed the document in camera, the Committee finds that the redactions made by the AG’s office for Document 2A were proper pursuant to Utah Code § 63G-2-302(2)(d) (data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner Paul Amann is DENIED.
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 its 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 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 22nd day of May 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DAVID LARSEN, Petitioner, v.
HEBER CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 17-42
By this appeal, Petitioner, David Larsen, seeks access to records allegedly held by Respondents, Heber City Police Department.
FACTS
On or about July 31, 2017, Mr. Larsen made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Larsen requested a multi-media copy of videotaped footage from the Police Department’s lobby area. In an email sent on August 10, 2017, Mr. Larsen filed an appeal of the $30.00 fee for multimedia copying, stating that he “would respectfully appeal any Fee’s asked of Heber City” associated with providing the video footage. A letter dated August 14, 2017, from the Heber City Recorder, confirmed that Mr. Larsen’s request for video footage had been approved and he could make arrangements with a police officer to view the video footage; however, no response was sent by Respondent’s chief administrative officer to Mr. Larsen’s request for a fee waiver.
Mr. Larsen filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 9, 2017, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). However, a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Additionally, a governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that: (1) Releasing the record primarily benefits the public; (2) The requester is the subject of the record; or (3) The requester’s legal rights are directly implicated by the information on the record and the requester is impecunious. See Utah Code § 63G-2-203(4)(a-c).
2. In the present case, Respondent notified Mr. Larsen that there was a fee for receiving a multi-media copy of the record. Respondent noted that if Mr. Larsen did not wish to pay the fee, he had the option of reviewing the record free of charge in the presence of a police officer as noted in the August 14, 2017, letter from the Heber City Recorder. Mr. Larsen then would have the option of making his own video recording of the record with his own video recording device.
3. After hearing testimony and reviewing the parties' arguments, the Committee finds that the denial of Mr. Larsen’s request for a fee waiver was not an unreasonable denial. If Mr. Larsen does not want to pay for the fee, Mr. Larsen has the option of reviewing and video recording the record free of charge.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, David Larsen, is DENIED.
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 its 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 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 21st day of November 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JOHN TILLEMAN, Petitioner, v.
OGDEN CITY, Respondent.
DECISION AND ORDER
Case No. 18-09
By this appeal, Petitioner, John Tilleman, seeks access to records allegedly held by Respondent, Ogden City.
FACTS
On June 26, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to Respondent. Petitioner sent numerous pages of information to Respondent and in such information, approximately 34 paragraphs appeared to be separate requests for documents.
After receiving the request, Respondent attempted to determine what records Petitioner had already received from a separate entity addressed in the request and tried to further determine if there was a way to narrow down the request.
On or about August 28, 2017, Petitioner appealed the Respondent’s alleged non-response to the Ogden City Chief Administrative Office (“CAO”) and on October 10, 2017, Respondent confirmed that Petitioner had already been provided a number of records and was informed that no additional witness statements were available other than what was provided. On or about November 22, 2017, the CAO affirmed the Respondent’s denial to provide additional witness statements. The Petitioner subsequently appealed the partial denial of his request to the Ogden City Records Review Board ("Board") on November 13, 2017. The Board issued a decision affirming the partial denial of the Petitioner's request on December 5, 2017.
Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on February 8, 2018 now 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. Records created or maintained for criminal enforcement purposes are protected records not subject to disclosure if properly classified by a governmental entity if release of the records: (1) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source; or (2) Reasonably could be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts. Utah Code § 63G-2-305(10)(d) & (e).
3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
4. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i). Based upon the written and oral arguments presented by Respondent, the Committee is convinced that Respondent does not possess any records responsive to Petitioner’s request numbers 3, 5, 6, 7, 9-12, 15-19, 21-23, and 25-29.
5. Respondent argued that some of the records responsive to Petitioner’s records request should be classified as protected records pursuant to Utah Code § 63G-2-305(10)(d) & (e), and/or private records pursuant to Utah Code § 63G-2-302(2)(d). Respondent claimed that the records involved records generated by a police investigation which should remain non-public because the records either: (1) Disclosed information regarding the investigation and/or (2) Disclosed personal data of individuals related to the investigation.
6. Respondent brought the records that were responsive to Petitioner’s records request that had not been released to the Petitioner, and the Committee reviewed the records in camera. After having reviewed the records and considering the arguments of the parties, the Committee finds that Petitioner’s request numbers 2, 8, 14, 31, and 34 were properly classified as non-public records pursuant to Utah Code §§ 63G-2-302(d) & -305(10)(d) & (e). The Committee also found that Petitioner’s request numbers 20, 24, and 33 should be considered public records and released to Petitioner. The Committee further found that Petitioner’s request numbers 4, 13, and 32, may be released as public records and released to Petitioner after redactions are made for information contained within the records that is non-public pursuant to Utah Code §§ 63G-2-302(d) & -305(10)(d) & (e). See, Utah Code § 63G-2-308.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, John Tilleman, is 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 its 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 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 20th day of February 2018.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JEREMY FLYGARE, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 18-22
By this appeal, Petitioner, Jeremy Flygare seeks access to records allegedly held by Respondent, the Utah Department of Corrections.
FACTS
On February 21, 2018, Petitioner made a records request to the Utah Department of Corrections ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested “[a]ll records referencing [his] involvement in SOTP and Resolve including reports, summaries, test results, interview notes, meeting minutes, e-mails, and [sic] statements concerning [him].”
Petitioner’s request was initially rejected by Respondent, based upon a finding that Petitioner was not indigent and that his request would not be processed without an attached Money Transfer as required by Utah Admin. Code R.251-111-4(2). In a letter dated March 12, 2018, Petitioner appealed the rejection to Respondent’s Deputy Director, Mike Haddon, claiming that “[f]ailure to release these records constitutes obstruction of justice.” However, Petitioner did include a Money Transfer Form in his appeal.
On or about March 23, 2018, Respondent provided 24 pages of responsive records constituting of 11 different records. Petitioner believed that he had not received all of the records responsive to his records request, so an appeal was filed with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on July 12, 2018, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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, subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1).
2. Notwithstanding any other provision in GRAMA, 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(9)(a). Utah Code § 63G-2-201(9)(a) does not apply to: (1) The first five record requests submitted to the governmental entity 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 the incarcerated individual. Utah Code § 63G-2-201(9)(b).
3. Respondent argued that it was not required to provide more records to Petitioner because he “is an individual who is confined in a correctional facility following his conviction.” At the time of his records request, Petitioner was an inmate at the Utah State Prison. At the time of the Committee’s hearing, Petitioner was housed at the Bonneville Community Correctional Center. Accordingly, at both the time of his request and at the time of his appeal, Respondent argued that Petitioner qualified as an individual housed in a correctional facility.
4. Counsel for Respondent also argued that Petitioner’s records request should not be construed as a single records request, allowing Petitioner to circumvent the intention of five records requests limitation of Utah Code § 63G-2-201(9)(a) by “attempting to pack all of the records he desires onto a single request.” Counsel noted that Petitioner requested “a voluminous number of records, enough that [Petitioner’s] appeal to the Committee consists of six single-spaced pages, the majority of which is a list of the records [Petitioner] believes he should have received.”
5. Petitioner argued at his hearing that since he was at a nonsecure facility (the Bonneville Community Correctional Center), he should not be considered an “individual who is confined in a jail or other correctional facility” pursuant to Utah Code § 63G-2-201(9)(a).
6. Although “correctional facility” is not defined in GRAMA, it is defined elsewhere in the Utah Code. Utah Code § 64-13-1(3) defines “Correctional Facility” to mean “any facility operated to house offenders, either in a secure or nonsecure setting” by Respondent or under a contract with Respondent (emphasis added). Utah Code § 64-13-14.5(1)(c) states that Respondent was house as an inmate in a “nonsecure community correctional center” operated by Respondent under certain circumstances. Counsel for Respondent argued that the Bonneville Community Correctional Center was such a facility as describe in Utah Code 64-13-14.5(1)(c), but still would be considered a “correctional facility” under Utah Code §§ 63G-2-201(9)(a) and -64-13-1(3).
7. After having considered the written and oral arguments of the parties and having reviewed the applicable statutes within the Utah Code, the Committee finds that Petitioner is an inmate confined in a correctional facility following his conviction both at the time of his initial records request and at the time of his appeal before the Committee. Accordingly, the Committee finds that Respondent was not required to respond or provide a record to Petitioner pursuant to Utah Code § 63G-2-201(9)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jeremy Flygare is DENIED.
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.
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).
Entered this 23rd day of July 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MOLLY MARCELLO, on behalf of THE TIMES-INDEPENDENT Petitioner, v.
MOAB CITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 17-37
By this appeal, Petitioner, Molly Marcello, on behalf of The Times-Independent, seeks access to records held by Respondent, Moab City Police Department.
FACTS
On or about July 3, 2017, Ms. Marcello made a records request, pursuant to the Government Records Access and Management Act (“GRAMA”). She requested, “[a]ny/all formal complaints filed with the Moab City Police Department or Moab City regarding” a former Moab police officer “during his tenure with the department.” On July 17, 2017, Respondent denied the request pursuant to Utah Code § 63G-2-302(2)(a), and on July 20, 2017, Ms. Marcello appealed the denial. Thereafter on July 25, 2017, Moab City affirmed the classification as private and denied the request.
Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties, reviewing the records in camera, and carefully considering the requested relief 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. Records concerning a current or former government employee, including performance evaluations and personal status information such as race, religion, or disabilities, are private records if properly classified by a governmental entity, but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o). Utah Code § 63G-2-302(2)(a). Additionally, records containing data on individuals if disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d). However, records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee are normally public if: (1) The disciplinary action has been completed and all time periods for administrative appeals have expired; and (2) The charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o).
3. The present appeal is somewhat similar to Lawrence v. Utah Dept. of Pub. Safety, Case No. 120907748, 3rd Judicial Dist. (Aug. 21, 2013). In Lawrence, Internal Affairs investigative records were requested regarding a trooper of the Utah Highway Patrol. The court held that despite the restrictions of Utah Code § 63G-2-302(2)(a), the records should be public, stating:
Investigative records addressing alleged violations of the public trust fall outside of [Utah Code § 63G-2-302(2)(a)] because they are not the same kind, class, character or nature as the specifically enumerated categories of sensitive personal information identified [under that statute]…
[T]here is no such unwarranted invasion of privacy in the circumstances presented here because the records will reveal whether public officials properly discharged their public responsibility to investigate and address allegation that law enforcement personnel violated a citizen’s constitutional rights…
[T]he public’s right to know the response of public officials charged with the responsibility of investigating alleged constitutional violations substantially exceeds any individual interests of those public officials or the interest of a Trooper charged with the responsibility protecting the safety and rights of the State’s citizens… [U]nrestricted public disclosure of the [Internal Affairs] investigative records will properly serve the public’s compelling interest.
4. The present appeal is also somewhat similar to Carlisle v. Utah County Sheriff’s Office, State Records Comm. Case No. 16-49 (Dec. 19, 2016), where the Committee found that “the public interest in having access to investigative records of police officers alleging violations of the public trust, outweighs the interest favoring restriction of these records, even though the police officer has not received formal charges or disciplinary action or the charges have been sustained.” Carlisle, ¶6.
5. After having considered the written and oral arguments of the parties and having reviewed the records in camera, the Committee finds that the requested records were properly classified as private pursuant to Utah Code § 63G-2-302(2)(a). The information did not relate to formal charges or disciplinary actions for the employee, and the alleged charges were not sustained allowing the records to be normally public pursuant to Utah Code § 63G-2-301(3)(o).
6. However, relying upon the reasoning in Lawrence and Carlisle, the Committee also finds that the public interest in having access to complaints against police officers, outweighs the interest favoring restriction of these records, even though the police officer has not received formal charges or disciplinary action or the charges have not been sustained. Because of the need for the public to have confidence in the actions of police officers “charged with the responsibility protecting the safety and rights of the State’s citizens,” unrestricted public disclosure of Internal Affairs investigative records “will properly serve the public’s compelling interest.” See, Lawrence. Accordingly, Petitioner’s request for “[a]ny/all formal complaints filed with the Moab City Police Department or Moab City regarding” the named former Moab police officer “during his tenure with the department” should be granted.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Molly Marcello, on behalf of The Times-Independent, is GRANTED.
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 its 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 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 October 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
Page Last Updated October 23, 2017 .
",Granted,2017-10-23T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON on behalf of THE UTAH INVESTIGATIVE JOURNALISM PROJECT, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 18-03
By this appeal, Petitioner, Eric Peterson, on behalf of The Utah Investigative Journalism Project, seeks access to records held by Respondent, Utah Attorney General’s Office.
FACTS
On or about July 2, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “[t]he final and completed Utah Attorney General’s Office 2012 UTA Investigation Report. The same document that the office would eventually turn over to the FBI looking into allegations of impropriety and insider dealings involving former UTA board members including Terry Diehl and Greg Hughes.”
On or about August 17, 2017, Respondent informed the Petitioner that the records were classified as protected under Utah Code §§ 63G-2-305(10)(a)-(d) because the FBI still had an ongoing investigation regarding the matter and release of the records would compromise the ongoing investigation. Respondent also notified the Petitioner that once the federal investigation was completed, the Respondent would consider reclassification of the records for public release.
On or about October 13, 2017, Petitioner resubmitted his request. On October 26, 2017, Respondent denied the request indicating that the records were still classified as protected under Utah Code §§ 63G-2-305(10)(a)-(d). Respondent also denied the Petitioner’s request as unreasonably duplicative under Utah Code § 63G-2-201(8)(a)(iv).
On October 29, 2017, Petitioner appealed the denial, and on November 13, 2017, acting Chief Administrative Officer (“COA”), Solicitor General Tyler Green granted the appeal. After further information was provided regarding the appeal and the requested records, the CAO denied the appeal on November 22, 2017, prior to the records being released.
Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on January 11, 2018, now 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. Records created or maintained for criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to interfere with investigations undertaken for enforcement purposes. Utah Code § 63G-2-305(10)(a).
3. Respondent provided to the Committee an affidavit that stated that based upon her experience as a criminal investigator and her knowledge of and involvement with the investigation which is the subject of the records request, “I believe that the disclosure of any information in this matter would significantly risk and jeopardize the integrity of our investigation and its effectiveness.”
4. After having reviewed the written and oral arguments of the parties, the Committee finds that Respondent properly classified the requested records as protected records pursuant to Utah Code § 63G-2-305(10).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is DENIED.
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.
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 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 January 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TAX ANALYSTS, Petitioner, v.
UTAH STATE TAX COMMISSION, Respondent.
DECISION AND ORDER
Case No. 18-17
By this appeal, Petitioner, Tax Analysts seeks access to records held by Respondent, the Utah State Tax Commission.
FACTS
On November 8, 2017, Petitioner made the following records request to Respondent:
All field audit manuals and audit training manuals that were used by your agency from January 1, 2011 to the present in the formats (electronic or otherwise) in which they are maintained. This request covers not only manuals that are designated as such, but also training materials or continuing education materials related to audits.
In a letter dated November 15, 2017, Dolores Furniss, Disclosure Officer for Respondent, stated that the “information that you are seeking is classified as ‘protected’ under Utah Code § 63G-2-305(15), therefore, disclosure of this information is prohibited.”
In a letter dated December 4, 2017, Chuck O’Toole, Senior Executive Editor with Petitioner, filed an appeal with Barry C. Conover, Executive Director for Respondent. Mr. O’Toole wrote that there is no public interest in restricting access to the record, and that the interests favoring access exceed the interest favoring restricting access. Mr. O’Toole noted that Petitioner had received “similar manuals and materials from a number of other states, and these records have been produced in their entirety.” In a letter dated December 19, 2017, Mr. Conover upheld Ms. Furniss’ denial of Petitioner’s records request.
Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on June 14, 2018, and carefully considering the requested relief 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. Records and audit workpapers that identify audit, collection, and operational procedures and methods used by the State Tax Commission, if disclosure would interfere with audits or collections, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(15).
3. Respondent argued that “[r]elease of the Tax Commission’s audit manuals would interfere with audits and collections.” At the hearing, counsel for Respondent presented testimony from Craig Sandberg, director of the auditing division for Respondent. Mr. Sandberg testified that release of information within the manuals would interfere with Respondent’s audit process, and that approximately 61% of the manual would have to be redacted in order to allow release of information that would be considered public information.
4. After having considered the written and oral arguments of the parties, the Committee finds that the requested records were properly classified as protected pursuant to Utah Code § 63G-2-305(15). The Utah Legislature specifically carved out a provision within GRAMA that applies specifically to Respondent’s records that “identify audit, collection, and operational procedures and methods used by the State Tax Commission.” Id. Respondent provided evidence that release of these manuals would interfere with audits or collections. Accordingly, the Committee is persuaded that these records should remain non-public records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Tax Analysts, is DENIED.
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.
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).
Entered this _25__ day of June 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RANDY ANDRUS on behalf of LEON BROWN’S ESTATE, Petitioner, v.
UNIFIED POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 18-34
By this appeal, Petitioner, Randy M. Andrus, on behalf of Leon Brown’s Estate, seeks access to records allegedly held by Respondent, the Unified Police Department.
FACTS
In a letter dated November 10, 2016, Randy M. Andrus, legal counsel representing Leon Brown’s Estate, made a records request to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Andrus requested all communications, records, and documents related to an incident occurring on September 22, 2016. In a response dated November 21, 2016, the records custodian for Respondent stated that the records requested were classified as protected records pursuant to Utah Code § 63G-2-305.
In a letter dated December 6, 2016, Mr. Andrus filed an appeal with the Chief Administrative Officer for Respondent. Mr. Andrus stated that he disagreed with the classification of the records as protected records. In a letter dated December 28, 2016, James M. Winder, Sherriff of the Unified Police Department of Greater Salt Lake, upheld the classification of the records as being protected because an “investigation has not been completed.”
In a letter dated January 25, 2017, Mr. Andrus filed an appeal with the State Records Committee (“Committee”). Due to the ongoing investigation, the appeal was postponed until a hearing concerning this matter was held before the Committee on September 13, 2018. At the hearing, counsel for Respondent stated that all records responsive to the request had been produced. Mr. Andrus stated that he believed records had not been produced based upon records he had already received.
The Committee deliberated and concluded that there was a question concerning whether all records had been produced by Respondent. The Respondent indicated that he had not conducted a search of email, though the request included a request for “communications.” The Committee asked counsel for Respondent if Respondent would be willing to thoroughly review its records, including communications, to determine if there were any more records that needed to be produced to Petitioner. Counsel for Respondent indicated that his client would be willing perform another review. Since there is a potential that any records found may still need to be classified by Respondent, the Committee voted to continue the hearing in order to allow Respondent to search for records and properly classify any records that are found responsive to Petitioner’s records request. See, Utah Code §§ 63G-2-201(1) & -205(2). Both parties stated that they were willing to continue the hearing to allow such a search and classification to take place.
ORDER
THEREFORE, IT IS ORDERED THAT the hearing is CONTINUED to the next scheduled Committee hearing.
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.
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).
Entered this _24__ day of September 2018
BY THE STATE RECORDS COMMITTEE
___________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
UTAH DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.
ORDER OF CONTINUANCE
Case No. 17-40
By this appeal, Petitioner, Steven Onysko, seeks access to records held by Respondent, Utah Department of Human Resource Management.
FACTS
On or about June 13, 2017, Mr. Onysko, made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested all documents related to the abusive conduct investigation conducted by the Utah Department of Human Resource Management into alleged behavior by Mr. Onysko. On June 27, 2017, Respondent denied the request and on July 10, 2017, Mr. Onysko appealed. On July 17, 2017, Debbie Cragun of the Utah Department of Human Resource Management upheld the denial.
Mr. Onysko filed an appeal with the Committee, and on October 12, 2017, a hearing was before the State Records Committee (“Committee”), where the parties were allowed to present their legal arguments. A motion was made by a Committee member to review the disputed records in camera. After a determination that the volume of records would make it difficult for the Committee to review the records during the hearing, the Committee voted unanimously to continue the hearing to a later date.
ORDER
THEREFORE, IT IS ORDERED THAT the hearing is CONTINUED to a later date to allow the Committee to properly review the disputed records.
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.
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 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 October 2017.
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON on behalf of THE UTAH INVESTIGATIVE JOURNALISM PROJECT, Petitioner, v.
SALT LAKE CITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 18-07
By this appeal, Petitioner, Eric Peterson, on behalf of The Utah Investigative Journalism Project, seeks access to records held by Respondent, Salt Lake City Police Department.
FACTS
On or about September 6, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “[u]nredacted copies of reports previously provided to [Petitioner] regarding [a] cold case investigation of [a specific person and case number] …”
On September 21, 2017, Respondent issued a denial for the redacted portions. Petitioner appealed the denial to the Chief Administration Officer (“CAO”), and on September 28, 2017, the CAO upheld the denial.
Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on February 8, 2018, now 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. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are properly classified protected records by a governmental entity if release of the records reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. See Utah Code § 63G-2-305(10)(a).
3. After having reviewed the written and oral arguments of the parties, and having reviewed the records in camera, the Committee finds that Respondent properly classified the records as protected records pursuant to Utah Code § 63G-2-305(10)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, on behalf of The Utah Investigative Journalism Project, is DENIED.
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.
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 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 20th day of February 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BEN EMPEY, Petitioner, v.
BOX ELDER COUNTY, Respondent.
DECISION AND ORDER
Case No. 18-20
By this appeal, Petitioner, Ben Empey seeks access to records held by Respondent, Box Elder County.
FACTS
In an e-mail dated March 20, 2018, Mr. Empey made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Empey stated that he was an “actively publishing journalist seeking records that are absolutely in the public interest.” Mr. Empey requested all documents related to the Promontory Landfill since January 1, 2013 including all written communications between specific individuals using specified key words. The request also included communications “between any Box Elder employee.” Mr. Empey noted that these “records requests are extraordinarily specific and include a multitude of keywords for ease of search.” One of the requests containing multiple key words was processed by the Respondent’s IT Department, the request resulted in 457,448 separate records falling within the search parameters provided by Mr. Empey.
On March 26, 2018, Respondent denied the records request indicating that it was too broad and more specific information needed to be provided. Mr. Empey filed an appeal with Stan Summers, Respondent’s Chief Administrative Officer. Mr. Empey also requested an expedited response by Respondent and a full fee waiver. In an e-mail dated March 29, 2018, Stephen R. Hadfield, Box Elder County Attorney, wrote that because of the more than 450K records responsive to Mr. Empey’s request, Respondent would need to estimate the cost of providing the documents to Mr. Empey prior to classifying, redacting, and providing the records. Mr. Hadfield also wrote that there would be “significant costs associated with this GRAMA request” and that “we cannot continue to process your repeated and voluminous GRAMA requests without reimbursement.”
Mr. Empey thereafter filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on June 14, 2018, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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, subject to Utah Code §§ 63G-203 & -204. A governmental entity shall provide a person with a certified copy of a record if the person: (1) Requesting the record has a right to inspect it; (2) Identifies the record with reasonable specificity; and (3) Pays the lawful fees. Utah Code § 63G-2-201(7).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
3. Counsel for Respondent argued that a records request that yields more than 450K documents, is not reasonably specific as required by Utah Code § 63G-2-201(7). The Committee agrees finding that Mr. Empey’s request terms for the search could be narrowed, allowing Respondent to provide more specific records to Mr. Empey at a lower cost.
4. GRAMA also specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
5. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
6. Counsel for Respondent argued that the huge volume of records (457,448 separate e-mails) made processing such a large records request from Mr. Empey cost prohibitive to Respondent. Counsel argued that it would be far wiser to make the request for records more specific, allowing the amount of records to be provided to Mr. Empey to be decreased to a more manageable amount. However, counsel stated that Mr. Empey “has refused to provide any direction to the County on narrowing the requests or providing any reimbursement for costs.”
7. A governmental entity may require payment of future estimated fees before beginning to process a request if fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i). Without a narrowing of the search request, the Committee finds that the costs to provide the records to Mr. Empey would be cost prohibitive for Respondent even though release of the record could benefit the public. Accordingly, after reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Respondent’s denial of Mr. Empey’s request for a fee waiver was not an unreasonable denial pursuant to Utah Code § 63G-2-203(6).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ben Empey, is DENIED.
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.
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).
Entered this _25__ day of June 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CHAD BENNION, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE Respondent.
DECISION AND ORDER
Case No. 18-35
By this appeal, Petitioner, Chad Bennion, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On October 7, 2016, Petitioner made a records request to the Utah Attorney General’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested:
...records indicating the balance, revenues and expenditures of the Attorney General Litigation Fund for the purpose of providing funds to pay for any costs and expenses incurred by the state attorney general in relation to actions under state or federal antitrust, criminal laws, or civil proceedings, for the 2014, 2015 and 2016, including the current balance of the fund.
In response to the request, Respondent provided Petitioner with a report regarding the Litigation Fund that was prepared in September 2017 for the EOCJ Appropriations Sub-committee entitled, Fund 2005: Attorney General Litigation Fund Report to the EOCJ Appropriations Sub-committee (Sept. 2016). Petitioner appealed this response to Respondent’s Chief Administrative Officer, asserting that the report provided did not include the specific itemized information he requested.
On December 1, 2016 the Chief Administrative Office, Parker Douglas, responded to Petitioner explaining that Respondent does not maintain spreadsheets or other reports that would include the specific itemized information Petitioner was seeking and that all public electronic data maintained by the Office was already available through the State’s transparency website.
Petitioner did not appeal this decision to the State Records Committee, but instead submitted an additional request on January 15, 2017. Respondent denied the request as a duplicative request. Petitioner appealed the denial to the Chief Administrative Officer, who upheld the determination that the new request was mostly unreasonably duplicative of an earlier request and, therefore, affirmed the denial of Petitioner’s request for records from 2014 through 2016.
Petitioner filed an appeal with the State Records Committee (“Committee”) on April 26, 2017. After hearing oral argument and testimony from all the parties on September 13, 2018, reviewing the records in camera, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Prior to holding the hearing, Petitioner made a request for a postponement of the hearing. Pursuant to Utah Admin. Code R. 35-1-2(12)(b), the Committee Chair has the discretion to grant or deny a petitioner’s request to postpone a hearing based upon: (1) The reasons given by Petitioner; (2) The timeliness of the request; (3) Whether Petitioner has previously requested and received a postponement; and (4) Any other factor determined to protect the equitable interests of the parties. The Committee Chair denied the request for a postponement based in part upon the fact that Petitioner had previously requested and had received multiple postponements. At the hearing, Petitioner requested a continuance of the hearing. After considering the reasons given by Petitioner, the fact that Petitioner’s appeal was filed in April 2017, and the objection by Respondent to having the matter continued, the Committee voted unanimously to hold the hearing as scheduled.
2. Every 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 subject to Utah Code §§ 63G-2-203 and 63G-2-204. Utah Code § 63G-2-201(1).
3. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). A governmental entity may require payment of future estimated fees before beginning to process a request if the fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i). Further, a governmental entity may have an additional period of time if the request is for a voluminous quantity of records or a record series contains a substantial number of records. Utah Code § 63G-2-204(5)(c).
4. Respondent provided a portion of the requested records to the Committee for an in camera review. Counsel for Respondent also stated that the records request would involve a voluminous quantity of records resulting in fees that would exceed $50.
5. After having reviewed some of the records in camera, and considering the oral and arguments of the parties, the Committee finds that Respondent has records that are responsive to Petitioner’s request. However, the records contain both public and non-public records and the request is a voluminous request. Accordingly, Respondent shall be allowed to estimate the fee required for producing the records and have the opportunity to classify the records as public and non-public records prior to releasing the records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Chad Bennion is 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.
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).
Entered this _24__ day of September 2018
BY THE STATE RECORDS COMMITTEE
___________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LANCE ROLPH, Petitioner, v.
DEPARTMENT OF HUMAN SERVICES, OFFICE OF RECOVERY SERVICES, Respondent.
DECISION AND ORDER
Case No. 17-38
By this appeal, Petitioner, Lance Rolph, seeks access to records held by Respondent, Department of Human Services, Office of Recovery Services.
FACTS
On or about June 27, 2017, Petitioner made a records request, pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested a copy of “Office of Recovery Services Information System’s Guide…” and a copy of “any and all of ORS’s policies having to do with case records & release of case records, what type of records ORS keeps in case files, evidence, etc.”
On July 12, 2017, Respondent partially denied the request pursuant to Utah Code §§ 63G-2-305(12) and –305(36), granted the remaining request pursuant to Utah Code § 63G-2-301. On July 31, 2017, Petitioner appealed the partial denial, and on August 11, 2017, the ORS Chief Administrative Officer upheld the denial.
Thereafter, Petitioner then filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony, now 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. Records the disclosure of which would jeopardize the security of governmental property, governmental programs, or governmental recordkeeping systems from damage, theft, or other appropriation or use contrary to law or public policy are protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(12).
3. After reviewing the arguments of the parties, the Committee finds that the Respondent has provided all public records that are responsive to Petitioner’s records request. Regarding records in the case database that have not been disclosed by Respondent, the Committee finds that they were appropriately classified protected pursuant to Utah Code § 63G-2-305(12).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Lance Rolph, is DENIED.
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 its 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 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 October 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
AARON DAVID TRENT NEEDHAM, Petitioner, v.
STATE OF UTAH DEPARTMENT OF COMMERCE, DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING (DOPL), Respondent.
DECISION AND ORDER
Case No. 17-46
By this appeal, Petitioner, Aaron David Trent Needham, seeks access to records held by Respondent, State of Utah Department of Commerce, Division of Occupational and Professional Licensing (“DOPL”).
FACTS
On September 19, 2017, Petitioner filed a letter with the executive secretary of the State Records Committee (“Committee”) requesting assistance obtaining records from DOPL. Petitioner claimed that he filed a records request on June 29, 2017, and a notice of appeal on August 11, 2017, but had not received a response from DOPL.
After having been informed that an appeal had been filed by Petitioner, Assistant Attorney General Ché Arguello, legal counsel for DOPL, stated in a letter dated September 22, 2017, that he had “consulted with records officers for both DOPL and [the Utah Department of] Commerce, all of whom confirmed they have never received either a request or appeal related to Mr. Needham’s matter currently pending before the Records Committee.” Mr. Arguello later wrote in a letter to the Committee dated October 3, 2017, that “DOPL is more than willing to consider Mr. Needham’s request for records, but asks that Mr. Needham follow the law on how such requests are made.”
The Committee scheduled a hearing on the matter on December 14, 2017. At the hearing, Mr. Arguello requested that Petitioner’s appeal be dismissed based upon Petitioner failing to follow the requirements found in the Government Records Access and Management Act (“GRAMA”) for making a records request to a governmental entity. After having heard oral argument and testimony at the hearing held on December 14, 2017, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A person making a request for a record under GRAMA, shall furnish the governmental entity with a written request containing the person’s name, mailing address, daytime telephone number if available, and a description of the record requested that identifies the record with reasonable specificity. Utah Code § 63G-2-204(1).
2. A requester may appeal an access denial to the chief administrative officer of the governmental entity by filing a notice of appeal with the chief administrative officer. Utah Code § 63G-2-401(1)(a). A requester may appeal the decision of the chief administrative officer of a governmental entity under Utah Code § 63G-2-401 by: (1) Appealing the decision to the Committee as provided in Utah Code § 63G-2-403 or; (2) Petitioning for judicial review in district court as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-402(1)(a).
3. After reviewing the written and oral arguments of the parties, the Committee is persuaded by Respondent’s argument that Petitioner failed to follow the requirements outlined in GRAMA for requesting a record from DOPL and filing an appeal with the chief administrative officer for DOPL. Accordingly, the Committee finds that it does not have jurisdiction to hear Petitioner’s appeal.
ORDER
THEREFORE, IT IS ORDERED THAT this matter be DISMISSED.
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 its 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 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 26th day of December 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
LOGAN CITY, Respondent.
DECISION AND ORDER
Case No. 18-04
By this appeal, Petitioner, Brady Eames, seeks access to records held by Respondent, Logan City.
FACTS
On or about October 4, 2017, Mr. Eames made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested, “[a]ny and all FCC Forms 394 associated with any transfer of cable television franchise since December 30, 1984.”
On October 4, 2017, Respondent provided multiple documents associated to the requested records. On October 24, 2017, Mr. Eames filed an appeal to the Mayor of Logan alleging that no records had been provided and that he had not been notified that “they were never created or were lost, given away or destroyed.” On October 27, 2017, additional documents were provided to the Petitioner.
Petitioner was unsatisfied with the documents provided and filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on January 11, 2018, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The State Records Committee is authorized to: (1) Grant the relief sought, in whole or in part of a records committee appellant; or (2) Uphold the governmental entity’s access denial, in whole or in part. Utah Code § 63G-2-403(11)(a). Having reviewed Petitioner’s records request and the arguments and testimony of the parties, the Committee is persuaded that Logan City has already provided to Mr. Eames all records that are responsive to his records request. Therefore, the Committee cannot order Logan City to provide records to Petitioner that it does not possess.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames, is DENIED.
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.
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 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 January 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
MORGAN COUNTY ATTORNEY’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 18-12
By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, the Morgan County Attorney’s Office.
FACTS
On or about November 28, 2017, Mr. Gollaher made a records request to the Morgan County Attorney’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested copies, bills or payments made to his appellant council, Ron Fujino or Bryan Baron.
On or about December 5, 2017, Respondent denied Mr. Gollaher’s request, and on or about January 1, 2018, Mr. Gollaher appealed the denial to the Morgan County Chief Administrator. The denial was upheld and thereafter, Mr. Gollaher filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on March 8, 2018, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i). The governmental entity is also not required to provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(a)(iii). Additionally, the Committee cannot order a governmental entity to disclose a record that it does not possess. See, Utah Code § 63G-2-403(12) & Utah Admin. Code R 35-2-2(2).
2. In the present case, counsel for Respondent indicated that the Morgan County Attorney’s Office is not in possession of any record that is responsive to Mr. Gollaher’s November 28, 2017 GRAMA request.
3. Accordingly, after reviewing the arguments submitted by the parties, hearing oral argument and the testimony of Mr. Gollaher, and based upon the evidence that was presented, the Committee finds insufficient evidence to show that Respondent possesses the records responsive to Mr. Gollaher’s November 28, 2017 GRAMA request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher, is DENIED.
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.
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 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 19th day of March 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BEN EMPEY on behalf of INDEPENDENT JOURNALIST, Petitioner, v.
UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF WASTE MANAGEMENT AND RADIATION CONTROL, Respondent.
DECISION AND ORDER
Case No. 18-10
By this appeal, Petitioner, Ben Empey, Independent Journalist, seeks access to records held by Respondent, Utah Department of Environmental Quality, Division of Waste Management and Radiation Control.
FACTS
On or about December 12, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested detailed records relating to landfill information in the State of Utah.
On December 19, 2017, an Assistant Utah Attorney General representing Respondent made a telephone call to Petitioner seeking more specificity in order to provide a response. In a follow up email, dated December 19, 2017, counsel for Respondent noted that Petitioner’s request was not specific, but offered to provide Petitioner with access to certain records for inspection free of charge. Counsel also indicated that other information could be made available through a detailed review conducted by the Department of Technology Services (“DTS”) at a cost.
Petitioner filed an appeal with Respondent and on December 22, 2017, Respondent denied Petitioner’s request for a fee waiver for the costs that Respondent would incur to perform a search of the requested records. Petitioner thereafter filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on February 8, 2018, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. Respondent argued that Petitioner’s request for records is very broad because it is for an “exhaustive search of all Utah Department of Environmental Quality employee e-mails from 2010 to the present time.” For such a search of employee e-mails, Respondent would be required to pay DTS for “a significant amount of time from the DTS, technical services department that manages [Respondent’s] records.” Respondent argued that DEQ position denying Petitioner’s request for a fee waiver “is particularly strong because [Respondent] did provide 299 pages of e-mails and attachments, free of charge, from…two staff members who were working on the Promontory Landfill matter.” Respondent further argued, “Petitioner has provided no rationale or basis as to why this level of production, free of charge, is not adequate to meet his needs.”
5. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Respondent did not unreasonably deny the request for the fee waiver pursuant to Utah Code § 63G-2-203(6).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ben Empey, is DENIED.
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.
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 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 20th day of February 2018.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
MORGAN COUNTY ATTORNEY’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 18-29
By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, the Morgan County Attorney’s Office.
FACTS
On or about February 5, 2018, Mr. Gollaher made a records request to the Morgan County Attorney’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested “[a]ll communications, billing records received and payments made to, from or concerning [a specific individual] and [an Appellate and District Case No.] from March 1, 2016 to the date of reply to this request, including but not limited to email, invoices, payment records, transmittals, etc. by and employee/official of Morgan County.” In response to the request, Respondent provided six pages of records.
In a letter dated February 26, 2018, Mr. Gollaher appealed the response to Ned Mecham, the Morgan County Council Chair and designated Chief Administrative Officer. Mr. Gollaher stated that he believed detailed records were being withheld from him, and requested that any record being withheld as privileged, “please identify that record, the date of that record, the subject matter of that record, and Mr. Farris’s presumption of privilege.” No response was given by Mr. Mecham, and Mr. Gollaher deemed the failure to provide a response to be a decision affirming the access denial pursuant to Utah Code § 63G-2-401(5)(b)(i).
Mr. Gollaher filed an appeal with the State Records Committee (“Committee”) and a hearing was held on June 14, 2018. See, Gollaher v. Morgan County Attorney’s Office, State Records Committee Case No. 18-16 (June 25, 2018). At the request of the parties, the hearing was continued by the Committee. On July 12, 2018, the Committee held a second hearing on this matter. At the request of the parties, the hearing was continued by the Committee. On August 9, 2018, the Committee held a third hearing on this matter. The Committee allowed both parties to address their supplemental responses, and after having considered all arguments presented during both hearings, the Committee now 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. In response to a records request under GRAMA, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
3. After having reviewed the written and oral arguments of the parties, and hearing oral testimony at the hearing, the Committee is convinced that Respondent does not have a record that is responsive to Mr. Gollaher’s records request. Respondent provided a sworn declaration of Jann L. Farris, Morgan County Attorney, that Respondent is “not in possession of a record responsive to this appeal” and has given Mr. Gollaher a “full response” to Mr. Gollaher’s records request. Although Mr. Gollaher presented evidence that an e-mail that would be a record responsive to his request was sent to Mr. Farris, Mr. Farris asserted that he may have never received the e-mail. Accordingly, the Committee finds that it cannot order Respondent to provide a record that Respondent asserts does not exist.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher is DENIED.
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.
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).
Entered this 20th day of August 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KIMBALL BENNION, on behalf of KUTV 2 NEWS, Petitioner, v.
BRIGHAM YOUNG UNIVERSITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 18-23
By this appeal, Petitioner, Kimball Bennion on behalf of KUTV 2 News, seeks access to records allegedly held by Respondent, the Brigham Young University Police Department.
FACTS
On or about March 29, 2018, Petitioner made a records request to the Brigham Young University Police Department ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested a copy of a 2017 interview by Respondent with Joseph L. Bishop.
Respondent denied the request indicating that “Brigham Young University and its University Police are not subject to GRAMA.” However, Respondent also stated that “as a matter of internal practice” it released records classified as public records under GRAMA, but “the requested recording [would be] a private record under Utah Code 63G-2-303.”
Petitioner appealed the denial to Lt. Steven Don Messick, and on April 10, 2018, the appeal was denied. Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on July 12, 2018, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA states that every person generally 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). GRAMA defines a “public record” means a “record” that is not private, controlled, or protected and that is not exempt from disclosure as provided in Utah Code § 63G-2-201(3)(b). Utah Code § 63G-2-103(21). The “record” needs to be “prepared, owned, received, or retained by a governmental entity or political subdivision” of the State of Utah. Utah Code § 63G-2-103(22)(a)(i). One of GRAMA’s definitions of a “governmental entity” includes “every office, agency, board, bureau, committee, department, advisory board, or commission” of an entity listed in Utah Code § 63G-2-103(11)(a) that is “funded or established by the government to carry out the public’s business.” Utah Code § 63G-2-103(11)(b)(i).
2. Respondent argues that it is not a “governmental entity subject to GRAMA” and therefore, would not be participating in the Committee’s hearing or submitting written statements or records for review by the Committee. Since the issue of whether Respondent is a governmental entity is currently being reviewed by a Utah District Court in Salt Lake Tribune v. Utah State Records Comm., 3rd District Case No. 160904365, the Committee defers addressing this issue at this time and instead, addresses solely the issue of the classification of the requested record.
3. In its denial letter dated April 10, 2018, Lt. Messick for Respondent stated that if the record was classified under GRAMA, the requested recording would be considered a private record pursuant to Utah Code § 63G-2-302 “because disclosure of the recording would constitute a clearly unwarranted invasion of personal privacy of individuals involved in the case.” Petitioner argued that Utah Code § 63G-2-302(2)(d) should not apply because the allegations related to the interview have already been made public through multiple media reports and through a lawsuit filed in U.S. District Court. Additionally, Respondent’s investigation of the allegations has been closed.
4. After having reviewed all written materials submitted to the Committee and arguments made by Petitioner during the Committee’s hearing, the Committee finds that the requested records were improperly classified as private records by Respondent. Release of the recording would not be a “clearly unwarranted invasion of personal privacy” because information within the recording of the interview has already been released to the public. Additionally, Respondent has not provided a valid reason why there is a present need to keep information from a closed investigation non-public. See, Deseret News Publ’g Co., v. Salt Lake Cty. 2008 UT 26, 182 P.3d 372. Accordingly, the Committee finds that the requested record is a public record and should be disclosed to Petitioner subject to the District Court’s decision in Salt Lake Tribune v. Utah State Records Comm., 3rd District Case No. 160904365 concerning whether Respondent is a governmental entity subject to GRAMA.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kimball Bennion on behalf of KUTV 2 News is GRANTED.
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.
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).
Entered this 23rd day of July 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CHAD BENNION, Petitioner, v.
LT. GOVERNOR’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 18-33
By this appeal, Petitioner, Chad Bennion, seeks access to records allegedly held by Respondent, the Lieutenant Governor’s Office.
FACTS
On January 22, 2018, Mr. Bennion submitted a records request with Respondent pursuant to the Government Records Access and Management Act (“GRAMA”) regarding 2014 Senate Bill 54. Mr. Bennion filed an appeal with the State Records Committee (“Committee”) on April 13, 2018 and the matter was scheduled for a hearing to be held on September 13, 2018.
On August 31, 2018, Mr. Bennion requested a postponement of the hearing. Mr. Bennion’s request for a postponement was denied by the Chair of the Committee and one other Committee member pursuant to Utah Admin. Code R. 35-1-2(12). On September 13, 2018, the Committee held a hearing and Mr. Bennion asked for a continuance of his case, stating that the parties were currently mediating the case with the Government Records Ombudsman and additional time was needed for a potential settlement. After both parties confirmed during the hearing that they were willing to have a continuance, the Committee voted to continue the present case for a period not longer than six months.
ORDER
THEREFORE, IT IS ORDERED THAT the hearing is CONTINUED for a period not longer than six months.
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.
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).
Entered this _24_ day of September 2018
BY THE STATE RECORDS COMMITTEE
___________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LEONARD PLATT, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 18-18
By this appeal, Petitioner, Leonard Platt seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On or about January 29, 2018, Petitioner made a records request to the Utah Attorney General’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “[a]ny and all records pertaining to the investigation of all allegations of criminal conduct committed by Chad Lester Platt from January 1, 2012 to May 9, 2016.”
Respondent stated that the records were protected because they were related to an ongoing investigation and denied the request pursuant to Utah Code § 63G-2-305(10)(a)-(d). Mr. Platt appealed the denial to Tyler Green, Respondent’s Chief Administrative Officer. The denial was upheld, and thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”).
On June 14, 2018, a hearing was held before the Committee where the parties were allowed to present their legal arguments. Respondent indicated that the investigation was now closed and that Mr. Platt had been recently provided with the records responsive to his request. Counsel for Mr. Platt argued that they had not yet had the opportunity to review the records to determine if Mr. Platt’s records request had indeed been fulfilled. The parties thereafter agreed that a continuance of the hearing would allow the parties to have an opportunity to review the records and determine whether Respondent has fulfilled Mr. Platt’s records request.
ORDER
THEREFORE, IT IS ORDERED THAT the hearing is CONTINUED to the next scheduled Committee hearing.
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.
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).
Entered this _25__ day of June 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CORBIN T. VOLLUZ, Petitioner, v.
BRIGHAM YOUNG UNIVERSITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 18-25
By this appeal, Petitioner, Corbin T. Volluz, seeks access to records allegedly held by Respondent, the Brigham Young University Police Department.
FACTS
On or about March 30, 2018, Petitioner made a records request to the Brigham Young University Police Department ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “all records relating to [a specific incident report] relating to [the] investigation of [a specific person] in November and December of 2017.”
On or about April 10, 2018, Respondent provided a copy of an incident report. Petitioner appealed the denial to Chief Larry A. Stott, who upheld the appeal indicating that “Brigham Young University and its University Police are not subject to GRAMA.” However, Chief Stott also stated that “as a matter of internal practice,” Respondent releases records classified as public records under GRAMA, but “the requested recording [would be] a private record under Utah Code 63G-2-303.”
Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on July 12, 2018, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA states that every person generally 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). GRAMA defines a “public record” means a “record” that is not private, controlled, or protected and that is not exempt from disclosure as provided in Utah Code § 63G-2-201(3)(b). Utah Code § 63G-2-103(21). The “record” needs to be “prepared, owned, received, or retained by a governmental entity or political subdivision” of the State of Utah. Utah Code § 63G-2-103(22)(a)(i). One of GRAMA’s definitions of a “governmental entity” includes “every office, agency, board, bureau, committee, department, advisory board, or commission” of an entity listed in Utah Code § 63G-2-103(11)(a) that is “funded or established by the government to carry out the public’s business.” Utah Code § 63G-2-103(11)(b)(i).
2. Respondent argues that it is not a “governmental entity subject to GRAMA” and therefore, would not be participating in the Committee’s hearing or submitting written statements or records for review by the Committee. Since the issue of whether Respondent is a governmental entity is currently being reviewed by a Utah District Court in Salt Lake Tribune v. Utah State Records Comm., 3rd District Case No. 160904365, the Committee defers addressing this issue at this time and instead, addresses solely the issue of the classification of the requested record.
3. Petitioner argues that GRAMA is designed “ton ensure accountability and transparency in government.” Petitioner claims that redactions made by Respondent in the reports “are being used for more than simply obscuring names and identifying information of witnesses and victims.”
4. After having reviewed all written materials submitted to the Committee and arguments made by Petitioner during the Committee’s hearing, the Committee finds that the requested records were improperly classified as private records by Respondent. As found in other Committee hearings held on July 12, 2018 regarding the same records, release of the recording would not be a “clearly unwarranted invasion of personal privacy” because information within the recording of the interview has already been released to the public. Additionally, Respondent has not provided a valid reason why there is a present need to keep information from a closed investigation non-public. See, Deseret News Publ’g Co., v. Salt Lake Cty. 2008 UT 26, 182 P.3d 372. Accordingly, the Committee finds that the requested record is a public record and should be disclosed to Petitioner subject to the District Court’s decision in Salt Lake Tribune v. Utah State Records Comm., 3rd District Case No. 160904365 concerning whether Respondent is a governmental entity subject to GRAMA.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Corbin T. Volluz is GRANTED.
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.
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).
Entered this 23rd day of July 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
WELLSVILLE CITY, Respondent.
DECISION AND ORDER
Case No. 18-44
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Wellsville City.
FACTS
On or about August 10, 2018, Mr. Eames made a records request to Wellsville City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested records relating to any and all documentation of the penal bonds which have been issued, any and all documentation of the oaths of office, and any and all respective agreements relating to the Utah Local Governments’ Trust (“ULGT”).
On or about August 17, 2018, Respondent provided Mr. Eames with the oaths of office pursuant to his request. On October 22, 2018, Respondent provided a copy of the bond billing information that was available. Mr. Eames indicated that he was not satisfied with the billing statements and filed an appeal.
Thereafter, Respondent contacted Old Republic Surety Group and obtained a copy of the actual bonds. On October 26, 2018, Respondent provided the bonds and billing statements. Mr. Eames filed an appeal with the State Records Committee (“Committee”).
During a hearing held on November 8, 2018, Mr. Eames stated that he was satisfied with the Respondent’s response to his records request and that the matter should be withdrawn. Accordingly, the appeal was withdrawn by Petitioner.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is WITHDRAWN.
Entered this 20th day of November 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
OGDEN CITY, Respondent.
DECISION AND ORDER
Case No. 19-05
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Ogden City.
FACTS
On or about September 25, 2018, Mr. Eames made records requests to Ogden City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested, “any and all executed and filed public official penal bonds and any and all subscribed and filed constitutional oaths of office of certain elected and appointed officers…” Said request was addressed to 30 different cities/towns and was not received by the Ogden City Recorder, in error.
On or about October 20, 2018, Mr. Eames appealed the constructive denial to the Records Review Board. On October 25, 2018, Respondent responded to Mr. Eames’ request by providing the records responsive to his request.
Unsatisfied with the Respondent’s response, Mr. Eames filed an appeal with the State Records Committee (“Committee”) indicating that he had been denied access to surety penal bonds and Oaths of Office of Ogden City public officials. After hearing oral argument and testimony from the Respondent on February 14, 2019, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). However, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).
2. After considering all evidence presented to the Committee, the Committee finds that Ogden City has provided all records responsive to Mr. Eames’ records request. However, at the hearing, Ogden City noted that there have been additional Oaths of Office taken since the time of the initial request, and that Ogden City would be happy to provide those records to Mr. Eames.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is DENIED.
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.
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).
Entered this 25th day of February 2019
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ELIAS FARACLAS, Petitioner, v.
LEHI CITY Respondent.
DECISION AND ORDER
Case No. 18-39
By this appeal, Petitioner, Elias Faraclas, seeks access to records allegedly held by Respondent, Lehi City.
FACTS
On or about January 17, 2018, Mr. Faraclas made a records request to Lehi City (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Faraclas requested, “[a]ll electronic communications, including cell phone text messages, sent and received by Paul Hancock during the city council meeting on 1/16/18….” On January 22, 2018, Respondent granted the request and provided Mr. Faraclas with text communications, labeled as a group chat that “were received in Paul Hancock’s personal capacity as a resident and not as a Council Member” that occurred during the city council meeting.
Mr. Faraclas appealed the response to the Chief Administrative Officer indicating that Respondent “has delivered a response that is easily seen not to be factual in comparison to the other parts of the public record.” In a letter dated March 22, 2018, the Chief Administrative Officer denied the appeal stating that the initial decision of the city recorder was correct.
Thereafter, in an appeal dated April 19, 2018, Mr. Faraclas filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on October 11, 2018, 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 §63G-2-201(2). Records that are private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. A “record” under GRAMA includes electronic data “regardless of physical form or characteristics” (1) That is prepared, owned, received, or retained by a governmental entity or political subdivision; and (2) Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a). A record does not mean a personal note or personal communication prepared or received by an employee or officer of a governmental entity: (1) In a capacity other than the employee’s or officer’s governmental capacity; or (2) That is unrelated to the conduct of the public’s business. Utah Code § 63G-2-103(22)(b)(i).
3. Similarly, the Utah Legislature passed the Open and Public Meetings Act (“OPMA”) because political subdivisions exist to “conduct…the people’s business.” Utah Code § 52-4-102(1). Accordingly, the Legislature through OPMA requires the state, its agencies, and its political subdivisions to: (1) Take their actions openly; and (2) Conduct their deliberations openly. Utah Code § 52-4-102(2).
4. Mr. Faraclas argued that the purpose of his records request is to determine what the Lehi City Council members were texting about during city council meeting. Mr. Faraclas contended that the public has a right to know about communications received by city council members during the meeting if they concern the public’s business.
5. The respondent indicated that a review of Councilman Hancock’s text messages received during the meeting revealed that some of the content of the messages was relevant to the city’s business.
6. After having reviewed the written arguments of the parties and considering the oral arguments presented during the hearing, the Committee finds that Respondent should release to Mr. Faraclas those text messages responsive to the records request. These messages should be considered “records” under GRAMA and should be disclosed if they concern “the public’s business.” See also, Cromar v. City of Cedar Hills, State Records Committee Case No. 12-11 (June 26, 2012).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Elias Faraclas, is GRANTED.
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.
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).
Entered this 26th day of October 2018
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
NORTH LOGAN CITY, Respondent.
DECISION AND ORDER
Case No. 18-47
By this appeal, Petitioner, Brady Eames, seek s access to records allegedly held by Respondent, North Logan City.
FACTS
On or about September 10, 2018, Mr. Eames made a records request to North Logan City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested records relating to any and all documentation of the penal bonds which have been issued, any and all documentation of the oaths of office, and any and all respective agreements relating to the Utah Local Governments’ Trust (“ULGT”).
On or about September 19, 2018, Respondent informed Mr. Eames that the oaths of office and bonding records were available to view. After locating additional records, including the ULGT Policy with a higher Crime Policy and the Crime Policy Declaration from Allied Group (to be replaced by the ULGT Policy), Respondent provided those records for viewing as well. On October 2, 2018, Scott Bennett, North Logan City Recorder, provided a statement that all records maintained by Respondent had been provided to Mr. Eames.
Mr. Eames was not satisfied with the response and filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on November 8, 2018, and carefully considering the requested relief 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. Additionally, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall make and maintain adequate documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities. Utah Code § 63A-12-103(4).
3. Utah Code § 10-3-819 provides that elected officials for municipalities to execute a bond with good and sufficient sureties payable to the municipality and the requirements for the bond. Any political subdivision may create and maintain a reserve fund or may jointly with one or more other political subdivisions, make contributions to a joint reserve fund “for the purpose of purchasing liability insurance to protect the cooperating subdivisions from any or all risks created by this chapter.” Utah Code § 63G-7-703(2).
4. In order to comply with the requirements of Utah Code § 10-3-819, they have a contract with ULGT pursuant to Utah Code § 63G-7-703.
5. Utah Code § 10-3-827 provides that offices of a municipality shall subscribe and file an oath of office.
6. After having reviewed all written arguments and hearing testimony presented by the parties, the Committee finds that Respondent shall provide Mr. Eames with access and/or copies, if requested2, of the oaths of offices, crime policy insurance in lieu of penal bonds, and records of the interlocal agreement with ULGT.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 20th day of November 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
RICHMOND CITY, Respondent.
DECISION AND ORDER
Case No. 18-55
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Richmond City.
FACTS
On or about September 10, 2018, Mr. Eames made a records request to Richmond City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested “to access and inspect certain opinions, interpretations and correspondences regarding penal bonds executed and filed by certain persons elected or appointed as certain officers…”
On September 25, 2018, after receiving no response from the Respondent, Mr. Eames filed an appeal to the person he believed was the Chief Administrative Officer. Again, no response was provided by the Respondent, and Mr. Eames filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief 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. Additionally, records “to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation,” are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall “make and maintain adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities.” Utah Code § 63A-12-103(4).
3. After having reviewed all written arguments and hearing testimony presented, the Committee finds that opinions and final interpretations are public records and that the Respondent shall provide Mr. Eames with all records of such, if available.
4. Additionally, if there are any correspondence(s) related to the above, the Respondent has an obligation to classify such records, and provide Mr. Eames with all public correspondences. If any records are classified as restricted, the Respondent shall provide reasons and/or citations as to why said records are restricted.
5. If the Respondent does not have any records available that are responsive to Mr. Eames’ request, the Respondent shall formally indicate that they don’t have any responsive records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is GRANTED.
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.
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).
Entered this 22nd day of December 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROGER BRYNER, Petitioner, v.
UTAH DEPARTMENT OF HEALTH. Respondent.
DECISION AND ORDER
Case No. 16-16
By this appeal, Petitioner, Roger Bryner, seeks access to records held by Respondent, the Utah Department of Health.
FACTS
On February 25, 2016, Mr. Bryner made a records request via e-mail for “exact copies of all of my medical records” from the Utah Department of Health ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Bryner demanded that he receive un-redacted copies “including only electronic, not paper, copies…NOT PRINTOUTS” and “raw files including any file structure for my files, in a .zip file or on a DVD or CD or flash file system.” Mr. Bryner stated that he wanted to “inspect and take electronic copies of these electronic documents ASAP.” In a letter dated February 25, 2016, the chief forensic toxicologist for Respondent stated that electronic files were being provided via e-mail including screen shots of the file structure from Respondent’s server.
On March 7, 2016, Mr. Bryner appealed to Dr. Joseph Miner, Executive Director of Respondent, arguing that all requested documents had not been provided to him, claiming that his request was for “all electronic source documents” for the Toxicology Final Report. Mr. Bryner stated that he wanted the Utah BFT Laboratory Alcohol-Volatiles report including “any source electronic medical records, and any records that exist in an uncompiled state as they exist on your server in electronic format, not compiled modified format as previously provided.” Mr. Bryner further stated that he was “requesting EVERYTHING not just the core files.”
In a letter dated March 10, 2016, Dr. Miner stated that upon review, it was determined that Mr. Bryner was entitled to an additional instrument file regarding the testing of his blood sample for alcohol, and that the file would be released to him. Regarding “electronic source documents” for the Toxicology Final Report, Dr. Miner stated that the records do not exist in any current form. In order to provide the record, the data entries used to generate the Toxicology Final Report would need to be extracted from the database which would require “at least 20 hours to extract the record.” Dr. Miner added that a fee waiver would not be offered to Mr. Bryner “if you choose to pursue this.” However, if Mr. Bryner agrees to pay the fee, “I will instruct the Lab to utilize [Department of Technology Services] support to obtain and provide to you the extracted data.”
Disagreeing with the Respondent’s claim that it would take “at least 20 hours to extract the record,” Mr. Bryner filed an appeal with the State Records Committee (“Committee”), of the Respondent’s decision not to grant him a fee waiver. The Committee, having reviewed the arguments submitted by the parties, having heard oral argument and testimony on April 14, 2016, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA states that every 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 “subject to Sections 63G-2-203 and 63G-2-204.” Utah Code § 63G-2-201(1).
2. Utah Code § 63G-2-203(1) states that a governmental entity may charge a “reasonable fee to cover the governmental entity’s actual cost of providing a record.” Actual costs may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person’s request. Utah Code § 63G-2-203(2)(a)(i).
3. In the case of a record that is a result of “computer output other than word processing”, the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information may be charged by the governmental entity as an “actual cost.” Utah Code § 63G-2-203(2)(a)(iii). A governmental entity may require payment of past fees and future estimated fees before beginning to process a request if: (1) Fees are expected to exceed $50.00; or (2) The requester has not paid fees from previous requests. Utah Code § 63G-2-203(8).
4. A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record; or (3) The requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4). A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b).
5. Respondent argued that providing the information to Mr. Bryner would be difficult and require at least 19 hours because the databases and programs involved with his records request “deal with third party proprietary copyrighted software and programs.” In order to provide the record to Mr. Bryner, records would need to “be separated from copyrighted and proprietary material, as well as from other private and protected records of other individuals.” Respondent then argued that a denial of Mr. Bryner’s request for a fee waiver was reasonable because “Mr. Bryner provided no information to support his contention that the information that he seeks will directly implicate his legal rights and that he is impecunious.”
6. The Committee finds Respondent’s explanations concerning the time it would take to compile and provide the information to Mr. Bryner to be reasonable and credible. GRAMA allows Respondent to charge Mr. Bryner for the actual costs for providing the record. The Committee also finds Respondent’s denial of Mr. Bryner’s request for a fee waiver was not an unreasonable denial. Although Subsection 63G-2-203(4) “encourages” a governmental entity to fulfill a records request without charge under certain circumstances, “GRAMA still gives a governmental entity the discretion to deny a fee waiver request as long as the denial can be considered reasonable.” Allen v. Eagle Mtn., State Records Comm. Decision 2014-07 (Apr. 14, 2014), ¶7.
7. GRAMA allows a governmental entity to require payment of past fees and future estimated fees before beginning to process a request if fees are expected to exceed $50.00, but any prepaid amount in excess of fees due shall be returned to the requester. Utah Code § 63G-2-203(8).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, is DENIED.
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) and (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 its 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 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 25th day of April, 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARK ALLEN, Petitioner, v.
UTAH COUNTY COMMISSION. Respondent.
DECISION AND ORDER
Case No. 16-24
By this appeal, Petitioner, Mark Allen, seeks access to records held by Respondent, the Utah County Commission.
FACTS
In December 2015, Utah County held an “Employee Year-End Recognition Party” (“Party”) at the Utah Valley Convention Center. Among the invitees to the Party were public employees of Utah County. On February 17, 2016, Karen McCoy made a records request to the Utah County Commission ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”), requesting the following information concerning the Party:
1. Christmas attendance list of county employees.
2. Provide the email that was sent out to invite all employees to the county Christmas party. Including the email addresses of who was invited.
3. Provide a list of all 800+ who attended. [It’s] our understanding that a record was made of all who attended.
4. Provide a copy/list of all county employees who attended the County Christmas party and the email that was sent out inviting all county employees to the Christmas party by Lisa Nielsen.
5. Provide a copy of the Punchbowl Invitation used to invite participation.
6. Provide a copy of the check list of those who attended.
In response to Ms. McCoy’s request, the records officer responded by granting the invitation list and RSVP list; however the RSVP list included only the first names of the county employees “county employee electronic user name” classified private information under Utah Code 63G-2-302(2)(a) and 63G-2-302(2)(d) and are not provided in response to the request.
On March 4, 2016, Mr. Allen filed an appeal of the records officer’s decision with the Board of the Utah County Commissioners (“Board”), specifically requesting “the email addresses of all County Employees who were invited to the county party be provided.” The Board heard arguments from the parties on March 22, 2016, and with a vote of 2-1, the Board upheld the decision of the records officer. In a letter dated March 28, 2016, Larry A. Ellertson, Board Chair, stated that pursuant to Utah Code §§ 63G-2-302(2)(a), -301(2)(b), and -301(1)(b), a governmental entity is only required to provide a single email address “for the public to contact an employee or officer of the governmental agency.” Mr. Ellertson stated that “Utah County had designated utahcnty@utahcounty.gov as the business email address for County employees” and that this email address could be found on Utah County’s website. Mr. Ellertson further stated that “County email addresses are private records” under GRAMA, and that “[n]either Ms. McCoy nor Mr. Allen have established that they are entitled to access to private records.” The letter concluded that the “redaction of County employee usernames from the RSVP list was appropriate as an employee’s username is effectively that employee’s individual County email address.”
The Board’s decision to uphold the records officer’s decision was accompanied by a Dissenting Opinion by Board member William C. Lee. In a letter to Mr. Allen dated March 28, 2016, Mr. Lee stated that he disagreed with the Board’s decision based upon the following:
First, there is no expectation of privacy in an email address when a person chooses to work for the government and government provides that individual with a government email address. The purpose of a government employee is to serve the public; that is why government employment is referred to as “the public sector.” Second, many Utah County employees have business cards that contain their email addresses, work phone numbers, and, in some cases, their personal cell phone numbers. Third, if the county’s GRAMA appeals officers were correct in deeming county employees’ email address as private, then it makes no sense for Utah County to use a pattern in creating those employee email addresses that can be easily ascertained by outside parties. Lastly, the state of Utah and several municipalities, including Provo City, freely share their employees’ email addresses on their respective websites.
On April 7, 2016, Mr. Allen filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, on July 14, 2016, 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 § 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. Records concerning a current or former employee of, or applicant for employment with a governmental entity, are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a). However, private records under -302(2)(a) do not include records that are designated public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o).
3. Unless access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, the following records are public: “[T]he name, gender, gross compensation, job title, job description, business address, business email address, business telephone number…of a current or former employee or officer of the governmental entity.” Utah Code § 63G-2-301(2)(b). Undercover law enforcement personnel and investigative personnel “if disclosure could reasonably be expected to impair the effectiveness of investigations or endanger any individual’s safety” are excluded from this definition of public records. Utah Code § 63G-2-301(2)(b)(i) & (ii).
4. As used in Utah Code § 63G-2-301, “Business email address” is defined as a “single email address of a governmental agency designated for the public to contact an employee or officer of the governmental agency.” Utah Code § 63G-2-301(1)(b).
5. Counsel for Respondent argued that the definition of “business email address” provided in Utah Code § 63G-2-301(1)(b) authorizes Respondent to provide only one single email address for the public to contact employees or officers of Utah County, and allows Respondent to designate all other Utah County employees’ email address as private records pursuant to Utah Code § 63G-2-302(2)(b).
6. After hearing the arguments of the parties, reviewing the written arguments, and applicable statutes, the Committee finds Respondent’s arguments unpersuasive. The evidence presented instead shows that Respondent’s actual practice is to allow email addresses of Utah County employees to be used publically. For example, Board member William C. Lee noted in his dissent that business cards for Utah County employees “contain their email addresses, work phone numbers, and, in some cases, their personal cell phone numbers.” Counsel for respondent confirmed that county employees use their email account for internal communication, but also to communicate with members of the public. A Committee member noted that if the email addresses are private they could not be used to communicate with the public.
7. Accordingly, the Committee finds that Respondent’s actual practice and classification of Utah County employees’ email addresses is “public,” and that Respondent’s classification of all Utah County employees’ email addresses as “private” was an attempt to withhold public information from Ms. McCoy and Mr. Allen. Therefore, Respondent’s blanket classification of Utah County employees’ email addresses is found to be unsupported by the evidence before the Committee and GRAMA. The Committee determined that employees’ county email addresses are public with the exception of any email addresses subject to the restrictions found in Utah Code § 63G-2-301(2)(b)(i) & (ii). Respondent is therefore ordered to grant the present records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is GRANTED.
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 its 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 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 26th day of July 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRYAN THATCHER, Petitioner, v.
UTAH DEPARTMENT OF PUBLIC SAFETY. Respondent.
DECISION AND ORDER
Case No. 16-18
By this appeal, Petitioner, Bryan Thatcher, seeks access to records allegedly held by Respondent, the Utah Department of Public Safety (“Public Safety”).
FACTS
On May 11, 2016, the State Records Committee (“Committee”) held a hearing regarding Mr. Thatcher’s appeal. A previous hearing was held on April 14, 2016, where it was determined that the records responsive to Mr. Thatcher’s request were too numerous to review in their entirety during the hearing. The Committee voted to continue the hearing in order to allow sufficient time for the Committee members to review the disputed records. See, Thatcher v. Ut. Dept. of Pub. Safety, State Records Committee Order No. 16-13 (Apr. 25, 2016). After having reviewed the records in camera provided by Public Safety, the Committee now 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 and -304.
2. In the present case, Public Safety provided some documents to Mr. Thatcher pursuant to his records request, but denied access to other documents after classifying them as non-public records based upon statutory provisions found in GRAMA. After reviewing the records classified as non-public by Public Safety in camera, for ease of classification and discussion, the Committee categorized the records into the following fourteen groups and classified them as follows:
3. Group #1 consists of court records. Judicial records” are “public” records “unless a court orders the records to be restricted under the rules of civil or criminal procedure or unless the records are private under this chapter…” Utah Code Ann. § 63G-2-301(2)(f). Therefore, the Committee finds that these court records should be considered public records.
4. Group #2 consists of records of codes and policies for Public Safety. Generally, laws, administrative staff manuals, instructions to staff, and statements of policy are considered public records unless specifically exempt from disclosure under GRAMA. See, Utah Code §§ 63G-2-301(2)(a) and -301(3)(a). A review of the codes and policy records from Public Safety shows that they should be considered public records.
5. Group #3 consists of records of Public Safety’s actual internal affairs investigation and reporting, which included narrative and witness statements. Records created or maintained for civil, criminal, or administrative enforcement purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity if release of the records: (1) Reasonably could be expected to interfere with discipline or enforcement proceedings; (2) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government, and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source; or (3) Reasonably could be expected to disclose investigative techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement efforts. Utah Code § 63G-2-305(10)(b), (d), and (e). After reviewing the records in Group #3, the Committee finds that these records were properly classified by Public Safety as protected records pursuant to Utah Code § 63G-2-305(10)(b), (d), and (e).
6. Group #4 consists of summaries of the findings of the internal affairs investigations and the final executive summary. Final opinions, including concurring and dissenting opinions, and orders that are made by a governmental entity in an administrative, adjudicative, or judicial proceeding are public records except to the extent they contain information expressly permitted to be treated confidential. Utah Code § 63G-2-301(2)(c). A review of these records shows that they should be public records pursuant to Utah Code § 63G-2-301(2)(c) because they are the final findings of Public Safety’s investigators.
7. Group #5 consists of polygraph records. Records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data, are private records. Utah Code § 63G-2-302(1)(b). When considering the fact that a polygraph examination consists of monitoring a person’s vital signs and other physiological indicators in order to determine whether the person is being truthful, this information should be kept private pursuant to Utah Code § 63G-2-302(1)(b). Since Mr. Thatcher is the subject of the records, he should be allowed to have access to the records pursuant to Utah Code 63G-2-202(1)(a).
8. Group #6 consists of Drivers’ License records. The Utah Driver License Division of Public Safety (“Division”) may only disclose personal identifying information held by the Division when: (1) the Division determines it is in the interest of the public safety to disclose the information and in accordance with the Federal Driver’s Privacy Protection Act of 1994; (2) To a licensed private investigator holding a valid agency license, with a legitimate need; (3) An insurer, insurance support organization, or self-insured entity that issues motor vehicle insurance, for use in connection with claims, investigation activities, antifraud activities, rating, or underwriting for a licensed individual; or (4) A depository institution for use with the Federal Driver’s Privacy Protection Act of 1994. Utah Code § 53-3-109(1)(b) and (c). Mr. Thatcher does not qualify as a person who may receive Drivers’ License records from the Division, and therefore, the records were properly classified as non-public by Public Safety pursuant to Utah Code § 63G-2-201(3)(b) and (6)(a) (record to which access is governed or limited pursuant to another state statute).
9. Group #7 consists of records that could be characterized as initial contact reports. Initial contact reports are normally public records, unless they are expressly exempt from disclosure under GRAMA. Utah Code § 63G-2-301(3)(g). Accordingly, the Committee finds that the Group #7 records should be classified as public records.
10. Group #8 consists of incident reports and Group #9 consists of investigative notes. A review of these records shows that they are not initial contact reports, but are instead records that were created or maintained for civil, criminal, or administrative enforcement purposes, and/or for discipline, licensing, certification, or registration purposes, and should not be disclosed pursuant to Utah Code § 63G-2-305(10)(b), (d), and (e).
11. Group #10 consists of mixed types of correspondences, including letters, e-mails, memoranda, and text messages, in which Mr. Thatcher was a party to the correspondences. Although the records were properly classified as private pursuant to Utah Code § 63G-2-302(2)(d) (records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy), since Mr. Thatcher is the subject of the records, he should be allowed to have access to the records pursuant to Utah Code § 63G-2-202(1)(a).
12. Group #11 consists of “dissemination logs.” Since there is no statutory provision that appears to make these records non-public, these records should be classified as public records pursuant to Utah Code § 63G-2-201(2).
13. Group #12 consists of correspondences between Public Safety and their legal counsel. Records that are subject to the attorney client privilege are considered protected records if properly classified by the governmental entity pursuant to Utah Code § 63G-2-305(17).
14. Group #13 consists of all remaining correspondences not listed above. Since there is no statutory provision that appears to make these records non-public, these records should be classified as public records pursuant to Utah Code § 63G-2-201(2).
15. Group #14 consists of audio recordings of interviews of employees. These records were properly classified as private records pursuant to Utah Code § 63G-2-302(2)(d) and/or protected records pursuant to Utah Code § 63G-2-305(10)(b), (d), and (e). Since Mr. Thatcher is not the subject of the record is therefore not entitled to receive the records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Bryan Thatcher, is GRANTED in part and DENIED in part as detailed above.
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 its 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 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 20th day of May 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
RIVER HEIGHTS CITY, Respondent.
DECISION AND ORDER
Case No. 18-49
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, River Heights City.
FACTS
Mr. Eames claims to have made a records request, via email, to River Heights City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested records relating to any and all documentation of the penal bonds which have been issued, any and all documentation of the oaths of office, and any and all respective agreements relating to the Utah Local Governments’ Trust (“ULGT”).
No response was provided by Respondent, and an appeal was filed with the State Records Committee (“Committee”). Respondent argues that they have not received any records request from Mr. Eames.
After hearing oral argument and testimony from all the parties on November 8, 2018, and carefully considering the requested relief 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. Additionally, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are also considered non-public records. Utah Code § 63G-2-201(3)(b).
2. The chief administrative officer of each governmental entity shall make and maintain adequate documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the governmental entity designed to furnish information to protect the legal and financial rights of persons directly affected by the entity’s activities. Utah Code § 63A-12-103(4).
3. Utah Code § 10-3-819 provides that elected officials for municipalities to execute a bond with good and sufficient sureties payable to the municipality and the requirements for the bond. Any political subdivision may create and maintain a reserve fund or may jointly with one or more other political subdivisions, make contributions to a joint reserve fund “for the purpose of purchasing liability insurance to protect the cooperating subdivisions from any or all risks created by this chapter.” Utah Code § 63G-7-703(2).
4. Respondent provided testimony during the hearing that in order to comply with the requirements of Utah Code § 10-3-819, they have a contract with ULGT pursuant to Utah Code § 63G-7-703.
5. After having reviewed all written arguments and hearing testimony, the Committee finds Mr. Eames did submit a records request, but that said request went to an incorrect email address. In order to be granted, the request would need to be resubmitted in the proper manner.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is DENIED.
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.
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).
Entered this 20th day of November 2018
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
HELEN H. REDD, on behalf of MARC JENSON, Petitioner, v.
UTAH ATTORNEY GENERAL'S OFFICE. Respondent.
DECISION AND ORDER
Case No. 16-37
By this appeal, Petitioner, Helen H. Redd, legal counsel for Marc Jenson, seeks access to records allegedly held by Respondent, Utah Attorney General's Office.
FACTS
On or about April 7, 2016, Ms. Redd submitted six records requests to the Utah Attorney General's Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). On May 2, 2016, Ms. Redd submitted twelve additional records requests, and on June 8, 2016, four more records requests were submitted.
On May 13, 2016, Respondent informed Ms. Redd that due to extraordinary circumstances, it was extending the time to respond to Ms. Redd's outstanding requests pursuant to Utah Code § 63G-2-204(5)(d) and (e). At the time, Respondent estimated that it would be able to provide an initial response to each of the requests by June 1, 2016, but explained that it would provide an updated time estimate by that date if additional time was needed. On June 1, 2016, Respondent informed Ms. Redd that a further extension of time was necessary pursuant to Utah Code § 63G-2-204(5)(d) and (e). Ms. Redd administratively appealed the Respondent's claim of extraordinary circumstances, and Parker Douglas, General Counsel for Respondent affirmed the determination of extraordinary circumstances.
Ms. Redd filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 8, 2016, now 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. As soon as reasonably possible, but no later than ten business days after receiving a written request, or five business days after receiving a written request if the requester demonstrates that expedited response to the record request benefits the public rather than the person, the governmental entity shall respond by approving the request, denying the request or notifying the requestor that because of extraordinary circumstances it cannot immediately approve or deny the request. Utah Code § 63G-2-204(3)(a) and (b).
3. A request for voluminous quantity of records “extraordinary circumstances” that allow a governmental entity to delay approval or denial by an additional period of time if the governmental entity determines that due to the extraordinary circumstances it cannot respond within the time limits provided. Utah Code § 63G-2-204(5)(c).
4. If a governmental entity claims extraordinary circumstances and specifies the date when the records will be available, and, if the requester believes the extraordinary circumstances do not exist or that the date specified is unreasonable, the requester may appeal the governmental entity's claim of extraordinary circumstances or date for compliance to the chief administrative officer by filing a notice of appeal with the chief administrative officer within 30 days after notification of a claim of extraordinary circumstances by the governmental entity, despite the lack of a "determination" or its equivalent. Utah Code § 63G-2-401(1)(b).
5. At the hearing, Respondent argued that it is currently working on complying with Petitioners’ GRAMA request, claiming that the request was voluminous constituting extraordinary circumstances.
6. The Committee having reviewed Ms. Redd's records requests, and the arguments and testimony of the parties, finds that Respondent presented sufficient evidence to show that the claim for extraordinary circumstances was appropriate pursuant to Utah Code §§ 63G-2-204(5)(c) and -204(6)(c)(iv)(B).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Helen H. Redd, legal counsel for Marc Jenson, is hereby DENIED as detailed above.
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 its 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 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 19th day of September 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NATE CARLISLE on behalf of SALT LAKE TRIBUNE, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 16-21
By this appeal, Petitioner, Nate Carlisle, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office (“AG’s Office”).
FACTS
On April 14, 2016, the State Records Committee (“Committee”), held a hearing and heard oral arguments from the parties. During the deliberation phase of the hearing, a motion was made to review the disputed records in camera. When it was determined that the records were too numerous to review in their entirety during the hearing on this matter, the Committee voted unanimously to continue the hearing to a later date in order to allow sufficient time for Committee members to review the disputed records. See, Carlisle v. Utah Attorney Gen. Office, State Records Committee Case No. 16-14 (April 25, 2016). After having reviewed the records, considering all arguments by the parties, and holding a second hearing on May 12, 2016, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. An in camera review of the records provided by the AG’s Office responsive to Petitioner’s records request, shows that a portion of the records includes those that were previously requested by Petitioner in Carlisle v. Utah Attorney Gen. Office, State Records Committee Case No. 15-17 (May 26, 2015). The records request made in the previous case was for “[a]ll incoming and outgoing correspondence concerning Cameron Noel originating in 2014 or 2015 including, but not limited to, letters, emails, text messages, and instant messaging programs” and “[t]he letter deputizing Troy Rawlings to consider criminal charges against Cameron Noel and any related instructions to Mr. Rawlings.” The records request in the present case was for:
[A]ll documents related to any criminal investigations of Beaver County Sheriff Cameron Noel conducted in 2014 or 2015, including, but not necessarily limited to, police reports, witness statements, forensic reports, search warrant applications and returns, subpoenas and similar documents you may have received from other law enforcement agencies.
2. In response to a request for a record, a governmental entity is not required to fulfill a person’s records request if the request unreasonably duplicates prior records requests from that person. Utah Code § 63G-2-201(8)(a)(iv). The AG’s Office segregated the records out that had been provided previously to the Committee from the prior hearing. See, Carlisle v. Utah Attorney Gen. Office, State Records Committee Case No. 15-17 (May 26, 2015). The Committee’s decision in Case No. 15-17 was appealed by the AG’s Office to the 3rd District Court, in Salt Lake County, Utah, Case No. 150904266, and the appeal is still under consideration by the Court. Accordingly, the Committee finds that it does not have jurisdiction to reconsider the AG’s Office classification of records reviewed by the Committee in Case No. 15-17.
3. The Government Records Access and Management Act (“GRAMA”) generally specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are private, controlled, or protected under GRAMA, or to which access is restricted pursuant to a court rule, another state statute, federal statute, or federal regulation, are not public records. Utah Code § 63G-2-201(3).
4. Administration staff manuals, instructions to staff, and statements of policy, are normally considered public records but to the extent that the records is expressly exempt from disclosure by GRAMA or otherwise restricted. Utah Code § 63G-2-301(3)(a). A review of the requested records shows that they include policy manuals, which should be considered public records pursuant to Utah Code § 63G-2-301(3)(a), and therefore, should be disclosed by the AG’s Office to Petitioner.
5. Records that are created or maintained for civil, criminal, or administrative enforcement purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by the governmental entity, if release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; (2) Reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; or (3) Could create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(a), (b), and (c).
6. The AG’s Office argued that many of the records that are responsive to Petitioner’s request fall within the three categories of protected records listed in Utah Code § 63G-2-305(10)(a), (b), and (c). Counsel argued that the records came to the AG’s Office from county law enforcement agencies. Additionally, an affidavit from Michelle W. Pickens, a Special Agent with the Federal Bureau of Investigation (“FBI”), states that the FBI “has an open and ongoing Civil Rights Investigation of Beaver County Sheriff Cameron Noel” and that “disclosure of any information in this matter would significantly risk and jeopardize the integrity of our investigation and its effectiveness.”
7. After having reviewed the records in camera, the Committee finds that the records that were not part of the Case No. 15-17 records request or the policy manuals in the current records request, were properly classified by the Utah AG’s Office as protected records pursuant to Utah Code § 63G-2-305(10)(a), (b), and (c). Law enforcement and prosecutors have the ability to restrict access to records that could reasonably be expected to interfere with investigations, proceedings, and/or trials.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nate Carlisle, is 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 its 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 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 May 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRITT MILLER, Petitioner, v.
UTAH TRANSIT AUTHORITY, Respondent.
DECISION AND ORDER
Case No. 17-11
By this appeal, Petitioner, Britt Miller, seeks access to records allegedly held by Respondent, the Utah Transit Authority (“UTA”).
FACTS
On a form dated November 1, 2016, Mr. Miller made a request to UTA for records pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Miller requested “[a]ll materials and information provided by [the] Labor Relations Institute (LRI).” Mr. Miller stated that he would like to receive copies of the documents, and understood that he was responsible for the costs for providing the documents. In a letter dated November 9, 2016, Michelle Larsen, Senior Records Officer for UTA, denied Mr. Miller’s request finding that materials and information purchased by UTA from LRI are copyrighted materials and therefore, do not constitute records under GRAMA.
Mr. Miller filed an appeal of Ms. Larsen’s denial with Jerry Benson, President and CEO of UTA. Mr. Miller argued in the appeal that "[c]opyrights restrict UTA from copying and distributing copyrighted material. Under copyright laws, I am allowed to review the material, however I cannot make a copy of the material. I request that UTA allow me to review the requested material at the UTA offices." In a letter dated December 15, 2016, Mr. Benson denied Mr. Miller’s appeal, finding that “UTA believes that the copyrighted materials purchased are not a record under GRAMA.”
On January 11, 2017, Mr. Miller filed an appeal with the State Records Committee (“Committee”). On March 16, 2017, the Committee held a hearing where the parties were allowed to present their legal arguments. After considering all arguments by the parties and reviewing all written materials, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA defines a “record” as a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics: (1) That is prepared, owned, received, or retained by a governmental entity or political subdivision, and (2) Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a).
2. GRAMA also states that a “record” does not mean “material to which access is limited by the laws of copyright or patent unless the copyright or patent is owned by a governmental entity or political subdivision.” Utah Code § 63G-2-103(22)(b)(iv).
3. Under GRAMA, a record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). Non-public records include records that are private, controlled, or protected as designated by GRAMA, and records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation. Utah Code § 63G-2-201(3).
4. GRAMA specifies that every 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 subject to Utah Code § 63G-2-203 and Utah Code 63G-2-204. Utah Code § 63G-2-201(1). Disclosure of a record to which access is governed or limited pursuant to court rule, another state statute, federal statute, or federal regulation, is governed by the specific provisions of that statute, rule, or regulation. Utah Code § 63G-2-201(6)(a). GRAMA applies to those records insofar as GRAMA is not inconsistent with the statute, rule, or regulation. Utah Code § 63G-2-201(6)(b).
5. Counsel for UTA argued that since the records requested are subject to copyright laws, they are not records pursuant to Utah Code § 63G-2-103(22)(b)(iv), and therefore, there is no requirement for UTA to provide access to the records pursuant Utah Code § 63G-2-201(1). Counsel stated that under 17 U.S.C. § 106(3), the owner of the copyright has the exclusive right to do and to authorize distribution of copies of the copyrighted work to the public by “sale or other transfer of ownership, or by rental, lease, or lending.” Counsel cited to the United States 10th District Court of Appeals who stated that copyright law “explicitly protects the copyright owner’s exclusive right to distribute copies by lending.” Diversey v. Schmidly, 738 F.3d 1196, 1202 (10th Cir. 2013).
6. Counsel for Mr. Miller countered that “[c]opyright does not restrict information from dissemination. Copyright restricts UTA from copying and distributing copyrighted material.” Counsel stated that “even if the requested material is copyrighted, that does not mean it is not subject to disclosure. It is within the boundaries of the copyright laws that this material be reviewed and inspected.”
7. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee is unconvinced that Federal copyright law restricts UTA from providing access to the requested records to Mr. Miller. Copyright law restricts copying, distributing, and lending of records, but does not restrict viewing of records. As stated by the Committee previously:
Copyrighted material maintained by the State or any of its agencies is not automatically excluded as being a record under GRAMA. The provision excluding copyrighted material includes provisions that it is not a record if access to the material held by the public entity is limited by copyright. [United Television, Inc. v. Utah Bd. of Pardons and Parole, State Records Comm. Case No. 94-13 (Oct. 11, 1994), ¶3]
Accordingly, the Committee finds that the requested records are records under GRAMA because copyright law does not prevent access to the records and Mr. Miller has the right to inspect the records pursuant to Utah Code § 63G-2-201(1).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Britt Miller, is GRANTED allowing access to the requested records as detailed above.
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 its 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 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 27th day of March 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL CLÁRA, Petitioner, v.
UTAH TRANSIT AUTHORITY. Respondent.
DECISION AND ORDER
Case No. 16-31
By this appeal, Petitioner, Michael Clára, seeks access to records allegedly held by Respondent, the Utah Transit Authority.
FACTS
On August 11, 2016, the State Records Committee (“Committee”), held a hearing and heard oral arguments from the parties. During the hearing, it was determined that in order to properly review in camera the numerous disputed records, more time would be needed for the Committee members. Accordingly, a motion was made and sustained unanimously by the Committee to continue the present case until the next regularly scheduled Committee hearing to allow an in camera review of the documents prior to a determination of the records classifications. Neither party objected to the continuance. Accordingly, IT IS ORDERED THAT:
ORDER
The hearing is CONTINUED until the next regularly scheduled Committee hearing to allow the Committee members to review the disputed records in camera.
Entered this 22nd day of August 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROGER BRYNER, Petitioner, v.
CLEARFIELD CITY, Respondent.
DECISION AND ORDER
Case No. 16-44
By this appeal, Petitioner, Roger Bryner, seeks access to records held by Respondent, Clearfield City.
FACTS
This appeal is with regard to four separate GRAMA requests as follows:
1. On June 6, 2016, Petitioner requested records from and about a certain specific facsimile/printer machine used by the Clearfield City Police Department, including purchase receipts, the user manual and service records for the machine; a usage log; and a representative sample of electronic and paper documents when the machine receives or sends a document.
2. On June 9, 2016, Petitioner requested, “1) all emails from anyone or to anyone or between people at Clearfield City involving [Petitioner] covering the time period from 7-10-15 to [June 9, 2016]. 2) all other communications from anyone to anyone or
between people at Clearfield City involving [Petitioner].”
3. On June 21, 2016, Petitioner requested the configuration settings of a webpage mentioned in the user manual of a certain printer of the Respondent, a printout directory in the archive destination of the printer, and a printout of emails from a facsimile machine of the Respondent.
4. On July 7, 2016, Petitioner requested the activity log related to a specific printer/facsimile machine.
Respondent timely responded to the Petitioner’s record requests. The Respondent advised Petitioner that certain requested records do not exist, but with regard to the records that do exist, the Respondent either provided the requested documents without redactions, provided the requested records with redactions, or notified the Respondent the requested record existed but would not be disclosed, all in accordance with the applicable provisions of GRAMA as identified by the Respondent.
The Petitioner appeals the redactions and nondisclosure of records made by the Respondent. Those redactions are broadly set forth as follows:
In response to Petitioner’s June 6, 2016, record request the Respondent redacted names of individuals, dates of birth, driver’s license numbers and social security numbers, as private records in accordance with Utah Code Ann. § 63G-2-303(1)(i)(j) and § 63G-2-303(2)(d), that were on the requested representative sampler of documents from the printer/facsimile machine.
In response to the Petitioner’s June 9, 2016, record request the Respondent made redactions to some of the requested records on the basis that certain portions were private pursuant to Utah Code Ann. § 63G-2-302(2)(d); that certain portions of the requested records were attorney client privileged and protected pursuant to Utah Code Ann. § 63G-2-305(17)(18), and (23) and the “Common Interest” privilege set forth in Utah R. Evid. 504(b), and the Utah Uniform Mediation Act found at Utah Code Ann. § 78B-10-104.
In response to the Petitioner’s June 21, 2016, record request the IP address was redacted as a protected record pursuant to Utah Code Ann. § 63G-2-305(12).
In response to the Petitioner’s July 7, 2016, record request there were no redactions as the records requested by Petitioner do not exist.
The Petitioner’s appeal was initially heard on October 13, 2016, by the State Records Committee (the “Committee”), where the parties were allowed to present their legal arguments. The Respondent provided the Committee with redacted and un-redacted copies of records, which both parties requested be reviewed by the Committee in camera. Due to the volume of records and the time needed for such review the parties agreed to have this matter continued to November 10, 2016, so the Committee could review the records.
During the month continuance, the Committee did review the un-redacted and redacted copies of the records in camera, and on November 10, 2016, reconvened the hearing of the Petitioner’s appeal, at which time the Committee went in camera to finalize its review of the records. Upon reconvening the public hearing of this matter, and after considering all arguments by the parties, both oral and written, and specifically with regard to the attorney client privileged redactions and the “common interest doctrine”, the Committee now 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 provide by statute” Utah Code Ann. § 63G-2-201-(2). Records that are private, controlled, or protected under Utah Code §§ 63G-2-302, -303, -304 or -305, are not public records. Utah Code Ann. § 63G-2-201(3)(a).
2. The names of individuals, their driver’s licenses, dates of birth and social security numbers that were on the randomly selected records from the facsimile/printer machine at the Clearfield City Police Department were properly redacted as private records pursuant to Utah Code Ann. §§ 63G-2-302(1)(i)(j) and 63G-2-302(2)(d).
3. The IP address was properly redacted as a protected record pursuant to Utah Code Ann. § 63G-2-305(12).
4. Records containing communications between and amongst attorneys and their clients including all records reasonably subject to the common interest doctrine or subject to the privilege provided by Utah R. Evid. 504(b), were properly classified as protected records pursuant to Utah Code Ann. § 63G-2-305(17),(18), and (23) and the “Common Interest” privilege set forth in Utah R. Evid. 504(b).
5. Any and all other redacted records, not specifically set forth herein, that were subject to this appeal, were accurately classified by the Respondent.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, is hereby DENIED as detailed above.
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 Ann. § 63G-2-404, and 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 Ann. § 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 Ann. § 63G-2-404(1) and (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 Ann. § 63G-2-404(6). 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(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 $500.00 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 Ann. § 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 Ann. § 63G-2-403(15)(d)(ii).
ENTERED this 22nd day of November, 2016.
BY THE STATE RECORDS COMMITTEE
_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MIKE FAVERO, Petitioner, v.
LOGAN CITY SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 20-07
By this appeal, Petitioner, Mike Favero, seeks access to records held by Respondent, the Logan City School District.
FACTS
On October 1, 2019, Mr. Favero submitted a records request to the Logan City School District (“District”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Favero requested from January 1, 2019 to October 1, 2019 “any and all legal expenses” the District had paid, which legal firms had been paid, how many hours were billed, and “any other information you have in regards to any legal expenses.”
On October 15, 2019, Jeff Barben, Records Officer for the District, responded with an e-mail message to Mr. Favero stating that the “records you requested are attached.” However, the records sent to Mr. Favero redacted the descriptions of services provided by a law firm. On November 7, 2019, Mr. Favero filed an appeal with the Superintendent of the District, Frank Schofield. Superintendent Schofield responded on November 14, 2019, stating that the information sent to Mr. Favero had been redacted because it was subject to the attorney client privilege.
On November 30, 2019, Mr. Favero filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 9, 2020 and carefully considering the requested relief 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. Records that are subject to the attorney client privilege are protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(17). The attorney client privilege protects information given by a client to an attorney that is necessary to obtain informed legal advice which might not have been made absent the privilege. S. Utah Wilderness Alliance v. Auto. Geographic Reference Ctr., 2008 UT 88, ¶ 32, 200 P.3d 643, 654, following Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990).
3. Legal counsel for the District noted in his statement to the Committee that the District “acknowledges that its original redactions of the [law firm] invoices swept too broadly.” However, specific portions of the description of work were still redacted because “the description of work [is] properly within the scope of the attorney-client privilege and therefore are protected.”
4. After considering the arguments of the parties and reviewing the disputed records in camera, the Committee finds that the descriptions of services provided by the law firm within the invoices for Respondent are not protected by the attorney client privilege. A review of them show that they do not appear to be legal advice from an attorney to a client. The present case is very similar to a previous case where the Committee similarly found that legal invoices provided to a governmental entity did “not contain legal advice, analysis or discussion of confidential or privileged communication between an attorney and a client that would be protected by the attorney-client privilege.” See, Johnson v. Salt Lake City Dept. of Pub. Util., State Records Committee Case No. 09-11 (Aug. 24, 2009) ¶3. Accordingly the Committee finds that the invoices should be provided to Mr. Favero unredacted.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mike Favero, is hereby GRANTED.
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.
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).
Entered this 21st day of January 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 19-21
By this appeal, Petitioner, Eric Peterson, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.
FACTS
On April 23, 2019, Mr. Peterson filed an appeal with the State Records Committee (“Committee”), of a denial notice from Tyler Green, Solicitor General, for the Utah Attorney General’s Office dated March 29, 2019. The parties appeared before the Committee for a hearing on June 13, 2019 in person and by telephone. At the hearing, the parties jointly requested a continuance of the appeal in order to allow time for the parties to settle the case. The parties again appeared before the Committee for a hearing on July 11, 2019 on the matter of the investigation report. At the hearing, the parties again jointly requested a continuance of the appeal as it relates to the investigation report.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is CONTINUED until the next scheduled Committee hearing.
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.
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).
Entered this 22nd day of July 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ELIAS FARACLAS, Petitioner, v.
LEHI CITY Respondent.
DECISION AND ORDER
Case No. 19-20
By this appeal, Petitioner, Elias Faraclas, seeks access to records allegedly held by Respondent, Lehi City.
FACTS
On or about February 12, 2019, Mr. Faraclas made a records request to Lehi City (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Faraclas requested the TMTH Development Agreement and all records relating to the Agreement between January 16, 2018 and the signing of the Agreement.
On February 21, 2019, Respondent granted the request, in part, providing some records, and denied the remainder indicating that they were protected under GRAMA pursuant to Utah Code § 63G-2-305(22). On February 28, 2019, Respondent provided additional records, but denied the draft of the Development Agreement indicating that it is protected under GRAMA pursuant to Utah Code § 63G-2-305(22)
In an email dated March 14, 2019, Mr. Faraclas appealed the denial to the City Administrator indicating that the response was an “inadequate and incomplete response.” In a letter dated March 28, 2019, the City Administrator provided Mr. Faraclas with additional records that were found responsive to his request, but that “[n]one of the additional records … have been denied as being classified as private, controlled, or protected.”
Thereafter, Mr. Faraclas filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having reviewed the records in camera and having heard oral argument and testimony on July 11, 2019, 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 §63G-2-201(2). Records that are private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Drafts are protected records if properly classified by a governmental entity and are not otherwise classified as public records. Utah Code § 63G-2-305(22).
3. During the hearing, Petitioner argued that the drafts of the Development Agreement are “unquestionably” public records, and that even if the records were properly classified as protected, the public interest outweighed the classification. Utah Code § 63G-2-201(5)(b).
4. “… [T]he State Records Committee may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private, controlled, or protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b).
5. After having reviewed the written arguments of the parties, reviewing the records in camera and hearing testimony and arguments at the hearing, the Committee finds that Respondent did not present a persuasive argument as to why the draft Development Agreement should be classified as protected, and that, even if the records are drafts, the public interest outweighs the interest in restricting access.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Elias Faraclas, is GRANTED.
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.
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).
Entered this 22nd day of July 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DANIEL MCMANN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 19-30
By this appeal, Petitioner, Daniel McMann, seeks access to records allegedly held by Respondent, the Utah Department of Corrections.
FACTS
In January 2019, Mr. McMann made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. McMann requested “a police report and assault charges on [a specific person] … along with [a specific person’s] plea agreement.”
On or about June 6, 2019, Mr. McMann filed a fee waiver appeal with the State Records Committee (“Committee”), of a denial notice from Deputy Director Hudspeth, for the Utah Department of Corrections dated May 16, 2019. UDC requested prepayment and the petitioner requested a fee waiver which the government denied. The parties appeared before the Committee for a hearing on September 12, 2019 in person and by telephone. At the hearing, Utah Department of Corrections agreed that they look at additional information the petitioner could provide, since he was incarcerated out of state. The Committee determined that the matter would need to be continued for further documentation and analysis.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Daniel McMann, is CONTINUED until the next scheduled Committee hearing.
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.
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).
Entered this 23rd day of September 2019.
BY THE STATE RECORDS COMMITTEE
__________________________________________
TOM HARALDSEN, Chair
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CATHRYN RAPHAEL CORDRAY, Petitioner, v.
SEVEN COUNTY INFRASTRUCTURE COALITION, Respondent.
DECISION AND ORDER
Case No. 20-05
By this appeal, Petitioner, Cathryn Raphael Cordray, seeks access to records held by Respondent, the Seven County Infrastructure Coalition.
FACTS
On July 30, 2019, Ms. Cordray submitted a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Cordray requested records relating to the Uinta Basin Railroad Project. Respondent did not send Ms. Cordray a timely response to her records request. On August 10, 2019, Ms. Cordray submitted an appeal to Michael J. McKee, Executive Director for Respondent based upon Respondent’s “response to an unanswered and or denied GRAMA request.”
In a letter dated August 13, 2019, Mr. McKee granted in part and denied in part, Ms. Cordray’s appeal, providing copies of two of the requested studies regarding the Uintah Basin Railroad Project, but denying access to the “Private Energy Producer 2017 Uintah Basin Railroad Study.” Mr. McKee stated that this study was classified as a protected record pursuant to Utah Code § 63G-2-305(1) & (2).
Ms. Cordray filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 9, 2020 and carefully considering the requested relief of the parties, the Committee 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 § 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. Trade secrets as defined in Utah Code § 13-24-2, are protected records if properly classified by a governmental entity if the person submitting the trade secret has provided the governmental entity with the information specified in Utah Code § 63G-2-309. Utah Code § 63G-2-305(1).
3. Commercial information or nonindividual financial information obtained from a person are protected records if properly classified by a governmental entity if: (1) Disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future; (2) The person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and (3) The person submitting the information has provided the governmental entity with the information specified in Utah Code § 63G-2-309. Utah Code § 63G-2-305(2).
4. Utah Code § 63G-2-309(1)(a)(i) requires the person who believes that the record should be protected under either Utah Code § 63G-2-305(1) or (2) to provide with the record: (1) A written claim of business confidentiality; and (2) A concise statement of reasons supporting the claim of business confidentiality.
5. Respondent provided a copy of a Mutual Confidentiality and Non-Disclosure Agreement between Respondent and the “Private Energy Producer” that provided the requested Uintah Basin Railroad Study to Respondent. The Agreement stated that the Private Energy Producer claims business confidentiality under both Utah Code § 63G-2-305(1) and (2) because disclosure of the Agreement would reveal “trade secrets and confidential commercial information the disclosure of which could reasonabl[y] be expected to result in harm or injury to the competitive interests” of the Producer. Respondent’s counsel argued that the study was provided to Respondent based upon the promise that it would be classified and maintained as confidential and protected, without which Respondent “would [n]ever have received a copy of the private rail study.” Additionally, Respondent noted that the study had not been funded by public funds.
6. Having reviewed the written and oral arguments provided to the Committee, the Committee finds that the Agreement between Respondent and the Private Energy Producer complies with the requirements of Utah Code § 63G-2-308. Accordingly, the Committee finds that Respondent properly classified the “Private Energy Producer 2017 Uintah Basin Railroad Study” as a protected record pursuant to Utah Code § 63G-2-305(1) & (2).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Cathryn Raphael Cordray, is hereby DENIED.
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.
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).
Entered this 21st day of January 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TRACY TAYLOR, Petitioner, v.
WASATCH COUNTY SCHOOL DISTRICT Respondent.
DECISION AND ORDER
Case No. 16-43
By this appeal, Petitioner, Tracy Taylor, seeks access to records allegedly held by Respondent, the Wasatch County School District (“District”).
FACTS
On July 18, 2016, Tracy Taylor made a request for records from the District pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Taylor requested:
All applications filed with the [District] for the superintendent’s position awarded June-July 2016. Identify the top four candidates of those applicants. ALL names of people assigned to the citizen’s committee to review applications for the supervisor’s position. School board’s evaluation process and documents. Identify the process followed for selection- job description of selection committee, who was interviewed, second interview [sic] who visited the school district, etc.
The District denied the request on July 26, 2016, stating that the requester is not authorized to have access to the documents pursuant to Utah Code § 63G-2-302.
Ms. Taylor filed an appeal of the decision with the District’s chief administrative officer, Superintendent Paul Sweat, who delegated the appeal to the District’s Human Resource Director, James Judd. In a letter sent on August 3, 2016, Mr. Judd granted the appeal in part, and denied the appeal in part. He provided copies of the documents regarding the School Board’s (“Board”) evaluation process and referred to the District’s website for access to a copy of a recording of the Board’s work session held on May 5, 2016.
The District pursuant to Utah Code §§ 63G-2-302(1)(g) and -302(2) denied access to: (1) [a]ll applications filed with the District for the superintendent position…, (2) [a]ll the names of the people assigned to the citizen’s committee to review applications for the superintendent’s position, and (3) the process of selecting the citizen’s committee. Ms. Taylor filed an appeal of this decision with the State Records Committee (“Committee”). On October 13, 2016, a hearing was before the Committee and the parties presented their legal arguments. After considering all arguments by the parties, the Committee now 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 private, controlled, or protected under Utah Code §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a). In enacting GRAMA, the Utah Legislature recognized the constitutional right of the public to have access to information concerning the conduct of the public’s business. Utah Code § 63G-2-102(1)(a).
2. In the present case, Ms. Taylor is seeking access to records concerning the selection of the Superintendent of the Wasatch School District. Ms. Taylor argued that the public has a right to know the process and the applicants considered for such an important community position, and that records detailing the process should be made public. For example, Ms. Taylor stated that the public has a right to know the names and qualifications of applicants for the District’s Superintendent position.
3. The Committee having reviewed the written and verbal arguments of the parties is convinced by Ms. Taylor’s argument that the public has the right to know the selection process of the Superintendent of the District. Applications for the District’s Superintendent position are public to the extent they contain the name and qualifications of the applicants. The disclosure of private information such as an individual’s home address, home telephone number, and personal status information such as race, religion, or disabilities, shall be redacted from the applications pursuant to Utah Code §§ 63G-2-302(1)(g) and (2)(a).
4. Any records concerning the citizens’ selection committee and/or disclosure of the Superintendent selection process should also be disclosed as a public record. However, pursuant to Utah Code § 63G-2-201(8)(a)(i) the District is not required to create any records to satisfy the records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Tracy Taylor, is 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 its 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 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 24th day of October 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JAMES DURAN, Petitioner, v.
UTAH DEPARTMENT OF HUMAN SERVICES Respondent.
DECISION AND ORDER
Case No. 16-45
By this appeal, Petitioner, James Duran, seeks access to records allegedly held by Respondent, the Utah Department of Human Services (“DHS”).
FACTS
In a letter dated January 12, 2016, Mr. Duran made a request for records pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to the Millcreek Youth Center in Ogden, Utah. Theresa M. Oram, the Records Officer for Utah Division of Juvenile Justice Services, denied Mr. Duran’s records request in a letter dated January 27, 2016. Ms. Oram stated that the requested records could not be disclosed because they had been classified as private and controlled records under GRAMA. Ms. Oram further stated that Mr. Duran had a right to appeal the denial to Sonia Sweeney, Chief Administrative Officer of DHS “within thirty (30) days of the date of this denial.”
In a document dated April 20, 2016, Mr. Duran filed an appeal with Ms. Sweeney. In a letter dated May 11, 2016, Ms. Sweeney dismissed Mr. Duran’s appeal as untimely pursuant to Utah Code § 63G-2-401, stating that the appeal “was filed well over 30 days.” Mr. Duran filed an appeal of DHS’s dismissal with the Committee. On October 13, 2016, a hearing was before the State Records Committee (“Committee”), but because of an unexpected circumstance, assigned legal counsel for DHS was unable to attend the hearing to argue on behalf of DHS. See, Duran v. Utah Dept. of Human Services, State Records Committee Order 16-40 (Oct. 24, 2016). The Committee ordered a continuance of the matter to the next available hearing date. Id. On November 10, 2016, the Committee held a hearing where the parties were allowed to present their legal arguments to determine whether the Committee could still hear Mr. Duran’s appeal even though it was filed untimely. After considering all arguments by the parties and reviewing all written materials, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A requester or interested party may appeal an access denial to the chief administrative officer of the governmental entity by filing a notice of appeal with the chief administrative officer within 30 days after: (1) The governmental entity sends a notice of denial under Utah Code § 63G-2-205, if the governmental entity denies a request under -205(1); or (2) The record request is considered denied under Utah Code § 63G-2-204(8) if that subsection applies. Utah Code § 63G-2-401(1).
2. Ms. Oram’s denial letter of Mr. Duran’s records request was dated January 27, 2016. The date on the document filed by Mr. Duran with DHS appealing Ms. Oram’s denial was April 20, 2016. Mr. Duran acknowledged that his appeal was filed more than thirty days after Ms. Oram’s denial, but argued that the lateness of his appeal should be allowed due to “excusable neglect.”
3. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds Mr. Duran’s appeal with DHS was untimely pursuant to Utah Code § 63G-2-401(1). The appeal was filed well beyond thirty days after the date Ms. Oram sent notice of the denial, and the Utah Code does not provide a mechanism to enlarge the appeal period due to the “excusable neglect” of the requester or an interested party. Accordingly, the decision of DHS to dismiss Mr. Duran’s appeal as untimely is upheld.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, James Duran, is not timely, and is therefore DENIED.
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 its 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 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 22nd day of November 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ALEX STUCKEY on behalf of SALT LAKE TRIBUNE, Petitioner, v.
UTAH STATE UNIVERSITY. Respondent.
DECISION AND ORDER
Case No. 17-04
By this appeal, Petitioner, Alex Stuckey, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah State University (“USU”).
FACTS
On or about September 9, 2016, Ms. Stuckey filed a request for records from USU pursuant to the Government Records Access and Management Act (“GRAMA”). The request stated that USU President Stan Albrecht had asked for an inquiry “into recent allegations of sexual assaults in the campus community.” The request stated that USU would implement a number of procedures following the recommendations from the inquiry including areas identified for improvement. Ms. Stuckey requested all records “used to aid in any oral presentation of the inquiry, its findings and recommendations,” all records “that resulted in the recommendation and inquiry summary” released by USU on August 24, 2016, and “any and all video or audio recordings of the oral presentation of the inquiry, its findings and recommendations.”
Ms. Stuckey’s request for records was denied by USU resulting in an appeal being filed with the State Records Committee (“Committee”). See, Stuckey v. Utah St. Univ., State Records Committee Case No. 17-01 (January 24, 2017). On January 12, 2017, a hearing was before the Committee where the parties were allowed to present their legal arguments. A motion was made by a Committee member to review the disputed records in camera. After a determination that the volume of records would make it difficult for the Committee to review the records during the hearing, the Committee voted unanimously to continue the hearing to a later date. Id. After having reviewed the disputed records in camera, the Committee held an open hearing on February 9, 2017, and issues the following Decision and Order:
STATEMENT OF REASONS FOR DECISION
1. The Utah 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Records to which access is restricted pursuant to court rule, federal statute, or federal regulation, are not public records. Utah Code § 63G-2-201(3)(b). The disclosure of a record to which access is governed or limited pursuant to court rule, federal statute, or federal regulation, is governed by the specific provisions of that statute, rule, or regulation. Utah Code § 63G-2-201(6)(a). GRAMA applies to records described in -201(6)(a) insofar as GRAMA is not inconsistent with the statute, rule, or regulation. Utah Code § 63G-2-201(6)(b).
3. Utah Code § 63G-2-107(2) states that the disclosure of an education record as defined in the Family Educational Rights and Privacy Act (“FERPA”) that is controlled or maintained by a governmental entity “shall be governed” by FERPA. The Utah Court of Appeals found in Bryner v. Canyons Sch. Dist., 2015 UT App 131, 351 P.3d 852, that a “plain reading of FERPA’s statutory language reveals that Congress intended for the definition of education records to be broad in scope.” Bryner, 2015 UT App 131, ¶ 20, 351 P.3d at 857.
First, to qualify as an education record, the record must contain information directly related to a student. Information is directly related to a student if it has a close connection to that student. Records therefore directly relate to a student if the matters addressed in the records pertain to actions committed or allegedly committed by or against the student and contain information identifying the student. [O]nce personally identifiable information is deleted, a record is no longer an education record since it is no longer directly related to a student. [Bryner, 2015 UT App 131, ¶ 21, 351 P.3d at 857-58, citations and quotation omitted]
4. A review of the disputed records in camera shows that many of the records should be considered “education records” pursuant to FERPA because they are records that “directly relate to a student” and pertain to “actions committed or allegedly committed by or against the student.” However, a review of the records also revealed that once “personally identifiable information is deleted,” the record is no longer an education record subject to FERPA because the record “is no longer directly related to a student.” Accordingly, the Committee finds that some records are subject to FERPA and cannot be ordered to be released by the Committee pursuant to Utah Code § 63G-2-107(2). However, some records can be redacted in a manner that allows the record to no longer be directly related to the student and therefore they are subject to release as a public record.
5. Counsel for USU argued that the documents should be considered protected records pursuant to Utah Code § 63G-2-305(17) & (18). Records that are subject to the attorney client privilege or records prepared by an attorney “for, or in anticipation of” litigation or administrative proceeding are protected records if properly classified by the governmental entity. Id. Counsel argued that the documents include “communications from USU’s legal counsel to her client the USU Board of Trustees.” Counsel stated that the inquiry into recent allegations of sexual assaults in the campus community, the recommendations for improvement, and the oral presentation of that information were completed by USU’s legal counsel.
6. Ms. Stuckey argued that the inquiry, the recommendations from the inquiry, and the presentation from the inquiry, are not covered by the attorney client privilege or by the attorney work product doctrine. Ms. Stuckey claimed that even though the inquiry was completed by legal counsel for USU, it was completed in order for USU to follow federal mandates requiring colleges and universities to act responsibly in the interest of the safety of its students. Ms. Stuckey stated that other taxpayer funded institutions have released similar summaries and findings to the public.
7. The present case is very similar to S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 643, 200 P.3d 643 (“SUWA”). In that case, a records request pursuant to GRAMA was made for all records concerning certain routes over public lands in Emery County including maps and GIS data. The Committee and district court found that the documents were private and protected because “they were work product prepared in anticipation of litigation.” SUWA, ¶11, 200 P.3d at 649. The Utah Supreme Court reversed the Committee and the district court decision, finding that the records were not protected by the attorney work product doctrine or were considered attorney-client privileged communications under GRAMA because the “records [were] created in the ordinary course of its business pursuant to its statutory mandates. Their mere use in litigation does not render them exempt under GRAMA.” SUWA, ¶ 26, 200 P.3d 652-653.
True, the AGRC did provide the records to the attorney general’s office and to the Attorney General’s clients. However, “channeling work through a lawyer” does not by itself create a basis for attorney client privilege. [SUWA, ¶35, 200 P.3d at 655]
Accordingly, the Committee finds similar to the Utah Supreme Court in SUWA, that the work completed by USU legal counsel related to the inquiry was not “for or in anticipation of litigation,” but was instead in response to the request of the USU President to determine procedures for USU in response to recent allegations of sexual assaults in the campus community. Such an inquiry did not require an attorney to complete this task, and simply because an attorney did the work does not by itself convert the work into attorney work product or attorney-client privileged communications.
8. Accordingly, using the reasoning as stated above, the Committee has made a determination of proper classification of the disputed documents as follows:
|
FILE/PAGE NUMBER |
CLASSIFICATION |
REASONING |
|
1 – 2, 6, 12, 25, 26 |
PUBLIC |
|
|
3: pp. 1 – 7 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
|
3: pp. 17 – 18 |
PUBLIC |
|
|
3: ALL REMAINING PAGES |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
|
4: pp.1 – 6, 11 – 17 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
|
4: pp. 7 – 10 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
|
5: p. 1 |
PUBLIC |
|
|
5: pp. 2 – 12, 15 – 19 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
|
5: pp. 13 – 14 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
|
7: pp. 1 – 9 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
|
7: pp. 10 – 18 |
PUBLIC |
|
|
8, 10, 14 - 21 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
|
9: 1 – 10 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
|
9: 11 – 14 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
|
9: 15 – 28 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
|
9: 29 – 46 |
PROTECTED |
These documents are shared records and are subject to the controlling agency’s original classification according to Utah Code § 63G-2-206 and Utah Code § 63G-2-305(10). |
|
11 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
|
13: p. 1 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
|
13: pp. 2 – 3 |
PUBLIC |
|
|
22: p. 1 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
|
22: pp. 2 – 3 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
|
23 – 24: pp. 1 – 4 (both groups) |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
|
23 – 24: ALL REMAINING PAGES |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
|
27 |
PROTECTED |
These documents are shared records and are subject to the controlling agency’s original classification according to Utah Code § 63G-2-206 and Utah Code § 63G-2-305(10), and cannot be disclosed by USU. |
|
28 – 29 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Alex Stuckey, 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 its 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 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 21st day of February 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LIBERTAS INSTITUTE, Petitioner, v.
UTAH STATE TAX COMMISSION, Respondent.
DECISION AND ORDER
Case No. 17-12
By this appeal, Petitioner, the Libertas Institute, seeks access to records held by Respondent, the Utah State Tax Commission (“Commission”).
FACTS
On December 9, 2016, Connor Boyack, President of the Libertas Institute (“Libertas”), made a request to the Commission for records pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Boyack requested a copy of an agreement between the Commission and the online retailer Amazon regarding Amazon’s collection and remittance of sales tax for Utah consumers. In a letter dated December 20, 2016, Dolores Furniss, Disclosure Officer for the Commission, denied the records request finding that the information being requested was classified “protected” under GRAMA pursuant to Utah Code § 63G-2-305.
Mr. Boyack filed an appeal with the Commission, and in a letter dated January 11, 2017, Barry C. Conover, Executive Director of the Commission, denied Mr. Boyack’s appeal and affirmed the decision of Ms. Furniss. On January 30, 2017, Mr. Boyack and legal counsel for Libertas filed an appeal with the State Records Committee (“Committee”). On March 16, 2017, the Committee held a hearing where the parties were allowed to present their legal arguments. After considering all arguments by the parties, reviewing all written materials, and reviewing the subject records in camera, the Committee 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 §63G-2-201(2). Records that are private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).
2. Utah Code § 63G-2-305(15) states that records and audit work papers that identify audit, collection, and operational procedures and methods used by the Commission are protected records if properly classified by the Commission and if disclosure would interfere with audits or collections. Utah Code § 59-1-403(1) prohibits a tax commissioner, an agent, clerk, or other officer or employee of the Commission, to divulge or make known in any manner any information gained by that person from any return filed with the Commission.
3. Records that are prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of litigation or a judicial, quasi-judicial or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18). Additionally, commercial information or nonindividual financial information obtained from a person is a protected record if properly classified by a governmental entity and: (1) Disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future; (2) The person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and (3) The person submitting the information has provided the governmental entity with the information specified in Utah Code § 63G-2-309. Utah Code § 63G-2-305(2).
4. Contracts entered into by a governmental entity are normally public, but to the extent that a record is expressly exempt from disclosure, access may be restricted pursuant to Utah Code §§ 63G-2-201(3)(b), -302, -304, and -305. Utah Code § 63G-2-301(3)(d).
5. Counsel for the Commission argued that the requested records could not be disclosed pursuant to Utah Code §§ 63G-2-305(15), -305(2), -305(18), and 59-1-403(1). Counsel claimed that the contract entered into between the Commission and Amazon contained protected and non-disclosable information. Counsel also argued that the “Commission seeks this protection for all such agreements as made under negotiations for amnesty” pursuant to Utah Code § 59-12-128 (the Commission may grant “amnesty” to sellers who would otherwise be required to pay taxes).
6. Libertas argued that the contract should be a public record, and if the contract contained any trade secrets or injurious commercial or financial information, “the information should be redacted to allow taxpayers to see the terms of the Agreement.”
7. The Committee finds that Utah Code § 63G-2-305(15) does not apply to the requested records because it is simply a contract that does not identify any audit, collection, or operational procedure and method used by the Commission. Utah Code § 59-1-403(1) also does not apply because the contract does not constitute a “return” filed with the Commission. Further, the Commission cannot rely upon Utah Code § 63G-2-305(2) because Amazon did not provide a claim of confidentiality complying with the requirements of Utah Code § 63G-2-309 at the time it submitted the information to the Commission. See, Fife v. Orem City, Utah Fourth District Case No. 140400007 (Dec. 22, 2014).
8. The Committee is unconvinced that Utah Code § 63G-2-305(18) applies because there is no evidence that the contract was created in anticipation of litigation or a judicial, quasi-judicial or administrative proceeding. Virtually all documents created by governmental entities could become the subject of litigation. “Documents created as part of a government actor’s official duties receive no protection even if the documents are likely to be the subject of later litigation.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶ 39, 358 P.3d 1075, quoting S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶ 24, 200 P.3d 643 (quotations omitted). Accordingly, attorney “work product” protection should be reserved for those records that would not have been generated but for the pendency or imminence of litigation. Id.
9. Accordingly, after having reviewed the written arguments of the parties, hearing testimony and arguments at the hearing, and reviewing the contract in camera, the Committee finds that the contract between the Commission and Amazon is a public record subject to the redaction of information that should remain non-public. The purpose of Utah Code § 63G-2-301(3)(d) is to allow the public to generally know the terms of contracts entered into by governmental entities. A review of the contract showed that after non-public information regarding specific personally identifiable information and the attachments to the agreement, are redacted or removed, the remainder of the contract can be disclosed to the public.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Libertas Institute, is GRANTED as detailed above.
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 its 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 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 27th day of March 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 17-20
By this appeal, Petitioner, Patrick Sullivan, seeks access to records held by Respondent, the Utah Department of Corrections (“Corrections”).
FACTS
On a form dated February 2, 2017, and received by Corrections on March 3, 2017, Mr. Sullivan requested records from Corrections pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested a fee waiver for the records claiming that release of the records “primarily benefits the public rather than a person.” In a letter dated March 13, 2017, a records officer for Corrections informed Mr. Sullivan that his request was being rejected because Mr. Sullivan was not indigent but added that his request would be reconsidered if it was resubmitted with a money order. Mr. Sullivan appealed the decision to Corrections’ Deputy Director, Mike Haddon who, in a letter dated March 23, 2017, affirmed the decision of the records officer. Mr. Haddon found that pursuant to Utah Code § 63G-2-203(8)(a), Corrections was not required to fulfill the records request because Mr. Sullivan still owed Corrections $370.00 from a previous records request.
Mr. Sullivan made a second records request to Corrections pursuant to GRAMA on March 6, 2017. Mr. Sullivan requested the names of individuals involved in a decision made by Corrections regarding Mr. Sullivan. In a letter dated March 17, 2017, a records officer for Corrections denied Mr. Sullivan’s request stating that in order to fulfill the request, Corrections “would have to create a record.” After an appeal was filed by Mr. Sullivan on April 4, 2017, Mr. Haddon affirmed the decision of the records officer stating that a “search was made and no additional records regarding this matter were located.”
Mr. Sullivan filed an appeal with the State Records Committee (“Committee”) regarding Corrections’ denial of his request for a fee waiver on April 19, 2017. Mr. Sullivan filed another appeal with the Committee regarding Corrections’ denial of his request for records disclosing the names of certain individuals on April 24, 2017. For the convenience of the parties, the Committee combined both appeals and on June 8, 2017, the Committee held a hearing where the parties were allowed to present their oral arguments. After considering all arguments by the parties and reviewing the all written materials, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). However, a governmental entity may require payment of past fees and future estimated fees before beginning to process a request if the requester has not paid fees from previous requests. Utah Code § 63G-2-203(8)(a)(ii).
2. In the present case, Corrections did not process Mr. Sullivan’s request because he still owed $370.00 from a previous records request. Based on Mr. Sullivan’s failure to pay the fees from the previous request, the Committee finds that pursuant to Utah Code § 63G-2-203(8)(a)(ii), Corrections was not required to process Mr. Sullivan’s request prior to payment of outstanding fees. Accordingly, Corrections’ decision to deny Mr. Sullivan’s request for a fee waiver was not an unreasonable denial.
3. Regarding Corrections’ denial of his second request for records, counsel for Corrections stated during the hearing that records have since been found that are responsive to Mr. Sullivan’s request. Corrections found two documents: (1) A medical organization chart that identifies Corrections’ physicians and physician assistants; and (2) Meeting Minutes from Corrections’ Utilization Clearance Committee. Counsel for Corrections agreed that these documents may be released to Mr. Sullivan subject to redaction of non-public information.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is 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.
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 governmental 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 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 19th day of June 2017.
BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LORI WILLIAMS, Petitioner, v.
PLEASANT GROVE CITY. Respondent.
DECISION AND ORDER
Case No. 16-48
By this appeal, Petitioner, Lori Williams, seeks access to records allegedly held by Respondent, Pleasant Grove City.
FACTS
In a letter dated August 16, 2016, Ms. Williams requested records related to the annual Strawberry Days festival held annually in Pleasant Grove City (“City”). Ms. Williams made the records request pursuant to the Government Records Access and Management Act (“GRAMA”). On September 7, 2016, the City granted in part and denied in part the records request. The denial was based upon the City’s finding that it did not maintain certain records because the “Strawberry Days Association which is a private entity maintains the record.”
Ms. Williams filed an appeal with the City, claiming that the Strawberry Days Association’s committee “serves under the authority of the city.” In a letter dated September 20, 2016, J. Scott Darrington, Administrator for the City, denied Ms. Williams’ appeal stating:
Some of the records that you are requesting are not under the purview of Pleasant Grove City. We do not maintain the records that belong to the Strawberry Days Association. They are not public records subject to GRAMA. The Strawberry Days Association and Rodeo Association are separate entities and therefore the City can’t force them to produce records. Those Associations can make their own determination on what they will open to the public.
On October 4, 2016, Ms. Williams filed an appeal with the State Records Committee (“Committee”). On December 8, 2016, a hearing was before the Committee where the parties were allowed to present their legal arguments. After considering all written materials and the arguments by the parties, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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 subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2).
2. A record means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics that is “prepared, owned, received, or retained by a governmental entity or political subdivision” and “where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.” Utah Code § 63G-2-103(22)(a).
3. A “governmental entity” means any “political subdivision of the state,” and “every office, agency, board, bureau, committee, department, advisory board, or commission” of a political subdivision “that is funded or established by the government to carry out the public’s business.” Utah Code §§ 63G-2-103(11)(a)(v) and -103(11)(b)(i).
4. Ms. Williams argued that the Strawberry Days festival has always been organized, run and directed by Pleasant Grove City, with: (1) City employees filling many seats on the Strawberry Days Association’s committee (including for many years the chair’s seat); (2) Top positions with the Strawberry Days Association being filled by the Mayor and Council by city ordinance; (3) The Strawberry Days Association using and directing City resources including City funds, City property, and City utilities, and (4) The Strawberry Days Association using the City’s tax number, staff and insurance. Ms. Williams further argued that the Strawberry Days Association “has and still does answer to the city, runs requests through the city, and processes most activities at the city level.” Ms. Williams also presented evidence showing that the Strawberry Days Association’s business license expired on October 20, 2004, but has now been registered since December 5, 2016, using the City’s address as its business address. Ms. Williams claimed that the Strawberry Days Association and the City have operated for years “as one unit” with overlaps in accountability, organization, resources, property, and employees.
5. The City claims that the Strawberry Days Association is a separate legal entity from the City. The City stated that the Strawberry Days Association was incorporated in 1962 to publicize and promote the Strawberry Days festival by providing “in kind services and paying the expenses for city sponsored activities” including the Miss Pleasant Grove Queen Pageant. The City argued that the separate nature of the two organizations is demonstrated in part by a financial reconciliation between the City’s Finance Director and the financial representative of the Strawberry Days Association at the conclusion each year’s Strawberry Days festival,.
6. After having reviewed the arguments of the parties and hearing testimony and arguments at the hearing, the Committee is unconvinced that the Strawberry Days Association was a separate non-governmental legal entity from Pleasant Grove City during the period of time 2004 to December 2016. The evidence shows that the Strawberry Days Association has been established and/or funded by the City, and that records “prepared, owned, received, or retained” by the Strawberry Days Association may be under the control of the City. Accordingly, a records request made by Ms. Williams pursuant to GRAMA for records of the Strawberry Days Association should be fulfilled by Pleasant Grove City.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Lori Williams, is GRANTED.
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 its 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 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 19th day of December 2016.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KENT SINGLETON, Petitioner, v.
WEBER HUMAN SERVICES. Respondent.
DECISION AND ORDER
Case No. 20-27
By this appeal, Petitioner, Kent Singleton, seeks access to records allegedly held by Respondent, the Weber Human Services.
FACTS
On a form dated December 10, 2019, Mr. Singleton made a records request to Weber Human Services for “personal and business cell phone texts, emails, conversations, trainings/meetings/minutes, notes and data of any communications” concerning accusations made that he and Jeff Glum inappropriately used Riverdale Senior Center (“Center”) computers in 2019. In an e-mail dated December 18, 2019, Kevin Eastman, Executive Director for Respondent, said he had no new documents to present to him regarding his request.
On January 7, 2020, Mr. Singleton filed an appeal. Michelle Jenson, Director of Compliance and quality for Respondent, responded to Mr. Singleton’s appeal in an e-mail dated January 10, 2020, stating that after a careful review of the records request, she had “come to the conclusion that we have already provided to you all documents and information we have related to your request.”
Mr. Singleton filed an appeal with the State Records Committee (“Committee”). On July 9, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. Ms. Jenson appeared on behalf of Respondent and Mr. Glum appeared as an interested third party. Prior to the hearing, Mr. Singleton requested that he appear in person before the Committee. The Committee Chair denied the request based upon a determination that conducting an electronic meeting without an anchor location was necessary because conducting the meeting with an anchor location presents a substantial risk to the health and safety of those who may be present at the anchor location. See, Utah Code § 52-4-207(4) (2020 H.B. 5002 Open and Public Meetings Act Amendments). Mr. Singleton did not make an electronic appearance at the hearing, but all written materials submitted by the parties were considered by the Committee.
After carefully considering the requested relief 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”) states 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 subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a).
2. After having considered the oral and written arguments of the parties, the Committee is persuaded that Respondent has provided all responsive records to Mr. Singleton. The evidence shows that Respondent did a thorough search for the records and actually provided Mr. Singleton with more records than had been requested.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mr. Singleton is hereby DENIED.
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.
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).
Entered this 21 day of July 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
LOGAN CITY. Respondent.
DECISION AND ORDER
Case No. 20-36
By this appeal, Petitioner, Brady Eames, seeks access to records held by Respondent, Logan City.
FACTS
On June 5, 2020, Mr. Eames made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to Respondent. Mr. Eames requested inspection of written reports documenting any and all deposits and investments made by the Public Treasurer of Respondent with the State Money Management Council from 2010 through 2020. Mr. Eames also requested a fee waiver for inspection of the written reports. Mr. Eames request for a fee waiver was initially denied. Mr. Eames filed an appeal with Holly Daines, Mayor of Logan City, who affirmed the decision to deny Mr. Eames’ fee waiver request.
Mr. Eames filed an appeal with the State Records Committee (“Committee”). On August 13, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. Respondent chose not to participate in the hearing and instead provided their arguments in writing for the committee’s review prior the hearing. After carefully reviewing testimony and considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A person has the right to inspect a public record free of charge subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). Additionally, a “public treasurer shall make copies of a report required by this section available for inspection by the public at the public treasurer’s office during normal business hours.” Utah Code § 51-7-18.2(4).
2. A governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Utah Code § 63G-2-201(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4).
3. A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee waiver and any determination under Utah Code § 63G-2-203(4). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. Respondent stated that the total fee for inspecting the 42 pages of records requested by Mr. Eames was $38.40. Mr. Eames argued that he should not have to pay a fee of $38.40 to inspect copies of public reports which are mandated by law to be made available to the public at the Office of the Public Treasurer of Respondent during normal business hours.
5. After having reviewed the arguments of the parties, the Committee finds that Respondent’s decision to deny Mr. Eames’ request for a fee waiver was an unreasonable denial. Even though Respondent claims that it has to pay $38.50 in order to obtain copies of the record from a third party who holds the records, the records are considered public records and should already be made available to the public pursuant to Utah Code § 51-7-18.2(4).
ORDER
THEREFORE, IT IS ORDERED THAT the appeals of Petitioner, Brady Eames is hereby GRANTED.
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.
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).
Entered this 24 day of August 2020.
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DANIAL MOVAHHED, Petitioner, v.
SALT LAKE COUNTY, Respondent.
DECISION AND ORDER
Case No. 20-30
By this appeal, Petitioner, Daniel Movahhed, seeks access to records held by Respondent, Salt Lake County.
FACTS
On February 25, 2020, Mr. Movahhed made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Movahhed requested documentation regarding the justification to continue his housing assignment in administrative segregation and the associated reviews. The Information Services Specialist for Respondent denied the request stating that the records were classified as protected records pursuant to Utah Code § 63G-2-305(13).
Mr. Movahhed filed an appeal with Respondent’s chief administrative officer. In a letter dated March 12, 2020, Chief Deputy Matt Dumont denied Mr. Movahhed’s appeal request affirming the determination that the records were properly classified as protected pursuant to Utah Code § 63G-2-305(13).
Mr. Movahhed filed an appeal with the State Records Committee (“Committee”). The case was initially heard by the Committee on June 12, 2020, but was continued because Mr. Movahhed was unable to attend the hearing. See, Movahhed v. Salt Lake Cty. Sheriff’s Office, State Records Committee Order No. 20-26 (June 19, 2020). On July 9, 2020, the Committee held a second hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the arguments of the parties, the Committee 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 § 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. Records that if disclosed would jeopardize the security or safety of a correctional facility, or records relating to 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 a governmental entity. Utah Code § 63G-2-305(13).
3. Lieutenant Kathy Berrett with the Salt Lake County Sheriff’s Office, stated that Protected Classification Records contain staff recommendations, observations, security threat activities/associations and other information used to determine appropriate classification status. Lt. Berrett also stated that basic information regarding classification assignments were made available to Mr. Movahhed. However, disclosure of their full content would jeopardize the safety and security of the facility by exposing to the prisoner population the classification review process notes and identification of the board’s participants.
4. After having considered the arguments of the parties, the Committee finds that Respondent properly classified the records as protected records pursuant to Utah Code § 63G-2-305(13). The Committee agrees with Respondent’s argument that release of the records would jeopardize the security or safety of a correctional facility, and/or interfere with the control and supervision of an offender’s incarceration, treatment, probation, or parole.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Danial Movahhed is hereby DENIED.
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.
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).
Entered this 21st day of July 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MATTHEW WINTERS, Petitioner, v.
WEST JORDAN CITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 17-28
By this appeal, Petitioner, Matthew Winters, seeks access to records held by Respondent, West Jordan Police Department.
FACTS
On April 25, 2017, Mr. Winters made a records request to the West Jordan Police Department ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Winters requested "[a]ll video and audio – car camera, body camera and middle school DVD surveillance." Respondent partially granted the request, but denied the request to produce certain video and audio because they were regarding juveniles, and the City classified them as private.
Mr. Winters appealed the denial to the City Manager, identifying the records he expected the City to produce, and on May 8, 2017, the City Manager denied the appeal. Mr. Winters filed an appeal before the State Records Committee ("Committee"). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on August 10, 2017, 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 containing data on individuals, the disclosure of which constitutes a clearly unwarranted invasion of personal privacy and records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data are private. Utah Code § 63G-2-302(d) and -302(1)(b).
3. Generally, audio and video recordings created by a body-worn camera that record sound or images inside a home or residence are private if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(g).
4. At the hearing, the Respondent argued it would be an unwarranted invasion of personal privacy to release the videos. The videos contained images of juveniles allegedly involved in acts that could result in juvenile court proceeding for the juveniles. The Respondent also stated that release of the videos could reveal information regarding a medical condition of one of the juveniles.
5. The Committee having reviewed Mr. Winter’s records requests, and the arguments and testimony of the parties, finds that the videos are public; however records containing data on individuals describing their medical history, diagnosis, condition, treatment, evaluation or similar data; any audio and video recordings created by a body-worn camera that record sound or images inside a home or residence; and lastly, any personally identifiable information regarding the juveniles is private and should be redacted pursuant to Utah Code § 63G-2-302(1)(b), -302(2)(g), and -302(2)(d). In that the records contain both public and private information, the governmental entity is obligated to segregate the records by classification and provide access to information to which the requester is entitled. See, Utah Code § 63G-2-308.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Matthew Winters, is 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 its 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 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 21st day of August 2017.
BY THE STATE RECORDS COMMITTEE
_______________________________________
DAVID FLEMING, Chairperson
State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KSL-TV, Petitioner, v.
UTAH DEPARTMENT OF HEALTH. Respondent.
DECISION AND ORDER
Case No. 20-43
By this appeal, Cindy St. Clair, on behalf of KSL-TV, seeks access to records allegedly held by Respondent, the Utah Department of Health.
FACTS
On or about April 30, 2020, Ms. St. Clair, made two records requests pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. St. Clair requested “[a]ll complaints regarding nursing homes from Feb. 1, 2020 to current date” for the purpose of obtaining information on “how nursing homes are handling COVID and notifying residents’ families.” Ms. St. Clair stated that the personal information regarding individuals should be redacted, but wanted the information regarding the names and locations of the facilities, narratives of any complaints, and the dates of the complaints to remain. Ms. St. Clair also requested a complete list of all Utah nursing and assisted living homes that have had COVID-19 positive residents, the number of positive residents per location, and a listing of any deaths of residents from COVID-19 at the locations.
On May 14, 2020, Respondent sent an e-mail to Ms. St. Clair stating that beginning on May 14, 2020, Respondent will include on their dashboard information relating to the records request including the names of facilities with active COVID-19 cases, a cumulative number of residents who have tested positive, and the number of resident deaths in licensed facilities. The e-mail noted that “this is all the information we will be releasing.”
On May 20, 2020, Ms. St. Clair appealed the partial denial to Chief Administrative Officer, Dr. Joe Miner. In a letter dated June 3, 2020, Dr. Miner denied the appeal stating that the requested information could not be released because of the confidentiality provisions found in the Utah Communicable Disease Control Act.
On June 4, 2020, Ms. St. Clair filed an appeal on behalf of Petitioner with the State Records Committee (“Committee”). On September 10, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 63G-2-201(2). Records to which access is restricted pursuant to another state statute are not public records. Utah Code § 63G-2-201(3)(b).
2. According to the Utah Communicable Disease Control Act, information collected pursuant to the Act in the possession of Respondent or local health departments “relating to an individual who has or is suspected of having a disease designated by the department as a communicable or reportable disease…shall be held by the department and local health departments as strictly confidential.” Utah Code § 26-6-27(1).
3. However, a review of the records request made by Ms. St. Clair shows that she was not interested in obtaining any “personal information” regarding the individuals who have tested positive for COVID-19. During the hearing with the Committee, Ms. St. Clair stated that she expected individual information to be redacted because the purpose of obtaining the information was to show the public the effectiveness of individual nursing homes in handling the COVID-19 crisis.
4. After considering all of the evidence including the testimony presented by the parties, the Committee is convinced that release of general information regarding COVID-19 cases in nursing homes in possession of Respondent with proper redactions of individuals’ personal information, will not violate Utah Code § 26-6-27(1). Information about the number of cases for each nursing home will not reveal personal information regarding individuals within those nursing homes. Accordingly, Respondent is directed to provide records responsive to the present records request with appropriate redactions consistent with this Order.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Cindy St. Clair on behalf of KSL-TV is hereby GRANTED.
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.
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).
Entered this 21 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ALEXANDER CRAMER, Petitioner, v.
SUMMIT COUNTY, a political subdivision of the State of Utah. Respondent.
DECISION AND ORDER
Case No. 20-51
The present appeal was heard by the State Records Committee (“Committee”) on September 24, 2020 with each of the parties participating electronically. The parties presented their arguments during the hearing, but it was determined that a review of the disputed records in camera was necessary for the Committee to make its determination. Because of the large number of records, the Committee unanimously voted to continue the hearing to the November 12, 2020 scheduled hearing date in order to allow the Committee members to review in camera the records provided by Respondent, Summit County.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Alexander Cramer, is CONTINUED until November 12, 2020.
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.
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).
Entered this 30 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v.
DEPT OF WORKFORCE SERVICES. Respondent.
DECISION AND ORDER
Case No. 20-40
The present appeal was heard by the State Records Committee (“Committee”) on August 27, 2020 with each of the parties participating electronically. Both parties requested to continue the hearing on the matter of records of communications generated in connection to the Uintah Basin Railway, allowing the parties to potentially resolve the issues that are the subject of the appeal. The Committee unanimously voted to continue the hearing to the next available Committee hearing date.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, the Center for Biological Diversity is CONTINUED.
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.
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).
Entered this 8 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KSL 5 NEWS, Petitioner, v.
LAYTON CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 20-48
By this appeal, Petitioner, KSL 5 News, seeks access to records allegedly held by Respondent, Layton City Police Department.
FACTS
On May 26, 2020, Mr. Pineiro on behalf of Petitioner, KSL 5 News, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Pineiro requested a copy of the 911 phone call from Ethan Hunsaker made on May 26, 2020. The record is related to the death of Ashlyn Black. Respondent denied the request the same day indicating that the records were part of an open investigation and were protected pursuant to Utah Code § 63G-2-305(10)(a) and –305(10)(c). Eric Morgan on behalf of Petitioner, filed an appeal arguing that the public’s interest in the release of the records outweighed the protection provisions.
Petitioner’s appeal was denied and thereafter, an appeal was filed by Mr. Morgan on behalf of Petitioner on June 26, 2020 with the State Records Committee (“Committee”). Davis County requested and was granted permission to intervene in the case pursuant to Utah Code § 63G-2-403(6). On September 24, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties and reviewing the requested 911 call in camera, the Committee 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 § 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. Records created or maintained for criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement purposes; or (2) Would create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(a) & (c).
3. After listening to the complete 911 recording in camera, the Committee is convinced that release of the recording reasonably could be expected to interfere with the investigation of the death of Ashlyn Black and create a danger of depriving a person prosecuted for her death of a fair trial. Accordingly, the Committee finds that the 911 recording should not be released pursuant to Utah Code § 63G-2-305(10)(a) & (c).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, KSL 5 News is hereby DENIED.
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.
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).
Entered this 30 day of September 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v.
SEVEN COUNTY INFRASTRUCTURE COALITION. Respondent.
DECISION AND ORDER
Case No. 20-55
By this appeal, Petitioner, the Center for Biological Diversity, seeks access to records allegedly held by Respondent, Seven County Infrastructure Coalition.
FACTS
On February 7, 2020, Petitioner submitted via e-mail a request to Respondent a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records related to the Uinta Basin Railway Project including memoranda, studies, findings, and minutes. In a letter dated May 22, 2020, Respondent’s Records Officer provided records responsive to Petitioner’s request, but denied access to documents classified as protected pursuant to Utah Code § 63G-2-305. The Records Officer stated that Respondent “will only provide you with redacted copies of responsive documents.”
In a letter dated June 19, 2020, Petitioner filed an appeal with Michael McKee, Executive Director for Respondent, arguing that the records should be disclosed unredacted as public records. In a letter dated July 9, 2020, Mr. McKee partially granted and partially denied the appeal, finding that some of the records should only be provided with redactions pursuant to Utah Code § 63G-2-305.
Petitioner filed an appeal with the State Records Committee (“Committee”), and on November 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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. Counsel for Respondent stated that over 1,600 pages had been provided to Petitioner. However, counsel argued that the records that were withheld with redactions were attorney invoices that had been redacted pursuant to the attorney-client privilege exceptions found under Utah Code § 63G-2-305(17) & (18).
3. After having considered the written and oral arguments of the parties and reviewing the disputed records in camera, the Committee finds that the redactions made by Respondent were properly classified as protected information pursuant to Utah Code § 63G-2-305(17) & (18).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Center for Biological Diversity is hereby DENIED.
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.
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).
Entered this 23 day of November 2020
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH LOCAL GOVERNMENT TRUST. Respondent.
DECISION AND ORDER
Case No. 20-64
By this appeal, Petitioners, Brady Eames, seeks access to records allegedly held by Respondent, the Utah League of Cities and Towns.
FACTS
In May 2020, Mr. Eames made three records requests pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested plans, policies, reports, statements, and resolutions of the Utah Legal Government Trust Board regarding the use of tax money of Logan City’s and Cache County’s citizens. Respondent denied this appeal noting that they do not maintain records of investment based on its more than 500 member’s individual premium payments, nor does the Trust have any way of tracking whether it receives any “tax money” of its Members and therefore this request should be denied.
Mr. Eames also requested, “any and all documents of any and all tax money that has been separately contributed to and deposited in each of the following insurance trust funds (ITF):” and thereafter named all applicable funds. Respondent denied this request for a few reasons. “First, the Utah Local Governments Trust is not a taxing entity... Second, the Trust does not have “separate” accounts for the separate lines of insurance it provides, although it does account for the lines of insurance separately...”
Lastly, Mr. Eames requested “[a]ny and all documentation of ULGTC's transfer to the Treasurer/PTIF of certain tax money of Logan City's citizens that:...” related to trust and tax records. Respondent noted that none of these requested documents exists and that Respondent does not maintain records of investment or disbursement based on its more than 500 members’ individual premium payments, nor does the Trust have any way of tracking whether it receives any “tax money” from members of and therefore this request should be denied.
Thereafter, Mr. Eames filed his appeal with the State Records Committee (“Committee”). On December 10, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. However, Mr. Eames chose not to participate in the hearing. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A person has a right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). However, in response to a request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a).
2. After considering the written arguments of both parties and the oral arguments presented by Respondent’s legal counsel, the Committee finds that Respondent has provided all records responsive to Mr. Eames’ records requests. The Committee also finds that Respondent is not required to create records in response to Mr. Eames’ records requests.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is hereby DENIED.
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.
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).
Entered this 21 day of December 2020
BY THE STATE RECORDS COMMITTEE
KENNETH WILLIAMS
Chair pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL CLARA, Petitioner, and PHIL LYMAN and NATALIE CLAWSON, Intervenors, v.
WASHINGTON COUNTY, Respondent,
DECISION AND ORDER
Case No. 24-50
By this appeal, Michael Clara (“Petitioner”) requests records allegedly held by Washington County (“Respondent”). Phil Lyman and Natalie Clawson (“Intervenors”) intervene to assert their interests in the records being released.
FACTS
The pertinent facts giving rise to this appeal are the following. On May 3, 2024, Petitioner submitted a record request pursuant to the Government Records Access and Management Act (“GRAMA”) seeking the “signature gathering forms for incumbent candidate Don L. Ispon.” On May 17, 2024, Respondent denied the request on the basis that the records were protected under Utah Code § 63G-2-305(74), which protects the signature of an individual on a petition. But, in weighing the interests favoring access against the interests favoring restriction, Respondent said that it would allow Petitioner the opportunity to inspect the records in person. Three days later, on May 20, 2024, Petitioner appealed the denial and invitation to inspect the records to Respondent’s chief administrative officer (“CAO”). In response, Respondent’s attorney wrote to Petitioner and informed him that, upon a legal review, the records may not be inspected in person; that the records are protected because they contain signatures on a political petition under Title 20A (the Election Code) and that they are protected pursuant to Utah Code § 63G-2-305(10), which protects records if their disclosure could reasonably interfere with investigations, enforcement proceedings, and the right to a fair trial. Petitioner then appealed to the State Records Committee (“Committee”).
As Petitioner filed his appeal to the Committee, Intervenors filed a request to intervene. They assert that they “need a copy of Senator Ispon’s signature petitions with the information for public, private, and withheld voters as soon as possible so [they] can ensure that certain signatures removed from Senator Ispon’s list also were removed from Governor Cox’s list.” According to Intervenors, the signature gathering company used by Senator Ispon was the same company used by Governor Cox to procure his petitioner signatures and is under criminal investigation by the Washington County Attorney’s Office for activities related to Senator Ispon’s signature list. Thus, Intervenors argue that “there are questions about the legitimacy of the signatures submitted by Governor Cox and Lieutenant Governor Henderson.” Thus, Intervenors claim that if the Ispon signature petition is released, then they can compare it to the Cox signature petition and determine whether the signatures that were removed from the Ispon petition were also removed from the Cox petition.[1]
On July 18, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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 protected under Section 305 is not a public record. Utah Code § 63G-2-201(3)(a). Normally, if a record is classified as protected under Section 305, the law requires that the Committee “[weigh] the various interests and public policies pertinent to the classification and disclosure or nondisclosure” and order the record to be disclosed “if the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). But when a record is withheld under Subsection 305(10), the law imposes a different analysis and a higher burden on the petitioner. In that instance, the Committee may order the records to be disclosed “only if the person or party seeking disclosure of the record has established, by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1).
In Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶57, 358 P.3d 1075, the Court explained that when analyzing the interests favoring access and those favoring restriction of access, it is “not a general analysis of competing public policies” that must be looked at but “particularized interests and public policies pertinent to the classification and disclosure of information.” (Emphasis original; internal quotation marks omitted.) Therefore, as we examine the evidence supporting disclosure and the policies favoring restricting access, we do so with focus “on their specific application to the documents at issue in this case.” Id. ¶55.
Of primary issue here is Subsection 63G-2-305(10), which classifies a record as protected in five enumerated circumstances. Of those five circumstances, we find the following four are relevant here: (i) releasing the records could reasonably interfere with an investigation undertaken for enforcement purposes; (ii) releasing the records could be expected to interfere with enforcement proceedings; (iii) releasing the records would create a danger or deprive a person of a right to a fair trial or impartial hearing; and (iv) releasing the records reasonably could be expected to disclose investigative or audit procedures or policies not generally known outside of government, if disclosure would interfere with enforcement or audit efforts. Utah Code § 63G-2-305(10)(a), (b), (c), (e).
At the hearing, Respondent testified that there is currently an open investigation into the Ispon petition. When pressed by the Committee, Respondent acknowledged that because Senator Ispon was elected through the party caucus, the validity of the petition signatures is not as urgent of a case as if Senator Ispon lost at the caucus and his petition signatures fell short in putting him on the ballot in November. Additionally, Respondent testified that the speed of the investigation is also hampered by low staffing and resources. But despite the obstacles impeding a speedy probe into possible election fraud, Respondent explained to the Committee that, especially since the investigation is in its beginning stages, disclosing the Ispon petition could reasonably interfere with the investigation because the information on the petition is known only to those investigating the case. That is, Respondent and investigators lose the element of surprise in confronting persons of interest. If the suspect signatures become generally known, those who signed the petition might become aware that they are potentially under investigation. With that knowledge, bad actors can prepare defenses, explanations, or take measures to avoid or stonewall law enforcement efforts.
Additionally, releasing the records could reasonably endanger a person’s right to a fair trial. As Intervenors are invoking interests connected to the gubernatorial election, the media exposure of any investigation surrounding fraudulent petitioner signatures could be immense. In publicly broadcasting that the Ispon petition has been disclosed and investigative efforts behind it, it’s reasonable to conclude that the public exposure could taint a potential jury pool long before a jury is ever selected.
We also find that since releasing the petition could reasonably interfere with enforcement efforts, revealing the petition could also potentially reveal underlying investigative enforcement procedures or policies. That is, by releasing the source of potential fraud, a person could possibly infer policies and procedures as they track and follow Respondent’s investigation efforts. Potential victims or witnesses of election fraud could be contacted before law enforcement has an opportunity to question them. Those victims or witnesses could possibly then have different facts presented to them that they normally wouldn’t be aware of (true or untrue and taken as true).
To these concerns, Petitioner and Intervenors cannot rebut. Notably, there is no evidence presented to us that an investigation has not been opened. Nor have we been presented with evidence that releasing the records would not interfere with an investigation, nor impede a fair or impartial adjudication. Petitioner and Intervenors instead rely on a public interest argument, essentially arguing that because the records are connected to the integrity of Governor Cox’s petition, a greater public interest is at play and in full support of releasing the Ipson petition.
However, we find this to be too steep of a hill to overcome. First, before us is Petitioner’s request for the Ispon petition, not the Cox petition, and not the gubernatorial race. Thus, we focus on the actual interest in the Ispon petition, not the indirectly connected Cox petition. Second, the policy interest behind Subsection 305(10) is to ensure that law enforcement efforts are unimpeded in bringing bad actors to justice. If there was election fraud that occurred in this State, the policy interest is strong in ensuring investigators have adequate opportunity to utilize procedures at their disposal to bring the appropriate charges. This of course is coupled with a Constitutional right to ensure that perpetrators receive a fair trial, and juries are not prejudiced by media-released information before they are ever seated. Because of these reasons, we think the interest in ensuring an adequate investigation outweighs the parties’ interests in the Ispon records.
With that said, we take a moment to sympathize with the frustration of a seemingly slow investigative effort by Respondent. Its presentation to the Committee was indeed problematic in assuring that the investigation is being zealously pursued. After all, election fraud is quite a serious matter and warrants vigorous investigation. For this, we acknowledge the public’s frustration, and we express our hope that Respondent hears its constituents loud and clear in demanding the investigation be properly prioritized and accelerated and the citizenry informed that it is taking the matter extremely seriously.
Since we find that the records are protected under Subsection 305(10), we choose not to address the 305(74) classification.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 22 day of July 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., Chair pro tem, Williams, K., Biehler, E., and Dubovik, N. voted in favor of and joined in this Decision and Order.
Committee member Peterson, L. voted in opposition.
enclosed: 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).
1. Intervenors allege that numerous signatures were removed from the Ispon petition because of certain improprieties, such as constituents from the wrong party signed the petition or the signature didn’t match the signature on file. At the hearing, Respondent conceded that approximately 30-60 signatures are under investigation.
",Denied,2024-07-22T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
WEST JORDAN CITY, Respondent,
DECISION AND ORDER
Case No. 24-72
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by West Jordan City (“Respondent”).
BACKGROUND
To better understand the parties’ arguments and our analysis, it’s helpful to outline the events that led to this appeal. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), that essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon thegovernor’s signature if it was approved by two-thirds of the members of each house of the legislature, which it was. At roughly 8:00 pm that evening, the Governor signed SB 240 into law with immediate effect.[1] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 5:39 pm, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2019, through March 1, 2025. The request then named two individuals.
In a response dated March 12, 2024, Respondent denied access to the records citing that daily calendars do not constitute a record, pursuant to § 63G-2-103(25)(b)(ix). Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”) who upheld the denial.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Time Computation Under Utah Code
The Respondent's first argument is that the 2024 version of GRAMA is controlling because, under Section 68-3-7, GRAMA became operative the day after Petitioner submitted his request.
Section 68-3-7 provides that when an act is performed, time is computed by excluding the first day. Utah Code § 68-3-7(1)(a). Under GRAMA, when a record request is received, the governmental entity customarily has 10 business days to respond to the request. Utah Code § 63G-2-204(4)(b). Thus, according to the Respondent, because of Section 68-3-7, the 10-day clock to respond to a GRAMA request begins one day after the request is submitted. Consequently, the version of GRAMA that is in effect on day one of the 10-day response period is the one that governs the request. Regarding the request at issue, the argument is that although Petitioner submitted his request on the same day but prior to the Governor signing SB 240, the response time began running on the day after the request was submitted and when SB 240 went into law.
The time computation statute governs when a statutorily prescribed act is to be performed. This is made clear by the Subsection (1): “A person shall compute the period of time provided by law to perform an act . . .” Utah Code § 68-3-7(1) (emphasis added). Then, GRAMA states that the entity has 10 business days “after receiving a written request” to issue a formal response to the requester. Utah Code § 63G-2-204(4)(b). Read together, we agree that these statutes mean that the day the request is submitted is excluded from any statutory time periods and the clock begins on the following day. However, day 1 of the response period is not the point in time where we look to see which version of GRAMA is operative.
In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribute v. State Records Committee, 2019 UT 68, ¶1 n.1 where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in determining which version of GRAMA should be analyzed.
The Respondent goes on to argue that Section 63G-2-307 supports the idea that the 2024 version of GRAMA should apply because SB 240 was in effect when it classified the record. We disagree.
Section 307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added). Additionally, “[a] governmental entity may redesignate . . . or reclassify a record . . . at any time.” Utah Code § 63G-2-307(3). The Respondent argues that because Subsection 307(2) allows it to classify the record “at any time,” GRAMA becomes operational when that classification is made. Thus, because it classified the calendars after SB 240 went into effect, the 2024 version of GRAMA controls, and the calendars aren’t records.
We note that Section 307 deals with the classification of “records”—a defined term under GRAMA. Whether the requested calendars are “records” subject to GRAMA is the core issue of this appeal. However, even assuming that Section 307 could apply to the requested calendars, the problem with this argument is that Subsection 307(2) actually supports Petitioner’s position.
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement for the governmental entity is to classify the record when it is requested. That would require classification under the 2023 version of GRAMA when Petitioner made his request. Subsection 307(3) then permits a reclassification at any time after the record has been classified. Consequently, even if Section 307 is applied here, it is unhelpful to the Respondent since the record cannot be reclassified without first being initially classified when the request is made.
Finally, the Respondent argues that the 2024 version of GRAMA controls because it was under this version when Petitioner’s “cause of action” arose. The Respondent argues that Petitioner has no “cause of action” until his record request is denied and that under Gressman v. State of Utah¸ 2013 UT 63, it’s the cause of action that triggers GRAMA into effect, which, in this case, was after SB 240 was signed.
In Gressman, the Court analyzed the difference in retroactivity between procedural and substantive statutory amendments. The Court determined that the statutory amendments at issue were substantive and, therefore, could not be retroactive. This meant that the version of the law in place when the plaintiff’s claim arose was the controlling law. We view this as an oversimplification of Gressman.
It is true that the statute in Gressman was examined in the context of “when Mr. Gressman’s claim arose.” Gressman, ¶20. However, basing statutory effect solely on a “cause of action” is an imprecise formulation:
Instead, our cases stand for the simpler proposition that we apply the law as it exists at the time of the event regulated by the law in question. Thus, if a law regulates a breach of contract or tort, we apply the law as it exists when the alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action . . . Similarly,, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed.
State v. Clark, 2011 UT 23, ¶13 (emphasis added). From this instruction, it’s not a cause of action per se, but the event is being regulated. Since GRAMA is a unique statute that “does not contemplate adversarial combat over record requests,” we don’t believe that a cause of action must arise before the requester can gain certainty about which law will govern their request. Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25.
As discussed in greater detail below, SB 240 amended a statutory definition. The amendment substantively affected which records could be requested under GRAMA. As a result, the event that SB 240 regulates is not that which gives rise to a cause of action (the denial of the request) but the request itself. Therefore, we find the “cause of action” argument is unpersuasive.
Ultimately, we find that the case law cited above and the plain language of Section 307 shows that the requester has the right to rely on the version of GRAMA in effect when the record request was submitted, which, in this case, was the 2023 version of GRAMA.
2. The Retroactive Effect of SB 240
The Respondent argues that even if GRAMA was triggered into effect when Petitioner’s request was made, the request was still correctly denied because SB 240 applied to his request retroactively.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[2] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Waddoups, supra.
The Respondent brings Wasatch County v. Okelberry 2015 UT App 192 to our attention. That decision was rendered two years after Gressman and the Court held that a seemingly purely clarifying amendment retroactively applied. The Respondent argues that, as a more recent case than Gressman, Okelberry supports—and even controls—the proposition that a simple clarifying amendment has a retroactive effect. We are in no position to guess why the Okelberry court ignored the repudiation given in Gressman and reinforced in Waddoups, but regardless, we find that Okelberry is distinguishable in its facts.
In that case, the Supreme Court interpreted the “continuous use” requirement found in Section 72-5-104(1) (2009). The legislature disagreed with the Court’s definition and amended the statute in direct response to the Court’s decision. The amendment clarified the legislative intent behind “continuous use” by essentially defining the term and establishing elements that must be satisfied to trigger the statute’s application. Appeals then ensued over whether the legislative amendment applied retroactively.
Notably different from our case is that in Okelberry, is that the legislature’s amendment clarified the meaning of the term “continuously used.” Lawmakers established a definition to guide judicial interpretation. In our case, the legislature didn’t clarify the meaning of “daily calendars.” Instead, it made “daily calendars” its own line item in the list of items that don’t constitute a record. Thus, even though the legislature attempted to “clarify” its original intent behind daily calendars and GRAMA, it created an all-new definitional term after Judge Corum determined the statute's plain language was clear. The contrast between Okelberry and our case is clear: the former created a definition; the latter eliminated a right. The cases are not analogous, and Gressman still controls our decisions.
3. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that they constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
4. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
5. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., chair pro tem, Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
2. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
",Partially Granted,2024-10-04T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
SANDY CITY, Respondent,
DECISION AND ORDER
Case No. 24-68
By this appeal, Adam Herbets (“Petitioner”), requests a fee waiver and records allegedly held by Sandy City (“Respondent”).
FACTS
On February 28, 2024, Petitioner submitted a request to Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). He also requested a waiver of any fees assessed for producing the records. Specifically, Petitioner requested:
Copies of all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2019, through March 1, 2025.
On February 28, 2024, Respondent wrote back to inquire: “Just to clarify, you want every record regarding calendars and/or appointments for Monica Zoltanski and Greg Severson, not just regarding a specific topic?” Petitioner responded on March 1, 2024, “Correct.”
Respondent pulled the responsive calendars for the time period requested, which amounted to over 30,000 responsive calendar events. On March 6, 2024, Respondent informed Petitioner that the cost to process the record request would be approximately $1,215.64.
Petitioner treated the City’s March 6, 2024, communication as a denial of the fee waiver request and appealed to the Respondent’s Chief Administrative Officer (“CAO”), which resulted in an eventual denial.
Petitioner treated Respondent’s April 11, 2024, communication as a denial of his purported appeal to the Respondent’s CAO and appealed to the State Records Committee (“Committee”). On September 19, 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 fee waiver denial was reasonable.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.” Utah Code § 63G-2-203(1)(a). If the governmental entity must compile the record in a form other than how it is normally maintained, then the entity may charge for “the cost of staff time for search, retrieval, and other direct administrative costs for complying with a request.” Utah Code § 63G-2-203(2)(a)(ii). Fees for such compilation can also include the costs for “extract[ing] materials from a larger document or source” when it is not reasonable to allow the requester to compile the records. Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist., 1999 UT App 136, ¶28. If the information in a record would primarily benefit the public, then the governmental entity may fulfill the record request without a fee “and is encouraged to do so.” Utah Code § 63G-2-203(4)(a). When a governmental entity suspects that fees will exceed $50.00, the entity may require payment of future estimated fees before beginning to process the request. Utah Code § 63G-2-203(8)(a)(i). When we decide disputes over fee waivers, our directive is to determine whether the government’s decision to deny the fee waiver was reasonable. Salt Lake City Corp. v. Jordan River Restoration Network [JRRN], 2018 UT 62, ¶80.
In this matter, Respondent received the request and outlined the tasks needed to process the request. Those tasks included retrieving responsive records by extracting them from a larger database and then converting them to a deliverable format and redacting private information. The lowest-paid employees who could conduct that effort were the subjects of the records themselves since only they could know which calendar entries and appointments were private and which were pertinent to their official duties. The record shows that Respondent informed Petitioner of the fee and made efforts to open a dialogue on how to narrow or modify the request, which would help drive the costs down, but the efforts failed.
Even if we accepted Petitioner’s argument that the information in the requested records primarily benefits the public, GRAMA still permits Respondent to charge a fee for its compilation efforts. See Utah Code § 63G-2-203(4)(b); and Salt Lake City Corp. v. JRRN, ¶83 (holding that the decision to deny the fee waiver was reasonable despite the records primarily benefiting the public). That is, while GRAMA might “encourage” a fee waiver, it doesn’t require it. And in our analysis of determining whether the denial of the fee waiver was reasonable, we are to look beyond Subsection 203(4) and examine any other evidence [we] find relevant to the reasonableness of the entity’s denial.” JRRN, ¶54. As a result, our findings are here nearly identical to those in JRRN: That, despite the public benefit, the time and effort required of the City to fulfill the request, and the extreme breadth of the request, are enough here to support Respondent’s determination. See JRRN, ¶54.
Respondent’s decision to deny the fee waiver was reasonable under the circumstances pursuant to Subsections 203(1) and 203(2)(a). Because Respondent has agreed to disclose the requested records as long as the fee is paid, we express no opinion on the classification or status of the calendars themselves in light of GRAMA’s recent legislative change.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 30 day of September 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair Pro tem, Utah State Records Committee
Committee members Heidi Stringham, Ed Biehler, Mark Buchanan, Nova Dubovik, and Linda Peterson voted in favor of this Decision and Order.
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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RYAN MILLER, Petitioner, v.
UNIVERSITY OF UTAH, Respondent,
DECISION AND ORDER
Case No. 24-44
By this appeal, Ryan Miller (“Petitioner”), requests records allegedly held by the University of Utah (“Respondent”).
FACTS
After filing a complaint with the Respondent concerning an alleged failure of student safeguards he witnessed and experienced, Petitioner grew frustrated at being unable to obtain information about the investigation. On August 24, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested “all records pertaining to this investigation.” In his request, Petitioner also asked eleven questions to the Respondent in which he hoped records could answer.
On October 20, 2023, the University provided the Petitioner access to “a written report and findings” and explained that, due to extraordinary circumstances, it needed more time to process the remainder of his request. Petitioner appealed the University’s need to extend the response time to the Respondent’s chief administrative officer (“CAO”). The CAO responded on February 7, 2024, denying Petitioner’s appeal and indicating that the “University has responded to a substantial portion of your request to include providing the final report.” Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”).
During the pendency of the appeal, the Respondent continued to work diligently on the Petitioner’s broad request, providing records in batches with the first set of records being delivered on May 3, 2024, and the final batch being provided on June 3, 2024. According to the Respondent, by June 3rd, it had delivered all responsive records.
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 Respondent performed a reasonable search for responsive records.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). In response to a record request, a governmental entity “shall conduct a reasonable search for a requested record.” Utah Code § 63G-2-201(7)(b). In cases where the requester challenges whether all responsive records have been disclosed, the governmental entity must show “by a preponderance of the evidence that its search for the requested records was reasonable.” Utah Administrative Rules R35-1-3(1)(a). If the governmental entity preponderates such a showing, then the burden shifts to the requester who must show “by a preponderance of the evidence that the search efforts were not reasonable.” Utah Administrative Rules R35-1-3(1)(b).
At the hearing, it became clear that Petitioner’s expectations on this matter were frustrated by his understandable lack of knowledge about GRAMA. His frustration appeared to be sourced in the Respondent’s continual delays to provide records along with the record production itself. Petitioner received only some of the records he sought, not understanding why others were withheld and what exactly those withheld records were.
We sympathize with Petitioner. The Respondent’s processes in responding to his GRAMA request resulted in a delay of approximately 200 days before Petitioner received his records. This of course severely overshoots GRAMA’s timeframe of 10 business days to produce a record. See Utah Code § 63G-2-204(4)(b). It also seems to exceed the reasonableness deadlines found in Utah Code § 63G-2-204(7) that warrant a delay due to “extraordinary circumstances,” which we give no opinion on whether the Respondent’s delay was due to the extraordinary circumstances Section 204 contemplates. See Utah Code § 63G-2-204(6). And certainly a 200-day response time with numerous delays and extensions cuts squarely against GRAMA’s explicit policy to “promote the public’s right of easy and reasonable access to unrestricted public records.” Utah Code § 63G-2-102(3)(a). Unfortunately, however, we are powerless to help the public right the wrongs that governmental entities may commit under GRAMA. We note that Petitioner is not alone in his frustration as his complaints about the Respondent’s GRAMA violations echo similar complaints made by other requesters against the governmental entities in their cases. But our power to fine a governmental entity is designated only for noncompliance with our orders. The legislature has not created a way to enforce GRAMA beyond that. Consequently, the public is at the mercy of the governmental entities and must endure potential non-compliance conduct until we are given the tools necessary to enforce the requirements GRAMA imposes.
Because we cannot effectively address the main thrust of Petitioner’s complaint, we turn our focus to whether the Respondent fulfilled its duty in responding to the request at all, and we find that it did.
At the hearing, the Respondent’s record officer testified that in processing the request, she and her colleagues sought out the records that Petitioner specifically requested, including emails, communications, documents, and the final report concerning the investigation. They asked each relevant department to review the request themselves and determine if there were responsive documents that could be produced. She further testified that she did her best to interpret the request broadly enough to ascertain the records he sought.
Given the records officer’s testimony in conjunction with the fact that responsive records were ultimately produced and some were classified in a way to be withheld, we’re satisfied that the Respondent’s search efforts were reasonable.
From there, the burden shifts back to Petitioner to show that the search efforts were not reasonable, a showing he hasn’t made. As a result, we find that the Respondent performed a reasonable search and, by disclosing the responsive records that it did, has satisfied its duty to Petitioner.
In conclusion, we note that as Petitioner now better understands the distinction between record production and restriction, he may still appeal the classifications of those records that were withheld if he desires to challenge the validity behind why the Respondent restricted access to some of the records he seeks. We also encourage the Respondent to proactively seek clarification on confusing record requests rather than rely on its own devices to interpret what may be difficult to understand. We believe that, although there is no duty in GRAMA to do so, cooperative collaboration will not only better effectuate GRAMA’s core policies, but it will also make processing record requests more efficient and cost-effective for governmental entities than to go through a cumbersome appeals process. See Utah Code § 63G-2-102; and cf Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25 (“GRAMA does not contemplate adversarial combat over record requests.”).
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., Chair Pro Tem, Williams, K., Biehler, E., Buchanan, M., and Peterson, L. voted unanimously in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KEATON YEATES, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent,
DECISION AND ORDER
Case No. 24-45
By this appeal, Keaton Yeates (“Petitioner”), requests records allegedly held by Utah Department of Corrections (“Respondent”).
FACTS
On December 29, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested a “letter from Amy Konkel, CMHC, MIO Program 6/15/2022.” Respondent denied the request on January 5, 2024, pursuant to Utah Code § 63G-2-305(14) because the letter was a recommendation to the Board of Pardons and Parole.
Petitioner appealed the denial to Respondent’s chief administrative officer (“CAO”). Petitioner reemphasized his desire to use the letter as evidence in an upcoming lawsuit against the Board of Pardons in District Court. The CAO upheld the denial on February 6, 2024.
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 record is properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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 protected is not a public record. Utah Code § 63G-2-201(3)(a). When a record is properly classified as protected under Section 63G-2-305, we are to undertake a weighing analysis where we weigh “the various interests and public policies pertinent to the classification and disclosure or nondisclosure” and order the release of the records if the interest favoring access is “greater than or equal to” the interest favoring restriction. Utah Code § 63G-2-403(11)(b). When conducting the weighing analysis, the courts have instructed that “the balancing analysis under GRAMA must be tethered to the specific interests of the parties and the particularized application of the relevant public policies at issue.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶51.
With respect to the classification at issue, GRAMA protects records that, if disclosed, would reveal recommendations made to the Board of Pardons and Parole by an employee of or contractor for the Department of Corrections that are based on the employee’s or contractor’s supervision, diagnosis, or treatment of a person within the Board’s jurisdiction. Utah Code § 63G-2-305(14). Of course, one policy behind this protective classification is the safety of the employee making the recommendation to the Board of Pardons and Parole. If an employee of the Respondent makes an unfavorable recommendation to the Board concerning an inmate’s parole, it’s reasonable to suppose that the inmate could consider retaliating against the employee if the inmate discovered the unfavorable recommendation. Furthermore, if employees and contractors knew that their recommendations concerning inmates were readily made available under GRAMA, it’s also reasonable to suppose that future recommendations could be chilled. With these policies in mind, we look at the records at issue.
The Committee reviewed the disputed record in camera. Upon our review, we find that the disputed record does contain a substantive recommendation to the Board of Pardons and Parole made by an employee or contractor of the Respondent. Thus, it is classified correctly.
Petitioner’s interest in the records is that he claims he needs it as an “evidentiary exhibit for a Rule 65b/Habeas Corpus Petition for Extraordinary Relief.” In essence, Petitioner states that he intends to bring a federal action against the Respondent for a civil rights violation he has allegedly incurred.
When we weigh the interest in access to the record, as tethered to Petitioner’s specific interest, against the policy reason behind Subsection 63G-2-305(14), we find that the interest favoring restricting access outweighs the interest favoring disclosure. In our position, we cannot discount the potential safety risk that could reasonably occur if we order the record to be disclosed. In a court action, Petitioner will be afforded discovery, which is not permitted in these proceedings. See Utah Code § 63G-2-403(10)(a). During discovery, a judge can determine whether the recommendation letter has relevance to his complaint, and the extent to which it can be disclosed. Accordingly, we find that the record is properly classified and withheld.
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., Pro Tem, Williams, K., Biehler, E., Buchanan, M., and Dubovik, N. voted in favor of and joined in this Decision and Order.
Committee member Peterson, L. voted in opposition to this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
LOGAN CITY, Respondent,
DECISION AND ORDER
Case No. 24-53
By this appeal, Brady Eames (“Petitioner”), requests records allegedly held by Logan City (“Respondent”) (the “City”).
FACTS
On February 28, 2024, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested “Each and every calendar/schedule revealing the public business actions taken by Holly Daines during her tenure as Mayor.” On February 29, 2024, Mr. Eames requested “[e]ach financial document that reveals the amounts of interest income earned by the citizens of Logan City from the investment of their public funds transferred by the following persons to ‘Moreton Asset Management LLC’ and entrusted to the ‘custodian’ and ‘safe keeping location’ recognized as ‘Wells Fargo Bank.’”
On or about March 5, 2024, the City responded to the Petitioner that “pursuant to Utah Code Ann. §63G2-203(8)(a), the City” would not process the request until he paid his outstanding $75 balance.
In an unrelated appeal between the parties, the State Records Committee (“Committee”) declared Petitioner a vexatious requester on March 21, 2024, and ordered that Respondent was relieved of any duty to respond to Petitioner’s GRAMA requests for a period of twelve months from the date of the order. However, our order was admittedly unclear as to whether it applied to then-pending requests that Petitioner had filed with Respondent prior to the vexatious order. Out of an abundance of caution, Respondent continued to process and respond to pending requests, including those at issue before us now.
To rectify the confusion in our vexatious order, we amended our vexatious order on April 29, 2024, to clarify that Respondent was relieved of its duty to respond to pending requests filed before our initial order. In the meantime, Respondent sent Petitioner certain responsive documents to his then-pending requests, including two flash drives with requested records.
Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”), on April 6, 2024, arguing that one of Respondent’s staff had denied him records relating to “interest income earned by the citizens of Logan City from the investment of their public funds transferred to Moreton Asset Management LLC and entrusted to the custodian and safe keeping location recognized as Wells Fargo Bank.” Petitioner also claimed that he was denied Mayor Daines’s calendar. The CAO responded: “Attached is the response for ‘Interest Income Records’ and in regard to [the Mayor’s] business calendar, these documents are not a public record as per UCA 63G-2-103(b)(ix) ... Therefore ... your appeal for the request titled ‘Ms. Holly Daines business calendar is DENIED.’”
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On July 18, 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 Respondent has a duty to respond to Petitioner’s record requests.
STATEMENT OF REASONS FOR DECISION
Utah law grants the Committee the authority to declare an individual a “vexatious requester” and subsequently relieve a governmental entity from the duty to responding the individual’s record requests for a period of time that may not exceed twelve months. Utah Code § 63G-2-209(8). That Section also defers to the Committee’s quasi-judicial authority in determining the appropriate relief, so long as the period of relief does “not exceed one year.” Utah Code Section § 63G-2-209(8)(b). To date, there have been only two vexatious requester appeals that have come before us since Section 209 was enacted. In both cases, we ruled that the relief granted to the governmental entity included not having to respond to then-pending requests. See Office of the State Treasurer v. Eames, Decision and Order no. 23-60, Utah State Records Committee (entered Nov. 28, 2023); and Logan City v. Eames (supra). But what happens when a governmental entity is granted relief under a vexatious requester order and continues to process pending requests anyway?
Under normal circumstances where such an event occurs, we’d be faced with settling the question of whether the governmental entity waived the relief we granted it and therefore must continue filling the request. However, in this case, it was our lack of clarity in the original order that caused Respondent to act precautiously and begin filling the pending requests at issue. It wasn’t until several weeks after our order, we revisited our decision and amended the order to include relief for pending requests. By that time, Respondent had partially filled the record requests. Because of this, it would be improper for us to say that Respondent waived their right to ignore the record requests. Thus, in light of our Amended Decision and Order no. 24-22, we find that Respondent has no duty to continue filling the requests before us and need not respond to Petitioner’s requests for one year from the date of our Amended Decision and Order.
Because our decision is based on Respondent’s duty to continue with the request, we need not address the merits of Petitioner’s appeal.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 30 day of July 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., Chair pro tem, Williams, K., Biehler, E., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
",Denied,2024-07-23T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JARED KUMMER, Petitioner, v.
SEVIER SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 24-27
By this appeal, Jared Kummer (“Petitioner”), requests records allegedly held by Sevier School District (“Respondent”).
FACTS
On November 21, 2023, the Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested: “a copy of the redacted surveillance footage from [Eric Baker’s] period 1 class on 11/17/22. I request a full copy of the surveillance and I am willing to pay for the redaction of students. I request that all educators or aids remain fully unredacted.”
The records manager for Respondent responded to the request, by denying the request for the video, claiming that the video was not a public record under GRAMA but governed by the Federal Educational Rights and Privacy Act (“FERPA”).
Petitioner appealed the decision to Respondent’s chief administrative officer (“CAO”). The CAO upheld Respondent’s decision saying “the surveillance video you have requested is not subject to the Government Records Access and Management Act (GRAMA). See Utah Code Ann. §63G-2-107(2)(c). The video is an education record governed by the Family Educational Rights and Privacy Act (FERPA). FERPA does not allow us to provide these items without consent. See U.S.C. §1232g.”
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On April 18, 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 video may be subject to GRAMA’s disclosure requirements and if it should be disclosed.
STATEMENT OF REASONS FOR DECISION
Currently on appeal before the Third District Court is Kummer v. Sevier County School District, Case No. 230600084 (3rd Dist. Ct.). That case is the consolidated appeal of both Kummer v. Sevier County School Dist. Decision and Order no. 2023-36, Utah State Records Committee (entered Aug. 28, 2023) and Kummer v. Sevier County School District, Decision and Order no. 2023-29, Utah State Records Committee (entered Nov. 28, 2023). In those cases, we decided that a surveillance camera at South Sevier Middle School that captured a P.E. class “endurance day” involving the Kummer’s daughter was an education record under FERPA, but still subject to GRAMA. Each order was individually appealed and then consolidated since the facts were identical. The appeal in district court will review the Committee’s decision and will then either affirm or reverse our decision in those cases. As a result, we believe it prudent to await the court’s decision in that appeal before we review the case before us. Accordingly, we continue this hearing to a later date.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is continued to the first regularly scheduled meeting that will occur after the third district court issues a decision on the merits in case no. 230600084.
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).
Entered this 29 day of April 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
GARY EATCHEL, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 21-37
By this appeal, Petitioner, Gary Eatchel, requests access to records held by Respondent, Utah Department of Corrections.
FACTS
On December 15, 2020, Mr. Eatchel submitted a Government Records Access and Management Act (GRAMA) request to Respondent, requesting a copy of “Initial Contact Report (ICR), Incident Reports, Narratives, Attachments, and Supplements for incident/case #338525.” Mr. Eatchel wrote on Respondent’s GRAMA request form that he was entitled to a fee waiver because he was the subject of the records even though the form only allowed requests for a fee waiver to be made by indigent inmates. On December 24, 2020, Respondent mailed a Notice of Rejection for Records Request to Mr. Eatchel, indicating that Respondent’s records showed that Mr. Eatchel was not indigent, and stating that Mr. Eatchel “must send a money transfer to pay for the copies (approximately 2 to 3 dollars).”
On December 31, 2020, Mr. Eatchel submitted an appeal to the Chief Administrative Officer. In his appeal, Mr. Eatchel acknowledged that he was not indigent but again argued that he should be eligible for a fee waiver because he is the subject of the requested records. In a letter dated February 24, 2021, James Hudspeth, Respondent’s Deputy Director and CAO, upheld the fee waiver denial and asked Mr. Eatchel to “resubmit your GRAMA request with a money transfer.” Mr. Hudspeth stated that “it is clear from the plain language of GRAMA that the Utah Legislature intended the person requesting the public records, not taxpayers, to bear the costs associated with the retrieval and copying of responsive records, with three limited exceptions. […] Even if a person meets at least one of those exceptions, it’s entirely up to UDC to waive the fee—or not.”
Mr. Eatchel filed an appeal with the State Records Committee (“Committee”). On July 8, 2021, the Committee held a hearing where the parties were allowed to participate in person and electronically. After carefully considering the parties’ arguments and the evidence presented, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). A governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Utah Code § 63G-2-201(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4).
2. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2- 203(6)(a). The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2- 203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. When determining “reasonableness,” the reviewing body assesses:
…whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver: when releasing the record primarily benefits the public, the requester is the subject of the record, or the requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. [Jordan River, 2018 UT 62, ¶ 53, 435 P.3d 179, 189]
Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2- 203(6)(b)(ii).
3. In the present case, testimony was presented that Respondent failed to consider whether the requester is the subject of the record when assessing Mr. Eatchel’s request for a fee waiver. A review of Respondent’s fee waiver form shows that it only allows inmates to request a fee waiver based upon a claim of indigency. Counsel for Respondent also stated that it is Respondent’s “policy to require inmates who are not indigent to pay costs associated with their GRAMA requests.”
4. Although the Utah Legislature provides governmental entity great discretion when determining whether a request for a fee waiver should be granted by using the phrase “may fulfill a record request,” the Legislature does not provide similar discretion for governmental entities to consider the three bases for granting a fee waiver request in Utah Code § 63G-2- 203(4)(a-c). Instead, the language of the statute states that a governmental entity is “encouraged” to grant a fee waiver “if it determines that…” As noted by the Utah Supreme Court in Jordan River, the determination of whether a governmental entity reasonably denied a request for a fee waiver is based upon a review of “whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver.” Failure of a governmental entity to consider each of those circumstances can be a basis for a finding by a reviewing body that the governmental entity’s denial of a request for a fee waiver was an unreasonable denial. See, Sullivan v. Utah Dept. of Corrections, State Records Case No. 20- 17 (Apr. 20, 2020).
5. After having considered all of the evidence and testimony presented, the Committee finds that Respondent’s denial of Mr. Eatchel’s request for a fee waiver was an unreasonable denial. A governmental entity must consider all of the circumstances under which the Legislature through GRAMA encourages a fee waiver outlined in Utah Code § 63G-2-203(4)(a-c). The evidence provided showed that Respondent failed to consider Utah Code § 63G-2-203(4)(b) when making its decision to grant or deny Mr. Eatchel’s request for a fee waiver. Accordingly, Respondent’s decision denying Mr. Eatchel’s request for a fee waiver is reversed.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Gary Eatchel, is hereby GRANTED.
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).
Entered this 19 day of July 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 21-44
By this appeal, Petitioner, Brady Eames, requests a fee waiver for records held by Respondent, the Utah Attorney General’s Office (“AG’s Office”).
FACTS
On February 26, 2021, Mr. Eames made a request for records from the Utah Prosecution Council which is administered by the AG’s Office. Mr. Eames was informed that some of the requested records were publicly available, but was also informed that an initial search of digital records dating back to 2014 produced no responsive records. However, Mr. Eames a search of hard copy records back to 2002 could produce responsive records, but given the age of the records and the large quantity of physical records, any further searches would be time consuming and costly and would require the payment of a fee deposit.
Mr. Eames filed an appeal of the decision requiring payment of a fee deposit to the chief administrative officer for the AG’s Office. In a letter dated April 6, 2021, Daniel Burton, Chief of Policy and Legislative Affairs, denied Mr. Eames’ appeal finding that providing the records “would still require a substantial amount of work to locate and identify the records, which justifies a fee deposit assessed here.”
On April 15, 2021, Mr. Eames filed an appeal with the State Records Committee (“Committee”). On August 12, 2021, the Committee held a hearing during which the parties were allowed to participate electronically. 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.
STATEMENT OF REASONS FOR DECISION
1. A person has the right to inspect a public record free of charge and take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include: (1) The cost of staff time for compiling or formatting the record into an organization or media to meet the person’s request; or (2) The cost of staff time for search, retrieval and other direct administrative costs for complying with a request. Utah Code § 63G-2-203(2)(a)(i) & (ii).
3. A governmental entity may require payment of future estimated fees before beginning to process a request if fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i).
4. The Government Records Access and Management Act specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).
5. The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
6. After having considered all of the evidence and arguments presented by both parties, the Committee finds that the AG’s Office’s denial of Mr. Eames’ request for a fee waiver was not an unreasonable denial. The AG’s Office properly considered the statutory factors found in Utah Code § 63G-2-203(4) finding that Mr. Eames’ records request does not primarily benefit the public. Accordingly, the Committee upholds the AG’s Office’s denial of Mr. Eames’ request for a fee waiver.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames, is hereby DENIED.
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).
Entered this 23 day of August 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, Petitioner, v.
UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.
DECISION AND ORDER
Case No. 21-54
By this appeal, Petitioner, Eric Peterson, a reporter with the Utah Investigative Journalism Project, seeks access to records held by Respondent, the Utah Department of Public Safety.
FACTS
On February 12, 2021, Mr. Peterson made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Peterson requested records related to a protest/demonstration that took place on January 6, 2021 at the Utah State Capitol. On March 31, 2021, Mr. Peterson amended his original records request. Mr. Peterson’s records requests were denied by Respondent based upon the records being exempt from GRAMA pursuant to Utah Code § 63G-2-106. Mr. Peterson filed an appeal of the denial and in a letter dated April 19, 2021, Respondent’s Quality and Process Improvement Director upheld the previous denial.
Mr. Peterson filed an appeal with the State Records Committee (“Committee”). Prior to hearing the appeal, Mr. Peterson submitted a letter to the Committee “to clarify the issues” in his appeal. In his letter, Mr. Peterson stated that records had been provided by Respondent through negotiations resulting in “more issues at dispute.” The issues Mr. Peterson stated that should be addressed by the Committee in his appeal were: (1) Denial of an initial contact report from a second January 6, 2021 incident at the Utah State Capitol; (2) Redactions of the basic narrative from the second January 6, 2021 incident; and (3) An unreasonable fee regarding production of those records.
On October 28, 2021, 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.
STATEMENT OF REASONS FOR DECISION
1. Based upon the written materials presented and the testimony given during the hearing, it became apparent to the Committee that any issues regarding Mr. Peterson’s February 12, 2021 and March 31, 2021 amended records requests had already been resolved and/or were not argued before the Committee. The issues presented in Mr. Peterson’s “clarification” of the issues were not issues related to Mr. Peterson’s initial records requests. In fact, the testimony demonstrated that records relating to a second January 6, 2021 incident are not records responsive to Mr. Peterson’s February 12, 2021 or March 31, 2021 records requests. Legal Counsel for Respondent argued that these issues were not ripe for appeal to the Committee because “[n]o appeal of this GRAMA request has been made – because it has not been denied.”
2. Accordingly, the Committee finds that Mr. Peterson’s appeal should be denied because no issues regarding Mr. Peterson’s February 12, 2021 records request or his March 31, 2021 amended records request have been presented to the Committee. The issues presented by Mr. Peterson’s clarification letter are not properly before the Committee at this time because the appeals process has not yet concluded.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is hereby DENIED.
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).
Entered this 8 day of November 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEPHEN PACE, Petitioner, v.
SALT LAKE CITY CORPORATION, Respondent.
DECISION AND ORDER
Case No. 21-33
By this appeal, Petitioner, Stephen Pace, seeks access to records held by Respondent, Salt Lake City Corporation.
FACTS
On December 17, 2020, Mr. Pace filed a request for records with Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Pace requested records “related to the former Salt Lake City Commission’s actions in the late 1970s to modify certain land use regulations.” The request was sent to Vivian Saumure, office manager for the Salt Lake City Attorney’s Office. Ms. Saumure sent a “‘Request for Clarification’” to Mr. Pace on January 5, 2021, “in order to attempt to provide records that [were] responsive to that request.” On January 6, 2021, Mr. Pace submitted two responses to Ms. Saumure’s Request for Clarification.
In an email dated January 8, 2021, Mr. Pace informed the Salt Lake City Mayor’s Office that “he was appealing the City’s ‘failure to respond’ to [his GRAMA request], but the text [of his email] therein indicated that Mr. Pace was responding to the Request for Clarification.” Thereafter Respondent provided responsive records to Mr. Pace, but noted that “[s]ince that request relates to records of events in the 1970s, it is likely that some of the records sought by Mr. Pace have not been in the City’s possession for a very long time.”
Mr. Pace filed an appeal with the Utah State Records Committee (“Committee”). On May 13, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the parties' arguments and the evidence presented, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In response to a request for a record, GRAMA does not require a governmental entity to create a record. Utah Code § 63G-2-201(8)(a).
2. Counsel for Respondent argued that all records responsive to Mr. Pace’s records request have been provided to Mr. Pace. Counsel stated that after a thorough search, no other records could be found that were responsive to Mr. Pace’s records request.
3. After having considered the evidence and testimony presented in the case, the Committee is persuaded that Respondent did a thorough search and does not possess any additional records that are responsive to Mr. Pace’s records request. It is reasonable to believe that Respondent no longer possesses records related to the Salt Lake City Commission from the 1970’s.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Stephen Pace, is hereby DENIED.
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).
Entered this 24 day of May 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NATE CARLISLE on behalf of KSTU-FOX 13 UTAH, Petitioner, v.
BEAVER COUNTY, Respondent.
DECISION AND ORDER
Case No. 21-40
By this appeal, Petitioner, Nate Carlisle on behalf of KSTU-Fox 13 Utah, requests access to records allegedly held by Respondent, Beaver County.
FACTS
In an e-mail dated January 7, 2021, Mr. Carlisle, an investigative reporter and producer with KSTU-Fox 13 Utah (“Petitioner”), filed a request for records pursuant to the Government Records Access and Management Act (GRAMA) with Robert C. Pyles, Administrative Services Coordinator for Beaver County. Mr. Carlisle requested “a copy of what’s commonly known as the ‘Brady List’ maintained by your county’s prosecutors.”
In a letter dated March 15, 2021, Leo G. Kanell, Deputy County Attorney for Respondent, stated that a “Brady List” may include information from a criminal background check which has been classified as private pursuant to Utah Code § 63G-2-302(2)(a), and therefore, “[a]ny ‘Brady’ list associated with this office has been classified as private [and] is not available to the public.” Mr. Carlisle filed an appeal with the County Commissioners for Respondent, who denied the appeal at a meeting held on March 16, 2021.
Mr. Carlisle filed an appeal with the State Records Committee (“Committee”) in a letter dated April 8, 2021. On July 8, 2021, the Committee held a hearing. 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.
STATEMENT OF REASONS FOR DECISION
1. In response to a request for a record pursuant to GRAMA, a governmental entity is not required to: (1) Create a record; (2) Compile, format, manipulate, package, summarize, or tailor information; or (3) Provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(a-c).
2. In the present case, Petitioner has requested a copy of Respondent’s “Brady List.” Mr. Carlisle explained that he is seeking a list created by county prosecutors and shared with defense attorneys pursuant to Brady1 regarding officers or employees “for whom courts or prosecutors found wrongdoing or who committed criminal conduct.”
3. Respondent initially denied the request claiming that any such records would be considered private records pursuant to Utah Code § 63G-2-202(2)(a). However, counsel for Respondent during the hearing stated that the Beaver County Attorney’s Office did not possess a “Brady List” regarding employees and officers. Counsel further stated that information regarding officers or employees who were found to have committed wrongdoings or criminal conduct that had been shared with defense attorneys pursuant to Brady may exist in individual criminal case files, or with the Utah Department of Public Safety regarding officers.
4. After having considered the evidence presented, the Committee is unconvinced that Respondent possesses a “Brady List” record responsive to Petitioner’s records request. While it may be true that some county prosecutor offices may create a “Brady List” which is shared with criminal defense attorneys, the testimony presented by Respondent holds that a Brady List has not been created by the Beaver County Attorney’s Office.
1 In Brady v. Maryland 373 U.S. 83, 83 S.Ct. 1194 (1963), the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Material shared by the prosecution to the defense is typically referred to now as “Brady Material”, “Brady Evidence”, or “Brady Disclosure.”
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nate Carlisle on behalf of KSTU-Fox 13 Utah, is hereby DENIED.
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).
Entered this 19 day of July 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LIONEL TREPANIER, Petitioner, v.
UTAH SCHOOL AND INSTITUTIONAL TRUST LANDS ADMINISTRATION, Respondent.
DECISION AND ORDER
Case No. 21-48
By this appeal, Petitioner, Lionel Trepanier, requests a fee waiver for records held by Respondent, the Utah School and Institutional Trust Lands Administration (“SITLA”). Mr. Trepanier claimed that he qualifies for a fee waiver because his request benefits the public rather than a specific individual. After holding a hearing on September 9, 2021 during which the parties were allowed to present their arguments and evidence, the State Records Committee (“Committee”) issues the following Decision and Order:
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (“GRAMA”) specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).
2. The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
3. It is clear to the Committee that the requirements of Utah Code § 63G-2-203(4) apply to SITLA. Although SITLA argued that they should be exempt because they are not funded by taxpayer funds, GRAMA applies to SITLA because it was “established by the government to carry out the public’s business.” See, Utah Code § 63G-2-103(11)(b)(i).
4. However, after having considered all of the evidence and arguments presented by both parties, the Committee finds that SITLA’s decision to deny Mr. Trepanier’s request for a fee waiver was not an unreasonable denial. It was reasonable for SITLA to conclude that Mr. Trepanier’s request primarily benefited a person and not the public. Accordingly, the Committee upholds SITLA’s denial of Mr. Trepanier’s request for a fee waiver.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Lionel Trepanier, is hereby DENIED.
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).
Entered this 20 day of September 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SCOTT GOLLAHER, Petitioner, v.
MORGAN COUNTY, Respondent.
DECISION AND ORDER
Case No. 21-60
By this appeal, Petitioner, Scott Gollaher seeks access to records allegedly held by Respondent, Morgan County.
FACTS
On June 28, 2021, Mr. Gollaher made a request for records pursuant to the Government Records Access and Management Act from Respondent. Mr. Gollaher requested a copy of all billings received from, and payments made to, Peter Daines regarding his appellate representation of Mr. Gollaher.
Mr. Gollaher filed an appeal with the State Records Committee (“Committee”) on August 23, 2021. At a hearing held on December 17, 2021, the parties requested that the Committee continue the appeal in order to allow the parties additional time to work with the Utah Government Records Ombudsman. The Committee voted unanimously to grant the parties’ request for a continuance.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher, is hereby CONTINUED.
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).
Entered this 29th day of December 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARK ALLEN, Petitioner, v.
UTAH COUNTY, Respondent.
DECISION AND ORDER
Case No. 21-36
By this appeal, Petitioner, Mark Allen, seeks access to records allegedly held by Respondent, Utah County.
FACTS
On December 23, 2020, Mr. Allen filed a records request with Utah County pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Allen requested copies of all cell phone texts between Utah County Commissioner Bill Lee and two specified individuals from January 1, 2020 to the date of the request. Mr. Allen also requested copies of all incoming and outgoing messages related to Bridal Veil Falls and public comments regarding Bridal Veil Falls between November 1, 2020 and December 14, 2020. In an email dated January 6, 2021, a paralegal with the Utah County Attorney’s Office denied Mr. Allen’s request for records of telephonic communication involving Commissioner Lee stating that “Utah County does not pay for his private cell phone and subsequently we do not prepare, own, receive or retain the associated records.”
In a letter dated January 28, 2021, Mr. Allen filed an appeal with the Chair of the Board of County Commissioners, stating that “the records…are of great interest to the public process of protecting a public asset, namely Bridal Veil Falls.” After no response was received by Mr. Allen from Respondent, Mr. Allen filed an appeal with the State Records Committee (“Committee”). On June 10, 2021, the Committee held a hearing where the parties were allowed to participate in person and electronically. After carefully considering the parties’ arguments and the evidence presented, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In enacting GRAMA, the Legislature recognized the public’s constitutional right of access to information concerning the conduct of the public’s business. Utah Code § 63G-2-102(1)(a). It is the Legislature’s intent through GRAMA to promote the public’s right of easy and reasonable access to unrestricted public records. Utah Code § 63G-2-102(3)(a). Similarly, the Legislature “finds and declares” in Utah’s Open and Public Meetings Act that “the state, its agencies and political subdivisions, exist to aid in the conduct of the people’s business.” Utah Code § 52-4-102(1).
2. Under GRAMA, a “record” is defined to include electronic data: (1) That is prepared, owned, received, or retained by a governmental entity or political subdivision; and (2) Where all of the information in the original is reproducible by photocopy “or other mechanical or electronic means.” Utah Code § 63G-2-103(22)(a). A record under GRAMA is a public record unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2).
3. In the present case, County Commissioner Bill Lee is one of three elected county commissioners for Utah County. Mr. Allen requested copies of all cell phone texts between Commissioner Lee and two specified individuals, copies of all incoming and outgoing messages related to Bridal Veil Falls, and public comments regarding Bridal Veil Falls. Mr. Allen argued that decisions regarding the potential development of Bridal Veil Falls is an issue of great public interest. Respondent argued that these records should not be considered records under GRAMA because “Utah County does not prepare, own, receive, or retain private cell phone telephonic communications of County employees, including Utah County Commissioners.”
4. The Committee has previously addressed issues involving communications by elected or appointed officials using personal e-mail accounts or personal electronic devices. In Cromar v. City of Cedar Hills, State Records Committee Case No. 12-11 (June 26, 2012), the Committee ordered release of e-mail communications “using whatever e-mail address” between Cedar Hills City Council members that were prepared, owned, received, or retained by Cedar Hills. In Henderson v. San Juan Cty., State Records Committee Case No. 19-33 (Sept. 23, 2019), the Committee found that texts created by a county commissioner in his public capacity as a commissioner as opposed to his capacity as a private individual “may be considered ‘records’ under GRAMA pursuant to Utah Code § 63G-2-103(22)(a).” The Committee further stated that:
Given the Legislative declaration of public policy stated in Utah’s Open and Public Meetings Act (“OPMA”) that political subdivisions “take their actions openly” and “conduct their deliberations openly,” it would be inappropriate for a public official to attempt to circumvent the requirements of OPMA and GRAMA by using a private device while “conduct[ing] the people’s business.”
5. The Committee reaffirms that a record prepared by a government employee within his or her capacity as a government employee, may be considered a “record” subject to GRAMA. Additionally, in the case of government employees being an elected or appointed official, there should be a higher standard of transparency in order to allow the general public the opportunity to review how these officials “conduct the people’s business.”
6. Based upon the evidence presented, the Committee is convinced that any text messages sent or received by Commissioner Lee concerning Bridal Veil Falls on his personal cell phone should be considered records subject to GRAMA pursuant to Utah Code § 63G-2-103(22)(a). Even though such communications may have occurred through a personal cell phone, there is little question that communications by Commissioner Lee regarding Bridal Veil Falls would be related to his position as a Utah County Commissioner and not related to his capacity as a private citizen. Accordingly, the Committee finds that Commissioner Lee’s communications in this case may be considered records “prepared…by a governmental entity” subject to GRAMA.
7. The second question presented to the Committee is whether Respondent possesses the requested records. Adam M. Beck, Deputy Utah County Attorney and Legal Counsel for Respondent argued that the records cannot be produced to Mr. Allen because Respondent does not possess the alleged records. In his written legal statement provided to the Committee, Mr. Beck states that the Utah County Attorney’s Office contacted Commissioner Lee and the Utah County Commission Office directly to inquire into the existence of any responsive records. Mr. Beck wrote that the Utah County Attorney’s Office “has made every effort to comply with Mr. Allen’s GRAMA request” and that a “thorough search of the records that [Respondent] maintains has not yielded any responsive records nor has any associated Utah County employees identified a record that would be responsive to Mr. Allen’s request.” Mr. Beck further stated that there is no factual evidence to suggest that Commissioner Lee actually used his private cell phone to communicate with the individuals named by Mr. Lee in his records request.
8. After having considered the arguments and the evidence presented to the Committee, the Committee is persuaded that Respondent does not possess any records responsive to Mr. Allen’s records request. Without any persuasive evidence that Respondent possesses the requested records, the Committee will not order Respondent to provide a record the Committee does not believe Respondent possesses. However, it is the Committee’s expressed hope that records management practices of governmental entities will be changed in the near future in order to allow the public to have greater access to electronic public communications by public officials acting within their capacity as public officials, regardless of whether the communications are made through public or private electronic devices.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Allen, is hereby DENIED.
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).
Entered this 21 day of June 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARK TRACY, Petitioner, v.
EMIGRATION IMPROVEMENT DISTRICT, Respondent.
DECISION AND ORDER
Case No. 21-45
By this appeal, Petitioner, Mark Tracy, requests access to records allegedly held by Respondent, Emigration Improvement District (“District”).
FACTS
On February 11, 2021, Mr. Tracy made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the District. Mr. Tracy requested all fire flow test results of water system 18143 owned by the District and operated by Simplifi Company since August 1, 1998.
In an e-mail dated February 24, 2021, Jeremy Cook, legal counsel for the District, stated that based upon a decision made on February 10, 2021 awarding attorney fees against Mr. Tracy, the District “will not process the attached GRAMA request until the amounts of $5,758.50 is paid in full.” Mr. Tracy filed an appeal with the chief administrative officer for the District on March 24, 2021, and after no response was made by the District, an appeal was filed with the State Records Committee (“Committee”). On August 12, 2021, the Committee held a hearing during which the parties were allowed to participate electronically. 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.
STATEMENT OF REASONS FOR DECISION
1. Pursuant to GRAMA, a person has the right to inspect a public record free of charge and take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). A governmental entity may require payment of fees not paid by the requester from previous requests before beginning to process a request. Utah Code § 63G-2-203(8)(a)(ii).
2. In the present case, the District required Mr. Tracy to pay the judgment amount of $5,758.50 prior to processing Mr. Tracy’s records request. The judgment was granted on February 10, 2021 after a court hearing with Judge Mark Kouris in Tracy v. Simplifi, Co., 3rd Dist. Court Case No. 200905074, and memorialized in a written decision drafted by Mr. Cook and signed by Judge Kouris dated April 15, 2021.
3. A review of the April 15, 2021 Decision and Order shows the following pertinent facts about the case. On June 10, 2020, Mr. Tracy made a records request pursuant to GRAMA “correctly designat[ing]” the governmental entity as the District. After appealing the purported denial of his records request to the District’s board of trustees, Mr. Tracy filed the district court action against two private individuals and the Simplifi Company.
4. Although being informed “at least six times by this Court, Judge Faust, the State Records Committee, [and the District’s] attorney that GRAMA requests should be made only to” the District, Mr. Tracy continued to include private individuals and the Simplifi Company in new GRAMA requests. Because of Mr. Tracy’s actions, Judge Kouris found that “Respondents should be awarded reasonable attorneys’ fees” pursuant to Utah Code § 78B-5-825(1) including attorney fees incurred responding to Mr. Tracy’s Motion to Vacate the February 10, 2021 decision. The only named parties involved in the case were Mr. Tracy, the two private individuals, and the Simplifi Company, with Judge Kouris noting that Mr. Tracy failed to include the District as a party.
5. The question before the Committee is whether attorney fees awarded in a district court case to two private individuals and a company can be the basis for not processing a request for records pursuant to Utah Code § 63G-2-203(8)(a)(ii). The language used by the statute is that before processing a request, a governmental entity may require payment of fees “from previous requests.” Although Judge Kouris ordered Mr. Tracy to pay attorney fees in the district court case, the fees were associated with the Tracy v. Simplifi, Co. case and not from a previous records request. As confirmed by the District’s legal counsel, Judge Kouris’ order did not require Mr. Tracy to pay the District any fees. Additionally, the records being requested have been classified as public records by the District.
6. Accordingly, the Committee finds that the attorney fees that Mr. Tracy has been ordered to pay by Judge Kouris, are not fees “from previous requests” to be paid to the District. Therefore, the District cannot rely upon Utah Code § 63G-2-203(8)(a)(ii) as a basis to deny Mr. Tracy access to public records. However, the District may require payment of future estimated fees before beginning to process Mr. Tracy’s request if the fees are expected to exceed $50 and may charge a reasonable fee to cover the governmental entity’s actual cost of providing the record pursuant to Utah Code § 63G-2-203(8)(a)(i) & -203(1)(a).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Tracy, is hereby GRANTED.
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).
Entered this 23 day of August 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
THOMAS SWETT, Petitioner, v.
UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 22-13
By this appeal, Petitioner, Thomas Swett, seeks access to records allegedly held by Respondent, University of Utah.
FACTS
On October 6, 2021, Mr. Swett submitted a request for records under the Government Records and Access Management Act ("GRAMA") to Respondent. Mr. Swett requested the following records from Respondent’s Health Gastroenterology Endoscopy Center and Liver Clinic (“Clinic”) between September 1, 2021 through September 30, 2021: (1) The full name, first and last, of each employee who worked a shift on each day; (2) The start time and end time of the shift for each fully named employee on each day; and (3) The team, position, assignment, role, and/or area of responsibility of each fully named employee who worked a shift on each day.
On October 15, 2021, the Director of Administration for Respondent denied Mr. Swett’s records request. Regarding the first two requests, the requested records were classified as protected and private under GRAMA because disclosure of them "would jeopardize the life or safety of an individual" and would constitute a clearly an unwarranted invasion of personal privacy pursuant to Utah Code §§ 63G-2-305(11) & -302(2)(a) & (d). Concerning Mr. Swett’s third request, Respondent denied the request stating that it was not required to create a record in order to fulfill a records request pursuant to Utah Code § 63G-2-201(8)(a) & (b).
In a letter dated October 22, 2021, Mr. Swett appealed the denial to Respondent’s Administrative Manager to the Records Officer. Mr. Swett argued that Respondent “has chosen to unlawfully deny access to all of the records requested.” Mr. Swett further argued that the response to his records request “demonstrated both an ignorance of the law and an arrogance about its duties under the law.”
After no response was provided by Respondent to Mr. Swett’s appeal within 10 business days, on November 10, 2021, Mr. Swett filed an appeal with the State Records Committee (“Committee”) pursuant to Utah Code §§ 63G-2-401(5)(b)(i) & -402(1)(a)(i). On April 21, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. After carefully considering the parties’ arguments and the evidence presented, the Committee 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 § 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. The Utah Legislature enacting GRAMA recognized the constitutional right of the public to access information concerning the conduct of the public’s business. Utah Code § 63G-2-102(1)(a). The Legislature also recognized a public policy interest in allowing a government to restrict access to certain records as specified in GRAMA “for the public good.” Utah Code § 63G-2-102(2).
3. Records the disclosure of which would jeopardize the life or safety of an individual are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(11).
4. Records concerning a current or former employee of a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, are private records if properly classified by a governmental entity but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o), or private under -302(1)(b). Utah Code § 63G-2-302(2)(a).
5. Records concerning data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are considered private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
6. Respondent provided background information regarding Mr. Swett’s records request in its written statement of facts to the Committee. According to the statement, sometime in September 2021 in conjunction with the scheduling of a procedure that would involve sedation, an employee of the Clinic told Mr. Swett that patients to the Clinic must arrange for a ride home with a trusted family member or friend following the procedure. Clinic policy did not allow release of a patient to the care of a bus, shuttle, taxi, or other public transportation. Mr. Swett “was apparently upset with or otherwise disagreed with this policy and/or the employee who delivered this message to him.”
7. Even though Mr. Swett disagreed with the Clinic’s policy, Respondent claims that Mr. Swett was “determined to track down the employee he spoke with” which is the basis for his records request. After Respondent’s Director of Support Services (“Director”) “looked into the issue,” the Director “expressed concern for that employee’s safety.” Respondent’s counsel contended:
Considering the highly charged emotions and uptick in threatening behavior directed toward hospital and clinic employees…and [the Director’s] specific concerns regarding Swett’s motivation to learn the identity and schedule of the Clinic employee he spoke with regarding the Clinic policy, [the Director] and [Respondent] believe keeping the Clinic’s employees’ schedules and shift start and end times protected is necessary to protect their safety.
8. After having carefully considered the arguments of the parties including the testimony given by Mr. Swett at the hearing concerning the events during September 2021, the Committee upholds the classification by Respondent for Request #’s 1 & 2 finding that the requested records were properly classified as protected and private pursuant to Utah Code §§ 63G-2-305(11) & -302(2)(a) & (d). Respondent appears to have withheld access to the records out of a legitimate concern for the potential safety of Respondent’s employees, which in this particular case is of greater governmental interest than any alleged general public interest in having access to the requested records.
9. In response to a records request pursuant to GRAMA, a governmental entity is not required to: (1) Create a record; (2) Compile, format, manipulate, package, summarize, or tailor information; or (3) Provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(a-c).
10. The Committee agrees with Respondent’s finding that Mr. Swett’s third request “appears to seek information rather than records.” The Committee is persuaded by Respondent’s argument that it “does not maintain any single record that provides all of the dates you seek in your request, which means that [Respondent] cannot fulfill your request without creating a record or undertaking substantial compilation, manipulation, and tailoring of information.” Accordingly, the Committee finds that Respondent was not required to fulfill Mr. Swett’s third request pursuant to Utah Code § 63G-2-201(8)(a-c).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Thomas Swett, is hereby DENIED.
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).
Entered this 2 day of May 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
AARON DAVIDSON, Petitioner, v.
ALPINE SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 22-37
By this appeal, Petitioner, Aaron Davidson, requests a fee waiver for records held by Respondent, the Alpine School District.
FACTS
On January 11, 2022, Mr. Davidson made a request for records from Respondent. Mr. Davidson was informed that there would be a cost of approximately $150.00 for the requested records. Mr. Davidson filed an appeal claiming that he had the right to freely inspect the requested records because he was the subject of the records requested. Respondent denied Mr. Davidson’s request to “freely inspect” the requested records stating that the Government Records Access and Management Act (“GRAMA”) “allows a governmental entity to charge a fee for the cost of providing a record.” Utah Code § 63G-2-203(1)
In an e-mail dated March 25, 2022, Mr. Davidson filed an appeal with the State Records Committee (“Committee”). On August 18, 2022, 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.
STATEMENT OF REASONS FOR DECISION
1. A person has the right to inspect a public record free of charge and take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include: (1) The cost of staff time for compiling or formatting the record into an organization or media to meet the person’s request; or (2) The cost of staff time for search, retrieval and other direct administrative costs for complying with a request. Utah Code § 63G-2-203(2)(a)(i) & (ii).
3. A governmental entity may require payment of future estimated fees before beginning to process a request if fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i).
4. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).
5. The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
6. Having considered the evidence, the Committee first finds that the records requested are not capable of public inspection. Petitioner sought electronic communications of individuals within the Respondent school district.
7. The Committee also finds that the agency’s decision to deny the fee waiver was not unreasonable. The agency properly considered the Petitioner’s status as subject of the record against the needs of the agency. The Respondent offered credible evidence supporting the estimated costs assessed.
8. The Committee is also not persuaded by Petitioner’s argument that the permissive language of Utah Code § 63G-2-203(4) should be read as a mandate for the agency to provide records free of charge to a requestor who is the subject of the records. Treating “may” as “shall” would undermine the plain language of the statute and it would conflict with the language at Section 63G-2-203(1), which allows as agency or entity to charge a fee associated with the cost of compiling a record. If “may” must be replaced with “shall” throughout the applicable code provisions, an agency would be required to charge a fee and also prohibited from doing so. This would work an absurd result.
9. Finally, the Committee declines to find that the Utah Constitution requires free access to records in this case. Constitutional questions are generally outside the scope of the Committee’s review. However, it is apparent that Petitioner is relying on a constitutional provision related to criminal trial rights. The Committee takes no position on whether records would be available to the Petitioner in a criminal trial.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Aaron Davidson, is hereby DENIED.
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).
Entered this 29 day of August 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JENNIFER ORTEN, Petitioner, v.
SALT LAKE COUNTY, Respondent.
DECISION AND ORDER
Case No. 22-08
On February 17, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. This appeal involves six records requests from Petitioner, Jennifer Orten. Prior to the hearing, legal counsel for Respondent, Salt Lake County, requested dismissal of the appeal based upon a failure to have all procedural steps completed prior to the appeal being heard by the Committee. The Committee was persuaded that not all issues regarding Ms. Orten’s records requests were ripe for review by the Committee, and voted unanimously to continue the hearing in order to allow the parties time to complete all procedural steps and brief all issues for proper consideration by the Committee.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jennifer Orten, is hereby CONTINUED.
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).
Entered this 28th day of February 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS, Petitioner, v.
FARMINGTON CITY, Respondent.
DECISION AND ORDER
Case No. 22-31
By this appeal, Petitioner, Adam Herbets, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, Farmington City.
FACTS
On January 19, 2022, Mr. Herbets made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Respondent. Mr. Herbets requested the following regarding a Farmington City employee: (1) Copies of all complaints filed against the employee in 2021 and 2022; (2) Copies of all attached records submitted alongside the complaints; (3) Copies of all files generated from a completed investigation; (4) Copies of all reports documenting the use of force; and (5) Copies of all electronic communication, including but not limited to emails and text messages sent by the employee and Farmington City Manager in 2022 and any responses to those sent messages. Respondent partially granted and denied the requests on February 3 and 17, 2022, stating “the records are classified as private and protected because they relate to unsustained charges against an employee or former employee of the City and privileged attorney-client communication or attorney work product.” Respondent sent a zip file to Mr. Herbets with the records that were granted under GRAMA.
Mr. Herbets filed an appeal with the State Records Committee (“Committee”). On July 21, 2022, 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. The Committee viewed the records in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies that a “record is 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. Records concerning a current or former employee are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a). However, records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee, are public records if: (1) The disciplinary action has been completed and all time periods for administrative appeal have expired; and (2) The charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o).
3. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are also protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).
4. After having reviewed the records in camera, the Committee has determined that the records were properly classified as non-public records pursuant to §§ 63G-2-302(2)(a), -305(17), and -305(18). After having considered the weighing provision found in Utah Code § 63G-2-403(11)(b), the Committee also finds that the interest favoring restriction of access outweighs the public interest favoring access to the records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, is hereby DENIED.
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).
Entered this 1day of August 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
IAN COOPERSTEIN, Petitioner, v.
UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 22-46
By this appeal, Ian Cooperstein (“Petitioner”), seeks access to records alleged to be held by the University of Utah (“Respondent”).
FACTS
On or around July 16, 2020, Petitioner submitted request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested records relating to a former employee of Respondent’s (referred to hereafter as “J.G.”) in three areas: “Documentation about [J.G.’s] early 2020 termination, [m]aterials related to his 2018 promotion, and information about the tuition assistance amounts and dates that he received.”
In a response dated May 3, 2022, Respondent notified the Petitioner that they performed a thorough search of its files and were unable to locate any records pertaining to his request for “documentation about [J.G.’s] early 2020 termination, materials related to his 2018 promotion.” In regard to Petitioner’s request for “information about the tuition assistance amounts and dates that J.G. received,” Respondent denied the request, claiming the records were classified as “private” under numerous statutes (Utah Code §§ 63G-2-302(2)(a); 63G-2-302(1)(a); 63G-2-302(2)(d); as well as 20 U.S.C. § 1232g; 34 C.F.R. § 99, and Utah Code § 63G-1-107(2)). Petitioner appealed this decision to Todd Samuelson, the Chief Administrative Officer (“CAO”), who upheld the denials.
Petitioner appealed the CAO’s decision to the Utah State Records Committee. On October 13, 2022, 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.
STATEMENT OF REASONS FOR DECISION
This appeal concerns the CAO’s denial of three requests. The first is Petitioner’s request for records relating to tuition assistance given to J.G. The second is the request for records concerning J.G.’s 2018 promotion. The third is for records pertaining to J.G.’s termination.
A. Records Request for Tuition Assistance
Utah Code § 63G-2-201(1)(a) allows a person to inspect a public record free of charge. However, if a record is governed by the Family Educational Rights and Privacy Act, 34 C.F.R. Part 99 (“FERPA”), then the GRAMA defers to those regulations for the record’s disclosure. Utah Code § 63G-2-107(2). In order to determine whether a sought-after record is governed by FERPA, we must look to that law for guidance.
Code of Federal Regulations, Title 34, Subpart D, § 99.30 prohibits the disclosure of “educational records” without the signed consent of the student. “Educational Records,” in turn, is defined as “records that are (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.” 34 C.F.R. § 99.3. Thus, as J.G. was a student and an employee of the University of Utah, Petitioner’s request for records of tuition assistance for J.G. clearly constitute “educational records” as they pertain directly to his matriculation and are maintained by the University of Utah.
However, Petitioner points to the exception listed in § 99.3 that states the term “Educational Record” does not include “records relating to an individual who is employed by an educational agency or institution, that: (A) are made and maintained in the normal course of business; (B) relate exclusively to the individual in that individual’s capacity as an employee; and (C) are not available for use for any other purpose.” 34 C.F.R. § 99.3. Respondent argues that J.G.’s tuition records pertaining to his enrollment as a student are housed not within his employment records but his student records. This, Respondent argues, makes the tuition records fit squarely within the definition of “Education Records” as they have nothing to do with this employment and, therefore, do not trigger the employment exception.
The Committee agrees with Respondent regarding the requested tuition records. Because the records pertain to Mr. Gomez’s enrollment as a student and not as an employee, the records do not relate exclusively to his capacity as an employee. Therefore, FERPA does apply and its regulations govern the disclosure of the requested records. Because FERPA governs the disclosure of the requested records, we need not address Respondent’s own classification of the records under the GRAMA.
B. Records Regarding the 2018 Promotion and 2020 Employment Termination
In regard to Petitioner’s request for records relating to the 2018 promotion and 2020 employment termination we address them together. Respondent denied both requests on the grounds that no such records exist – that Petitioner’s request is based on “erroneous assumptions and false statements” about the potential records. And in response to the termination records, Respondent goes on to argue that employment records are private and cannot be disclosed anyway. Respondent points to the GRAMA to support this contention, saying in its written Statement of Facts that “[r]ecords of an employee’s departure are only public when there have been ‘formal charges or disciplinary actions’ against the employee, all time periods for an administrative appeal have expired, and the charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o). In contrast, records of an employee’s resignation are not public. No responsive records exist in this case because there was no termination of employment.”
Naturally, we cannot compel the disclosure of records that do not exist. If a promotion didn’t occur in 2018 and an involuntary termination didn’t occur in 2020, we must affirm the Respondent’s denial, but due to the history of the parties and the volumes of GRAMA requests currently filed regarding J.G.’s employment, we will take the opportunity to briefly explain the GRAMA as it pertains to employment records. Our hope in doing so is that it will resolve potential issues we foresee arising about Petitioner’s pending records requests and minimize the parties’ need to expend resources on appeals.
The GRAMA affirms that “[a] record is public unless otherwise expressly provided by statute,” (Utah Code § 63G-2-201(2)) and is therefore open to inspection under Utah Code § 63G-2-201(1)(a). Only the records specifically classified as “private,” “controlled,” or “protected” under Sections 63G-2-302, 63G-2-303, 63G-2-304, and 63G-2-305 are deemed not public, as well as records that are protected by other statutes like FERPA, for example. Utah Code §§ 63-G-201(4); 63G-2-203(a)-(b). Therefore, to determine if a public employee’s employment records are private, we must look to the code section(s) the GRAMA specifically references to determine if employment records are named as private, as well as any code sections that declares them to be public records.
First, we note that the GRAMA does not hold all public employee employment records as private. The GRAMA expressly itemizes certain public employee records as public and, therefore, open to disclosure. Utah Code § 63G-2-301(2)(b) states that “the name, gender, gross compensation, job title, job description, business address, business email address, business telephone number, number of hours worked per pay period, dates of employment, and relevant education, previous employment, and similar job qualifications of a current or former employee or officer of the governmental entity . . . “ are generally public records. Also § 63G-2-301(3)(o) states that if the requested records are not restricted under GRAMA codes, “records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee” are also normally public as long as “the disciplinary action has been completed and all time periods for administrative appeal have expired; and the charges on which the disciplinary action was based were sustained.” From these two code sections alone, we see that the GRAMA does not create a blanket protection over a state employee’s employment records.
With that in mind, we next examine the specific types of employment files that the GRAMA expressly shields from disclosure. To do this, we look at the code sections the GRAMA instructs us to: 302, 303, 304, and 305, for unless the employment records are specifically named in any of those sections, the records in question are deemed public. Utah Code § 63G-2-201(4).
Section 63G-2-303 concerns the records of “at-risk” government employees which is inapplicable to Petitioner’s request. And sections 304 and 305 do not specifically itemize a regular public employee’s records under their protective classifications. However, Section 302 does list certain employment records that constitute a “private” classification – specifically, three types.
First, subsection 302(1)(g) states that “employment records concerning a current or former employee of, or applicant for employment with, a governmental entity that would disclose the individual’s home address, home telephone number, social security number, insurance coverage, marital status, or payroll deductions” are deemed private. Utah Code § 63G-2-302(1)(g). Second, a state employee’s drug or alcohol test records under § 63A-17-1004 are also private. Utah Code § 63G-2-302(1)(dd). And finally, “if properly classified by a governmental entity: records concerning a current of former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, but not including records that are public under Subsection 63G-2-301(2)(b) or 63G-2-301(3)(o) or private under Subsection (1)(b).” Utah Code § 63G-2-302(2)(a) (emphasis added). Thus, under the GRAMA only three specific types of employment records are classified as private by statute with the third being private only so far as the governmental custodian of the records itself has properly classified the records as such. The parties should note that this is obviously far from the notion that employment records in general are private.
Additionally, and noteworthy to this appeal, absent another statute that prohibits their disclosure, the GRAMA does not name employment termination records as a “private,” “protected,” or “controlled” record. It appears to this Committee that this appeal is based on the assumption that Petitioner’s was specifically requesting records of involuntary termination. Despite the framework of his request, his actual petition did not qualify involuntary or voluntary termination. Therefore, insofar as Petitioner appeals the denial of involuntary termination records, again, we cannot compel the disclosure of records that do not exist.
It is on this point that we offer a final note of recommendation to the parties. With roughly 200 GRAMA requests filed by Petitioner, we believe the resources of the parties would be saved if communicative efforts were made to clarify Petitioner’s requests. While we acknowledge that Respondent has no statutory obligation to seek clarification on his request, we remind it that Petitioner is a member of the public and should not be penalized for wording his requests short of 100% precision. The legislature has been clear that the GRAMA should be read by governmental entities, this Committee, and the courts upon judicial review “to promote the public’s right of easy and reasonable access to unrestricted public records,” to “prevent abuse of confidentiality by governmental entities by permitting confidential treatment of records only as provided in this chapter,” and “favor public access when, in the application of this act, countervailing interests are of equal weight.” Utah Code § 63G-2-102(3)(a), (c), & (e) (emphasis added).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ian Cooperstein, as it pertains to J.G.’s 2020 involuntary termination, 2018 termination, and tuition assistance is hereby DENIED.
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).
Entered this 24 day of October 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
",Denied,2022-10-24T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JARED PELA, Petitioner,v.
SALT LAKE CITY SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 23-03
By this appeal, Jared Pela (“Petitioner”), request records allegedly held by the Salt Lake City School District (“Respondent”).
FACTS
Petitioner’s son attends an elementary school within the Respondent’s district. The elementary school utilizes a cloud-based software called “PowerSchool” that allows for students, teachers, and parents to sign in and submit and retrieve records and information pertaining to an individual student. Such records stem from academic records to parent records and authorizations. Students and parents have their own individual accounts that are linked so that the parent can view their child’s academic records and engage with their child’s teachers.
On August 8, 2022, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking all records of access for his specific parent portal, all information pertaining to any modifications of his parent portal, including additions, deletions, and changes to his individual portal, and all attendance records for his son. The date range for responsive records was August 15, 2020, to August 8, 2022.
The Respondent replied on August 22, 2022, stating that it was sending Petitioner all the responsive records in its possession. The Respondent sent Petitioner all the requested attendance records for his son; however, the request for records relating to his parent portal was only partially fulfilled. The Respondent informed him that “records of access for the online parent portal are archived and no longer accessible when the system is upgraded, so those records only go back to the Spring of 2022.” Within the delivered portal records some documents contained redactions.
The Petitioner appealed to the Respondent’s chief administrative officer (“CAO”), arguing that archived records can be unarchived and delivered to him, and that the redactions were improper. In response, the CAO responded, agreeing that there was no basis to redact the requested records from him. The CAO further clarified that the Respondent searched its archives and found no responsive records relating to the portal request that predated February 27, 2022.
The Petitioner now appeals to the State Records Committee (“Committee”), challenging the decision and lack of record production. On January 19, 2023, 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.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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). While the GRAMA requires that an individual identify the records he seeks with “reasonable specificity,” it does not set a clear standard for the governmental entity on how to conduct its search. Utah Code § 63G-2-201(7)(b). When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance. See e.g., Deseret news Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations).
Under the FOIA, when a governmental entity receives a records request, its search must be reasonable with the reviewing court looking at the entity’s process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The issue we must review is not whether remaining records may exist, but whether the entity’s search efforts were adequate. Weisberg, at 1351. If the search is challenged by the records requester, the governmental entity then bears the burden of showing that the search was reasonable. See Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir.1990). And “reasonableness” is dependent on the circumstances in the case. Weisberg, at 1351. If it’s determined that the governmental entity performed a reasonably adequate search, our Utah Administrative Rules then require the requester to provide sufficient evidence that additional records exist and are in the entity’s possession. Utah Administrative Rule R35-2(2).
In this case, the records at issue concern Petitioner’s PowerSchool parent account. While Petitioner received some responsive records concerning the changes to his parent PowerSchool account, the Respondent could not locate records of his parent account prior to February 2022. The reason centers on the Respondent storing records on its own server, and for whatever reason, not being able to locate the requested records in its database or archives. Once the Respondent informed Petitioner that it could not locate any additional records responsive to his request, Petitioner appealed to the Respondent’s CAO. Throughout the course of Petitioner’s GRAMA request, including the pendency of his CAO appeal and several weeks thereafter, the Respondent made the following efforts to fulfill Petitioner’s request:
1. The Respondent’s Chief Information Officer, Sam Quantz, searched through its database and servers for responsive records upon receiving Petitioner’s GRAMA request.
2. On September 27, 2022, the Respondent participated in mediation with Petitioner in effort to demonstrate to him that it had exercised due diligence and good faith in turning over all responsive documents it could locate.
3. On October 27, 2022, the Respondent provided to Petitioner a notarized affidavit signed by Mr. Quantz indicating that he had searched the Respondent’s active and archived systems for all responsive records and that any responsive records found had been turned over to Petitioner.
4. On October 18, 2022, Mr. Quantz contacted PowerSchool support and discussed with them how to find any remaining responsive records that predate February, 2022. Powerschool support confirmed that Mr. Quantz had identified all possible locations in which to search for any existing responsive records.[1]
5. On October 20, 2022, the Respondent sent to Petitioner a copy of the chat log for Mr. Quantz’s October 18th support discussion with PowerSchool.
6. On November 8, 2022, Mr. Quantz again contacted PowerSchool support to clarify that PowerSchool itself holds no parent portal data on its own servers – that all of Petitioner’s parent portal data and records would be on the Respondent’s own servers. PowerSchool confirmed that to be the case under its contract with the Respondent.
7. In the conversation, Mr. Quantz asked several questions to confirm the authorization, access, and ability PowerSchool may have to parent portal data held on the Respondent’s servers. PowerSchool support confirmed that all data and records were exclusively contained on the Respondent’s servers.
At the hearing, Mr. Quantz testified that he expended thorough time and effort in exploring the problem with PowerSchool support to ensure that all possible locations for the requested records had been searched. Evidence shows that Mr. Quantz had at least one conversation with PowerSchool support and made search efforts for Petitioner’s records at 10:19 p.m., well beyond his regular work hours in his governmental capacity. We find these efforts commendable.
We see no evidence that either the Respondent or Mr. Quantz were unreasonable in their search efforts or derelict and unprofessional in their duty to Petitioner under the GRAMA. We are satisfied that a reasonable search was conducted.
In determining that a reasonable search was performed, the burden shifts to Petitioner to show that additional responsive records are on the Respondent’s possession. Utah Administrative Rule R35-2(2). Although possible inferences could be made regarding certain lower level personnel with direct connections to Petitioner’s account, these are speculative. We don’t see any direct evidence that the Respondent still holds responsive records in its possession. Accordingly, we find that the Respondent has satisfied its duty under the GRAMA.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 30 day of January 2023
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee
1. We note that Mr. Quantz testified at the hearing that he shared his screen with PowerSchool support to collaboratively navigate the Respondent’s server in search of archived and responsive records.
",Denied,2023-01-30T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, Petitioner, v.
ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 22-38
By this appeal, Petitioner, Eric Peterson, a reporter with the Utah Investigative Journalism Project, seeks access to records held by Respondent, Attorney General’s Office (“AGO”).
FACTS
On December 14, 2020, Mr. Peterson made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Peterson requested access to AGO’s review of a Department of Natural Resources investigative report from a 2018 hunt. Respondent denied the request stating that it should remain classified as protected pursuant to Utah Code § 63G-2-305(10)(a)-(e) because the release of the requested records could be expected to reasonably interfere with an ongoing criminal investigation and enforcement proceedings.
Mr. Peterson filed an appeal with the State Records Committee (“Committee”). On August 18, 2022, 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. The Committee viewed records in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Committee agrees that the records were properly classified as “protected,” pursuant to Utah Code Annotated § 63G-2-305(10)(a)-(e). Specifically, though the Committee finds that all of the subsections of Section (10) could be applicable, the Committee is most persuaded that subsection (c) justifies the classification of the record because the record is the subject of a pending criminal case.
2. The Committee also weighed whether there was a public interest in the release of the records. Utah Code Annotated §63G-2-406(1) says:
A record that is classified as protected under Subsection 63G-2-305(10), (17), (18), (23), (24), or (33) may be ordered to be disclosed under the provisions of Subsection 63G-2-401(6), 63G-2-403(11)(b), or 63G-2-404(7)(a) only if the person or party seeking disclosure of the record has established, by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.
The Committee finds that Petitioner did not establish, by a preponderance of the evidence, that there is a public interest in disclosure equal to or greater than the interest in maintaining the classification.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is hereby DENIED.
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).
Entered this 29 day of August. 2022.
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LYNN DAVID, Petitioner, v.
WASATCH COUNTY, UTAH, Respondent.
DECISION AND ORDER
Case No. 22-54
By this appeal, Lynn David (“Petitioner”), requests records allegedly held by Wasatch County, Utah (“Respondent”).
FACTS
On August 24, 2022, Petitioner submitted a request for records to Respondent pursuant to the Governmental Records Access and Management Act (“GRAMA”). The request for records was extensive, but, in sum, concerned the following:
1. Any documentation pertaining to Respondent’s meeting held on August 8, 2022, when the meeting members discussed the property located at 2399 W. Boulder Dr.
2. Cease and Desist Order Respondent issued on August 8, 2022 to BRBE, LLC, Eschenfelder Landscaping and/or William Eschenfelder.
3. Application for the grading permit submitted on August 18, 2022, to BRBE, LLC, including all documentation submitted with that application.
4. Documentation concerning a site inspection on lots 195, 207, 208, and 221 between May 1, 2020, and August 19, 2022.
5. Documentation relating to who reviewed and approved the grading permit application submitted by BRBE, LLC on August 18, 2022.
6. Documentation concerning when the BRBE grading permit was signed by the Engineering Coordinator.
7. Documentation concerning when the BRBE grading permit was approved by the planning commission.
8. Documentation concerning any conditions or stipulations attached to the approval of the BRBE grading permit application.
9. Documentation concerning the potential $750 fine when grading was done on the subject property without a permit or correction agreement from the Engineering Coordinator.
10. All communications received between July 20, 2022, and August 24, 2022, concerning the boulder extraction operation in Brighton Estates.
Respondent provided several responsive items but claimed others did not exist – specifically, Respondent maintained that there were no responsive records for items 1, 8, & 9 in its possession. Respondent also claimed that it did have responsive records for the remaining items, but that the records were protected under attorney-client privilege and would not be disclosed.
On appeal to the chief administrative officer, Petitioner argued that, due to the circumstances connected to the records he sought, more documents should exist than what were disclosed. He further argued the propriety of the protections that Respondent asserted. The chief administrative officer responded in turn by providing further information on one of Petitioner’s requested items (the titles of those county officials in attendance at the August 24, 2022, meeting)[1] and denied all other requests.
Petitioner appealed to the State Records Committee (“Committee”). In this appeal, Petitioner has conceded that whatever records have not been disclosed at this point are either not in Respondent’s possession or have been classified as “protected” due to attorney-client privilege. As Petitioner offers no evidence to dispute whether non-existent records do in fact exist, and he raises no issues about the documents he has received to this point, this appeal is narrowed to determine only whether Respondent has properly classified the privileged documents as protected under the GRAMA. If the classification is proper, the records may be restricted; if not, access should be granted.
The Committee held a hearing on November 17, 2022. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After carefully considering all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, if a governmental entity holds records that are confidential attorney-client privilege, the GRAMA determines those records are “protected” as long as the entity properly classifies them as such. Utah Code § 63G-2-305(17). When a requested record is protected under attorney-client privilege pursuant to § 305(17) the GRAMA gives the governmental entity discretion on whether it will disclose the record or not. Utah Code § 63G-2-201(5)(b). However, if the entity asserts attorney-client privilege and elects to restrict access, then the burden shifts on appeal to the requester who must show, “by a preponderance of evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1).
Whether Respondent has properly classified the responsive documents as “protected” under § 63G-2-305(17) because of attorney-client privilege, necessitates that we understand what constitutes that privilege. To do so, we first establish that the Committee is a public body charged to hear appeals between adversarial parties. Utah Code § 63G-2-502(1)(a). As a public body, holding hearings and determining appeals between adversarial interests, is, at minimum, a “quasi-judicial” task which requires us to “operate very much in the same manner as courts.” Common Cause of Utah v. Utah Public Service Com’n., 598 P.2d 1312, 1314 (Utah 1979). (ruling the Utah Public Service Commission performed quasi-judicial and judicial functions in nature and was required by law to operate very much in the same manner as courts when conducting hearings). Accordingly, as we draft orders in a manner similar to the courts, the GRAMA permits us to rely on court rulings to support our decisions. Utah Code § 63G-2-403(12)(a). In that vein, we look at how the courts determine attorney-client privilege in the context of the GRAMA.
To define privilege, we look to Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88. In that case, Southern Utah Wilderness Alliance sought records from Automated Geographic Reference Center which withheld responsive records on the grounds that they were protected under the GRAMA due to attorney-client privilege. Id. ¶9. On appeal, the Utah Supreme Court explained that the mere existence of an attorney-client relationship does not necessarily make all communications between the two confidential. Id. ¶33 (citing Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990). In order to establish privilege, “a party must establish (1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice.” Id. ¶33. Accordingly, whether Respondent has, in this instance, properly classified the responsive documents as “protected” will depend on whether these three elements are present.
Per its legal authority under Utah Code § 63G-2-403(9), the Committee voted to close the hearing and examine the responsive records in camera. Upon review, the Committee found that all documents were correspondences between official Wasatch County personnel and the County’s attorney and concerned official County business; the information conveyed within the documents was confidential; and the purpose of transferring that information was to obtain legal advice. Thus, we find that the requirements for attorney-client privilege protection set out in Southern Utah Wilderness Alliance are present and the records are therefore protected under the GRAMA.
Notwithstanding the protected classification, the GRAMA does allow a requester to pierce a governmental entity’s attorney-client privilege if he can prove by a preponderance of evidence that “the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1). In Petitioner’s appeal to Wasatch County’s chief administrative officer, Petitioner states that the Brighton Estates residents “have a right to the information and Wasatch County has a duty to provide it.” Petitioner’s Statement of Facts, p. 15. We think this claim goes too far. Petitioner and Brighton Estates residents certainly have a right to many government records, many of which were disclosed to Petitioner upon his request; however, there is no right to documents protected under attorney-client privilege. See Utah Code §§ 63G-2-201(3)(a); 63G-2-305(17). If Respondent does have a duty to break its privilege and deliver the documents, the burden is on Petitioner to establish it. Utah Code § 63G-2-406(1). But, aside from his conclusory claim that a duty of disclosure exists, Petitioner offers no reasoning or argument to support it. He has given no evidence showing us why the public interest favoring access to the records is greater than or equal to the interest favoring its restriction. Accordingly, we find that Petitioner has not satisfied the evidentiary burden the GRAMA requires to sidestep attorney-client privilege protection. Consequently, the Committee cannot order their disclosure.
ORDER
THEREFORE, for the foregoing reasons, we hereby order Petitioner’s appeal is DENIED.
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).
Entered this 29 day of November 2022
BY THE STATE RECORDS COMMITTEE
________________________________________
NANCY R. DEAN
Acting Chair, State Records Committee
1 There is some ambiguity in the record on the exact date of the Wasatch County meeting. Petitioner’s GRAMA request dates the meeting as August 8, 2022, whereas Respondent’s chief administrative officer responded on appeal dating the meeting as August 24, 2022. Because Petitioner concedes that the information received from his appeal satisfied his request, we assume the discrepancy in dates is immaterial.
",Denied,2022-11-29T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JUDITH ZIMMERMAN, Petitioner, v.
UTAH DEPARTMENT OF HEALTH AND HUMAN SERVICES (DHHS), Respondent.
DECISION AND ORDER
Case No. 23-10
By this appeal, Judith Zimmerman (“Petitioner”), requests records allegedly held by Utah Department of Health and Human Services (DHHS) (“Respondent”).
FACTS
On February 14, 2022, and April 13, 2022, Petitioner lodged two complaints with the Respondent alleging that three particular individuals’ actions led to privacy violations and constituted other serious misconduct. The Respondent did not acknowledge receipt of the complaints nor any guidance on how to provide further input. Having not heard anything of her complaints and wanting to know what became of them, on November 7, 2022, Petitioner filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, her request sought any records surrounding the complaints, including any subsequent investigation, findings, and disciplinary action.
On November 22, 2022, the Respondent’s GRAMA coordinator, Dianna Sanchez, responded and denied Petitioner’s request. Ms. Sanchez explained the “records you have requested are records of security measures designed for the protection of persons or property, public or private, and are not subject to GRAMA.” Ms. Sanchez further elaborated that even if the records were subject to GRAMA, “they would be private records concerning a current or former employee.”
On December 2, 2022, Petitioner appealed Ms. Sanchez’s determination to the Respondent’s chief administrative officer (“CAO”). In her appeal, Petitioner attached her original two complaints that were the basis for her GRAMA request and challenged whether the requested records were correctly classified as records of security measures or otherwise private.
The Respondent’s designated CAO responded on December 16, 2022, explaining that because Petitioner’s complaints concern the unlawful release of personally identifiable information, the records surrounding any investigations are security measures designed to protect individuals from having their personally identifiable information unlawfully disseminated. Further, the CAO stated that even if the records were not security measures, they are still protected under the various employment related protections the GRAMA offers.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On March 16, 2022, 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.
STATEMENT OF REASONS FOR DECISION
At the hearing, the Committee heard arguments from the parties and voted to view the disputed records in camera. Shortly after closing the public portion of the hearing for its in camera review, the Committee reconvened the hearing. Due to the important issues that must be considered and the volume of records to review, the Committee moved to continue the hearing to next month to give it time to complete its review of the records.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby continued to next month’s regularly scheduled meeting.
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).
Entered this 27 day of March 2023.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NATE CARLISLE, Petitioner, v.
UTAH DEPARTMENT OF TRANSPORTATION, Respondent.
DECISION AND ORDER
Case No. 22-23
By this appeal, Petitioner, Nate Carlisle, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, Utah Department of Transportation (“UDOT”).
FACTS
On January 20, 2022, Mr. Carlisle made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from UDOT. Mr. Carlisle requested “a copy of the report(s) Deer Valley Resort filed concerning the mechanical failure on the Carpenter Express chairlift on or about December 24, 2021.” During the incident, 167 skiers had to be rescued, mostly with hoists lowering passengers out of their chairs. On January 27, 2022, UDOT’s Public Records Request Coordinator denied the request because UDOT classified the record as an “accident report” which is a protected record pursuant to Utah Code § 63G-2-305(38).
In a letter dated January 28, 2022, Mr. Carlisle filed an appeal with Carlos Braceras, Executive Director for UDOT. Mr. Carlisle argued that any records regarding the incident involving the chair lifts at Deer Valley Resort should not be considered “accident reports” pursuant to Utah Code § 63G-2-305(38). Mr. Carlisle further argued that even if the records had been properly classified as protected, the records should be released based upon the public’s right to know outweighing the need to protect the information.
Mr. Braceras denied Mr. Carlisle’s appeal in a letter dated February 14, 2022. Mr. Braceras stated that “an Incident Report is an accident report, and UDOT properly classified Incident Reports as protected records under § 63G-2-305(38).” Mr. Braceras further stated that the “public’s interest in knowing the minute technical details of an accident included in an Incident Report does not outweigh the importance of protecting that accident information from disclosure.”
Mr. Carlisle filed an appeal with the State Records Committee (“Committee”). On June 2, 2022, 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 including reviewing the responsive record in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies that a “record is 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. UDOT relies upon Utah Code § 63G-2-305(38) which states that “accident reports, except as provided in Sections 41-6a-404, 41-12a-202, and 73-18-13” are protected records if properly classified by a governmental entity. Additionally, the administrative rules for the Utah Passenger Ropeway Safety Committee (“Ropeway Committee”), created within UDOT pursuant to Utah Code § 72-11-202(1), state that a written report of every passenger ropeway incident shall be delivered to the Ropeway Committee within five days of the incident, and that these reports are protected records pursuant to Utah Code § 63G-2-305. See, Utah Admin. Code R. 920-50-14(1)(a) & (b).
3. The question before the Committee is whether “incident reports” as required under Utah Admin. Code R. 920-50-14(1)(a) constitute “accident reports” pursuant to Utah Code § 63G-2-305(38). A review of the Utah Code shows that the phrase “accident report” is only used in Title 41 “Motor Vehicles”, Title 53, Chapter 3 the “Uniform Driver License Act”, Title 54 “Public Utilities” for accidents occurring upon the property of a public utility, as well as in GRAMA in Utah Code §§ 63G-2-103(14)(c) (“Initial contact reports do not include accident reports, as that term is described in Title 41, Chapter 6a, Part 4, Accident Responsibilities”) and as stated previously -305(38).
4. A review of the legislative history of Utah Code § 63G-2-305(38) shows that it was originally passed in 2000 as § 63-2-304(38) in H.B. 243 “Protection of Accident Report” as “an act relating to motor vehicles; providing for the protection and confidentiality of accident reports…”
5. Based upon the plain language of Utah Code § 63G-2-305(38), the other references to “accident report” in the Utah Code, and the legislative history regarding the origins of Utah Code § 63G-2-305(38), the Committee finds that the legislative intent of -305(38) was to have “accident reports” apply only to reports of traffic and boating accidents. Therefore, the type of incident for which the present records request was made, is not an “accident report” pursuant to -305(38).
6. Additionally, the Committee reviewed the applicable records in camera. The Committee finds that even if the records were properly classified as protected records pursuant to Utah Code § 63G-2-305(38), the records should be released pursuant to the weighing provision found in Utah Code § 63G-2-403(11)(b) (The Committee may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order disclosure of information properly classified as protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access). See also, McKitrick v. Gibson, 2021 UT 48, 496 P.3d 147, fn. 11.
7. Accordingly, the Committee finds that UDOT improperly classified the responsive records as protected records pursuant to Utah Code § 63G-2-305(38). Further, even if the records had been properly classified as non-public records, the public interest favoring access is greater than the government’s interest restricting access. Therefore, the Committee finds that the requested records should be provided to Petitioner.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nate Carlisle, is hereby GRANTED.
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).
Entered this 13 day of June 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
THE OFFICE OF THE UTAH ATTORNEY GENERAL, Respondent.
DECISION AND ORDER
Case No. 22-57
By this appeal, Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by the Office of the Utah Attorney General (“Respondent”).
FACTS
On April 15, 2022, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking any and all records pertaining to legal representation of the Respondent, any elected official of the Respondent, or any employee, agent, or appointee employed by the Respondent since December 24, 2013. Petitioner requested a fee waiver for the request, stating that the request was for the public benefit.
On April 29, 2022, the Respondent informed Petitioner that due to the breadth of the request, providing such records would require a fee and therefore denied the request for a fee waiver. Petitioner appealed the fee waiver denial to the Respondent’s chief administrative officer (“CAO”).
The CAO responded on May 31, 2022, stating that Petitioner’s assertions that the records were of public interest were unpersuasive and that the records request is likely intended to benefit Petitioner’s own ongoing litigation against the Respondent and would necessarily impose significant burdens on it. As a result, the CAO deemed that Respondent was within its rights to deny a fee waiver.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 15, 2022, 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.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, under certain conditions, a governmental entity may charge a reasonable fee to cover the entity’s actual cost of providing a record. Utah Code § 63G-2-203(1)(a). Notably, the statutory allowance to charge a fee does not mean the entity must do so. An entity may provide requested records without charge and the GRAMA encourages it to do so if: (a) releasing the records primarily benefits the public rather than a person; (b) the requester is the subject of the record; or (c) the requester’s legal rights are directly implicated by information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a)-(c).
In this case, Petitioner requested all records pertaining to legal representation of the Respondent, any elected official of the Respondent, or any employee, agent, or appointee employed by the Respondent since December 24, 2013. The Respondent examined the request and through a preliminary search for responsive records determined that the request was unduly burdensome because of its overly broad nature, and the necessity of reviewing each record to determine if any information needed to be redacted for attorney-client privilege or other protective classifications under the GRAMA. The Respondent’s records counsel, Lonny Pehrson, presented to the Committee that the requested records were not contained in a single procurement file in the office, but would be held in various divisions of the Respondent’s office. That is, since December 24, 2013, outside legal representation may have been engaged for the Respondent’s many separate and distinct divisions and units. Thus, searching to gather all responsive records would be a task in and of itself, but then reviewing each record for possible redactions adds to the effort. For this, the Respondent charged a fee.
Petitioner argued that releasing the records would benefit the public. But although Petitioner has provided no evidence as to how his custody of the records would benefit the public at large, such an argument has already been addressed and foreclosed by the Utah Supreme Court. In Salt Lake City Corp. v. Jordan River Restoration Network, the Court found that weighing the public interest against the governmental entity’s is an incorrect analysis in deciding whether requests for fee waivers must be granted. See Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62. The Court noted that while the GRAMA’s fee waiver provision does encourage a fee waiver when releasing a record primarily benefits the public, that factor is “not necessarily determinative.” Id. ¶52. Notably, Jordan River’s request was found to benefit the public, but the district court found it reasonable for Salt Lake City to still charge a fee, and the high Court upheld that holding: “Despite finding that [Jordan River Restoration Network’s] purpose was to primarily benefit the public, the [district court] concluded that the City’s decision to deny the requested fee waiver … was reasonable given the voluminous nature of the request and the effort necessary to compile the requested documents.” Id. ¶83. Essentially, the Court made clear that the benefit to the public is not where the analysis turns on fee waiver decisions, and that the only analysis relevant is whether the decision to deny the fee waiver request is reasonable under the circumstances. Id. In determining the reasonableness of that decision, the district court found the following factors made charging a fee reasonable: Jordan River’s records request required substantial efforts to compile documents; the request’s breadth required extracting many documents from disparate larger sources; the effort required many hours and interrogating many employees as to the files they possessed; the breadth of the request was “unreasonably large”; full compliance with the request would have required many more hours of employee time compiling and copying; and that the request appeared calculated to require production of every conceivable document. Id. ¶82. We find this case is analogous to the one under our review.
In our case, the request is unreasonably broad, seeking records stemming back eight years and relating to not just the Respondent’s engagement of outside counsel as an office, but also elected officials from the office, and any employee, agent, and appointee from the Respondent’s office. Given the size of the Respondent’s office and the number of personnel it employs (and has employed in the last eight years), we find that the request is similar to Jordan River and would require the Respondent to take substantial efforts to compile the documents, extract many documents from disparate sources and units within the Respondent’s office, require many hours combing through files and inquiring of employees as to the files they possessed, as well as the time needed to scrutinize each record for possible redactions. Because of Jordan River’s holding and analogous facts, we find (1) the public interest in the requested records is irrelevant to denying the request for a fee waiver, and (2) the decision to charge a fee for the records was reasonable under the circumstances.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 27th day of December 2022
BY THE STATE RECORDS COMMITTEE
_________________________________________
NANCY DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CINDY O’NEIL, Petitioner, vs
EAST CARBON CITY, Respondent,
DECISION AND ORDER
Case No. 23-18
By this appeal, Cindy O’Neil (“Petitioner”), requests records allegedly held by East Carbon City (“Respondent”).
FACTS
On September 18, 2022, Petitioner submitted a request to the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested numerous items which were initially denied due to the Respondent not responding to her GRAMA request. However, during the pendency of her appeals to the Respondent’s chief administrative officer and then to the State Records Committee (“Committee”), the Respondent did produce and disclose some but not all of the records she requested. At issue before the Committee are the following still outstanding records:
(1) a copy of all applications for service that have been submitted to the city for the connection at 178 West Geneva (“Property”) pertaining to certain named tenants;
(2) all copies of applications for service on the Property that are maintained by the Respondent;
(3) all minutes of the Board of Equalization meetings where the Board heard and decided issues regarding the city’s water, sewer, and garbage bills that may or may not have been deemed illegal, unequal, or unjust;
(4) all records concerning rebates, refunds, or charges that were forgiven or dropped by the city for the last 3 years pursuant to city code;
(5) a copy of any documentation showing that Petitioner and Richard Lynn gave written indication that she and/or Richard Lynn would agree to pay tenants’ water bills for the Property; and
(6) if there is a city ordinances or rule that allows the Respondent to place a lien on the owner’s property when a tenant fails to pay a city service bill, then a copy of the Utah Code provision(s) that the Respondent used to pattern their ordinance after;
On April 20, 2023, 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
We must determine which, if any, of the six outstanding records must be disclosed.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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). The law declares a record public unless expressly provided by statute. Utah Code § 63G-2-201(2). That is, a record that is classified as private, controlled, or protected, or otherwise restricted under a different statute or court rule is not deemed to be a public record or is otherwise governed by the other statute or court rule. Utah Code § 63G-2-201(3)(a)-(b). Generally, if a record is classified as private, controlled, or restricted, the governmental entity may not disclose the record. Utah Code § 63G-2-201(5)(a). Additionally, when responding to a record request, a governmental entity is not required to create a record, provide the record in a format it normally doesn’t retain the record in, fulfill duplicative record requests from an individual, or fill a person’s request if the record is publicly accessible online or included in a public publication or product produced by the governmental entity. Utah Code § 63G-2-201(8).
Upon reviewing the evidence submitted to the Committee and hearing the parties’ arguments, we find this review to be relatively straightforward. We have found the following:
A. Regarding the records sought in item 1 (a copy of all applications for service that have been submitted to the city for the connection at 178 West Geneva (“Property”) that included certain named tenants), we find that the Respondent has delivered some responsive records but not all. As these records are not restricted under the GRAMA, all requested records must be disclosed.
B. Regarding the records sought in item 2 (all copies of applications for service on the Property that are maintained by the Respondent), the evidence shows that this request has been withdrawn by Petitioner and is therefore moot.
C. Regarding the records sought in item 3 (all minutes of the Board of Equalization meetings the Board heard and decided issues regarding the city’s water, sewer, and garbage bills that may or may not have been deemed illegal, unequal, or unjust), the evidence shows that the minutes are available on the Respondent’s website and the Public Notice Website; therefore the Respondent has no obligation to disclose them under Section 63G-2-201(8)(e)(i)(A)
D. Regarding the records sought in item 4 (all records concerning rebates, refunds, or charges that were forgiven or dropped by the city for the last 3 years pursuant to city code), the evidence shows that the city does not regularly maintain such records and since Section 63G-2-201(8)(a) does not require the Respondent to create a record it doesn’t have, it is under no obligation to fill this request. Additionally, we find that any names or addresses attached to such records are classified as protected under Section 63G-2-305(51)
E. Regarding the records sought in item 5 (a copy of any documentation showing that Petitioner and Richard Lynn gave written indication that she and/or Richard Lynn would agree to pay tenants water bill for the Property), the Respondent indicated that it has no such records; however, given the nature of the situation, the Respondent must perform another thorough search to be sure.
F. Regarding the records sought in item 6 (if there is a city ordinances or rule that allows the Respondent to place a lien on the owner’s property when a tenant fails to pay a city service bill, then a copy of the Utah Code provision(s) that the Respondent used to pattern their ordinance after, all laws – the Utah Code and city ordinances – are publicly available. Accordingly, the Respondent is under no obligation to respond to this request under Section 63G-2-201(8)(e)(i)(A).
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED in part and DENIED in part in accordance with the following:
As the record requests are referenced in this Order,
1. The Respondent shall disclose all records still outstanding from those requested in item 1, relying on Petitioner’s initial GRAMA request for the names of the tenants connected to those records as she indicated them;
2. The request for the records listed in item 2 is now moot;
3. The Respondent has no obligation to disclose the records requested in item 3;
4. The Respondent has no obligation to disclose the records requested in item 4;
5. The Respondent shall perform another search for the records requested in item 5; and
6. The Respondent has no obligation to disclose the records requested in item 6.
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).
Entered this 1st day of May 2023
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH DEPARTMENT OF FINANCIAL INSTITUTION, Respondent.
DECISION AND ORDER
Case No. 23-42
By this appeal Brady Eames, (“Petitioner”), requests records allegedly held by, Department of Financial Institution (“DFI”) (“Respondent”).
FACTS
On March 15, 2023, Petitioner filed an expedited records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). The Petitioner requested “Public Funds Monthly Reports” submitted to the Respondent by Zions Bank, Wells Fargo Bank, and Cache Valley Bank with respect to the public funds deposited by the following:
Paul Allred, Deputy Commissioner of Financial Institutions, denied the expedited request on March 22, 2023, saying that “Public Funds Monthly Reports in the Utah Department of Financial Institution’s possession contain confidential supervisory information. Therefore, the reports are confidential under Utah Code Ann. §7-1-802 and are not available for public inspection.” Mr. Eames filed an appeal to the Chief Administrative Officer (CAO), Darryle Rude, who upheld the denial for the same reasons.
Mr. Eames filed an appeal with the State Records Committee (“Committee”). On August 28, 2028, 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
We must determine whether the Public Funds Monthly Reports are public records that must be disclosed under the GRAMA.
STATEMENT OF REASONS FOR DECISION
Under the GRAMA, “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, the following records are not public: “a record to which access is restricted pursuant to . . . another statute. . . .” Utah Code § 63G-2-201(3)(b). In the event access to a particular record is governed or limited by another statute, disclosure “is governed by the specific provisions of that statute. . . .” Utah Code § 63G-2-107(1)(a).
The Respondent was created under Utah Code § 7-1-201 and is governed primarily by Title 7 of the Utah Code. When it comes to the Respondent’s records, Section 7-1-802 provides:
(2) as provided in this section, the following are confidential, not public records, and not open to public inspection:
(a) all reports received or prepared by the department;
(b) all information obtained from an institution or person under the jurisdiction of the department; and
(c) all orders and related records of the department.
Utah Code § 7-1-802(2)(a)-(c) (emphasis added).
Thus, according to the statute, reports prepared by financial institutions and delivered to the Respondent are confidential under the statute. Due to their confidential nature, the reports are not available to the public under the GRAMA and are available only to the Respondent and the Utah Treasurer’s Office under the Utah Money Management Act.
Although Title 7 governs these records, the Courts have held that the GRAMA may still apply when another statute controls the records. See Southern Wilderness Alliance v. Automated Geographic Reference Center, 2008 UT 88, ¶17 (“while the other statute’s provisions will control in the event of an irreconcilable conflict, GRAMA’s provisions will still apply so long as they are not inconsistent with the other statute.”); see also Bryner v. Canyons School Dist.2015 UT App 131, ¶29 (holding that GRAMA permitted redactions of record governed by Family Educational Rights and Privacy Act because there was no irreconcilable conflict between the statutes). Thus, to determine whether Title 7 is an absolute bar to the records’ disclosure under the GRAMA, we must look to see whether the Financial Institutions Act conflicts with the GRAMA. Where it does conflict, the Financial Institutions Act will control.
In comparing the statutes, we find that the GRAMA’s Subsection 107(1)(a) clearly requires us to defer to the statute that governs these records; in this case, Section 7-1-802. In examining that Section, we find the legislature chose to classify the records at issue here is “confidential.” This is an irregular deviation from the GRAMA’s standard classifications of “public,” “private,” “controlled,” and “protected.” Where the GRAMA has certain provisions that allow for private, controlled, and protected records to be disclosed, it makes no such allowance for confidential records. See Utah Code §§ 63G-2-202(1)(a); -202(2)(a); -202(4); -403(11)(b). The accepted definition for “confidential” is “meant to be kept secret; imparted in in confidence.” BLACK’S LAW DICTIONARY (11th ed. 2019). Due to the legislature’s deliberate use of the word “confidential” in Subsection 7-1-802(2)—a significant distinction from the GRAMA’s record classifications—we find that Subsection 7-1-802’s classification does conflict with the GRAMA in irreconcilable fashion. Consequently, the Financial Institutions Act controls these records, and we cannot order any action regarding them. They must remain confidential from the public.
Our conclusion is bolstered by the fact that the reports at issue are subject to the Utah Money Management Act when they are delivered to the State Money Management Council, which works in conjunction with the State Treasurer. Under that Act, Subsection 51-7-18.1(4)(b) states “If the secretary of the council or any member of the council discloses confidential information obtained from the commissioner under this Subsection, he is guilty of a class A misdemeanor.” Utah Code § 51-7-18.1(4)(b). Given the criminal penalty for disclosing the reports, we see no leeway under the statute to provide disclosure in whole or in part.
ORDER
THEREFORE, IT IS ORDERED THAT Petitioner’s appeal is hereby DENIED.
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).
Entered this 6 day of September 2023.
BY THE STATE RECORDS COMMITTEE
______________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
SANPETE COUNTY, Respondent.
DECISION AND ORDER
Case No. 22-35
This case comes before the Committee on remand from the Sixth Judicial District Court for the State of Utah.
FACTS
Patrick Sullivan initially made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. In response to the records request, Respondent initially stated, “Mr. Sullivan met his records request limit as found by this committee in Order 22-01 and thus, Sanpete County was not required to respond to or provide a record in response to his April 1, 2021, request, per Utah Code § 63G-2-201(10)(a)-(b)(i).”
Mr. Sullivan filed an appeal to the Sixth Judicial District Court in Sanpete County, bypassing the State Records Committee process (“Committee”). Judge Bagley, for the District Court, remanded this case to the Committee.
On July 21, 2022, this appeal came before the Committee. The Committee reviewed the appeal to determine if it had jurisdiction. At the hearing the Committee determined that jurisdiction existed and then set the appeal for August 18, 2022.
On August 18, 2022, 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.
STATEMENT OF REASONS FOR DECISION
1. The request filed by Mr. Sullivan contained six subparts/requests.
2. On January 31, 2022, the Committee heard a different appeal that was filed by Mr. Sullivan. . In that appeal the Committee determined that Mr. Sullivan had already reached his limit for GRAMA requests to Sanpete County for the year 2021.
3. The GRAMA request before the Committee in this matter was originally filed on April 1, 2021, and Mr. Sullivan explained this was the first request he filed in 2021. While it may be accurate that this was the first request Mr. Sullivan filed in 2021, this request was filed with the district court – not with Sanpete County. As such, this request was not received by Sanpete County until after Sanpete County had fulfilled Mr. Sullivan’s other GRAMA requests. Therefore, this request was not counted among those that caused Mr. Sullivan to reach his limit.
4. The Committee hereby determines that Mr. Sullivan already reached his limit for GRAMA requests to Sanpete County for the 2021 calendar year, and therefore Sanpete County is not required to fulfill the request in this matter.
5. As the Committee has already determined that Mr. Sullivan has reached his limit for calendar year 2021, as explained above, the Committee does not need to determine the other arguments made by the parties as to the validity of the actual requests.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is DENIED.
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).
Entered this 29 day of August 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
SANPETE COUNTY, Respondent.
DECISION AND ORDER
Case No. 22-44
By this appeal, Patrick Sullivan (“Petitioner”) is requesting records allegedly held by Sanpete County (“Respondent”).
FACTS
On February 22, 2022, Petitioner requested records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Specifically, he requested all emails from a list of individuals that mentioned him, along with any attachments to those emails, that were sent from January 1, 2019, to the date of his request. Petitioner also requested a “certified copy of summons” for a specific district court case along with a signature showing the date Respondent received the document and a copy of the envelope. Petitioner’s requests and appeal went unanswered, and because GRAMA treats a government entity’s failure to respond to a request for records the same as a formal denial (Utah Code §§ 63G-2-204(9); 63G-2-401(5)(b)(i)), he now brings this appeal to the State Records Committee (“Committee”).
The Committee held a hearing on October 13, 2022. However, Respondent failed to attend the hearing. From Petitioner’s own request for a continuance, the Committee affirms that request.
ORDER
THEREFORE, IT IS HEREBY ORDERED THAT:
1. The appeal of Petitioner, Patrick Sullivan, is hereby CONTINUED to November 17th, 2022.
2. No later than five business days before the November 17th hearing, Respondent shall deliver to the Committee a Statement of Facts as required by Utah Code § 63G-2-403(5).
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).
Entered this 24 day of October 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LYNN DAVID, Petitioner, v.
WASATCH COUNTY, Respondent.
DECISION AND ORDER
Case No. 22-51
By this appeal, Lynn David (“Petitioner”), requests records allegedly held by Wasatch County, Utah (“Respondent”).
FACTS
On July 20, 2022, Petitioner submitted a request for records to Respondent pursuant to the Governmental Records Access and Management Act (“GRAMA”). In essence, the request was for records pertaining to names and addresses of all individuals who applied for primary residence exemptions for their property taxes in Wasatch County and were asked to provide evidence that they were county residents from the time period of January 1, 2016, through June 1, 2022. The request also sought records disclosing individuals approved or denied their primary residence exemption, and the individuals who were asked more than once to provide residency evidence. Respondent denied Petitioner’s request because it held no public records responsive to the request.
Respondent explained in its denial that certain records concerning a taxpayer’s eligibility for an exemption are private under Utah Code § 63G-2-302(1)(aa), and, second, that it was not required under the GRAMA to create a record or compile information in order to respond to a records request when no such records existed. However, to assist Petitioner, Respondent gave him an explanation of the process the county takes to process and evaluate residency exemption applications.
To this response, Petitioner filed an appeal with Respondent’s chief administrative officer narrowing his request. His appeal requested records providing the procedures that were used from January 1, 2016 through June 1, 2022 to determine which individuals are selected to “reprove that they are residents of Wasatch County.” Particularly, Petitioner sought the identity of individuals who were already classified as residents of Wasatch County but whom the county had requested they reverify their residency. For the same reasons as the initial denial, Respondent’s chief administrative officer denied his request.
Petitioner appealed to the State Records Committee (“Committee”). The Committee held a hearing on November 17, 2022. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After carefully considering all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, in response to a request for records, a governmental entity is not required to create a record, compile or format information, provide a record in a particular format the entity doesn’t normally maintain, or fulfill the request if the records are publicly accessible online and the entity informs the requester where the records can be accessed online. Utah Code § 63G-2-201(8)(a)-(c) & (e)(i)-(ii). In addition, if a governmental entity determines that responsive records don’t exist, then the requester bears the burden on appeal to provide sufficient evidence that they do. See Utah Administrative Code R35-2-2(2).
In this appeal, Petitioner is seeking records showing which county residents were asked to verify and prove their residency multiple times in a six-year span. Respondent maintains that no such records exist because residency exemptions are not determined in that manner. Therefore, in order to provide a responsive record, Respondent testified that it would have to search through all primary residency exemptions it received in the six-year period, find those that necessitated contact with the applicant, compile that data, and then create a report it could respond with under the GRAMA’s protections over property tax exemption information. See Utah Code § 63G-2-302(1)(aa). Respondent testified that compiling and creating this record would be laborious as Wasatch County granted 2,608 primary residence exemptions in 2022 alone. It is this type of endeavor the GRAMA shields a governmental entity from having to undertake.
Not only is § 63G-2-201(8) clear in not requiring a governmental entity to compile data and create a responsive record, but the Utah courts have also spoken on this. In Maese v. Tooele County, 273 P.3d 388, 2012 UT App 49, the Court addressed a case with similar facts. Maese filed a records request with Tooele County requesting a copy of a “compiled [property] transaction report, for the past 20 years, in electronic format.” Id. at ¶ 2. Tooele County denied the request, explaining that “in order to extract the property records information from [its] database, the County would have to either create a record or compile, format, manipulate, package, summarize, or tailor information . . . .” Id. (Internal quotation marks omitted.) However, the County offered some help by informing Maese that the property records were available for personal inspection and copying. Id. In reviewing the appeal, the Court concluded that Tooele County did not have to provide Maese with a copy of the twenty-year property transaction report because doing so would require it to create a record and compile information in a format that it did not currently maintain. Id. at ¶ 19. (Quotation marks omitted.)
Similarly in this case, Petitioner’s request is for data that is not normally maintained. While that defense by itself is not necessarily fatal to a GRAMA request, it does shift the burden to the requester to provide evidence that his sought-after records do exist in a normally maintained compilation that could be inspected. See Utah Administrative Code R35-2-2(2); and see generally Maese v. Tooele County, 2012 UT App 49 (Maese failed to provide viable evidence to the court to compel disclosure). However, Petitioner has not offered any such evidence here. Although he testified that his own personal experience to obtain his primary residence exemption defied the procedure Respondent explained to him in its denial letter, we do not view this personal experience as sufficient evidence that Respondent maintains the records he seeks as a normal course of business. Accordingly, we find that from Petitioner’s lack of evidence, we cannot compel the disclosure of records that don’t exist, and Respondent is not required under the GRAMA to create a record responsive to his request.
ORDER
THEREFORE, for the foregoing reasons, we hereby order Petitioner’s appeal is DENIED.
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).
Entered this 29 day of November 2022
BY THE STATE RECORDS COMMITTEE
________________________________________
NANCY R. DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JEFFREY WETSEL, Petitioner, v.
PRICE CITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 22-60
By this appeal, Jeffrey Wetsel (“Petitioner”), requests a fee waiver and records allegedly held by Price City Police Department (“Respondent”).
FACTS
This appeal concerns a records request surrounding a police call regarding a child custody dispute. The relevant facts of the dispute are briefly recited to help understand the nature of the records request and the appropriate considerations under the GRAMA for their restriction or disclosure.
Petitioner and Chelsea Wiggains have a daughter. On or around December 21, 2021, the two disputed the length of time he was allowed to have his daughter in his custody. Ms. Wiggains called the Price City Police Department which promptly responded to the call. Responding officers determined that no criminal activity had transpired and that if Ms. Wiggains believed Petitioner was acting improperly, it was a civil matter requiring an attorney. The records connected to this police call are the basis for the appeal.
On December 24, 2022, Petitioner submitted a Government Records Access and Management Act (“GRAMA”) records request to Respondent for certain records pertaining to a police call made by Chelsea Wiggains on December 19, 2021. Petitioner specifically requested:
1. “[A]ll logs, reports, notes, emails, messages, audio of the call into dispatch . . . as well as any other calls that were in regards [sic] to CFS# 21034195”;
2. A copy of all inbound and outbound communication on the cell phone (official government phone or personal) that Officer Matt Montoya used to conduct official business with Ms. Wiggains;
3. Officer Montoya’s schedule for December 19, 2021; and
4. Any log that would show how Officer Montoya was assigned to the police call.
On January 10, 2022, Respondent responded to Petitioner’s request stating that Officer Montoya was initially dispatched to the call, but it was discovered that he had a conflict of interest with the involved parties. As a result, Officer Luke Kale was then assigned to handle the call. Respondent also informed Petitioner that after the call was handled, Officer Kale and Sgt. TJ Robertson presented the complaint to Respondent’s administration and the Carbon County Attorney. Upon review, it was determined that the incident was a civil matter, not a criminal one. Accordingly, no charges were filed, and Ms. Wiggains was told to contact an attorney if she wanted to pursue a civil action. Respondent informed Petitioner that because no crime occurred, there were no police reports on file for the complaint. It appears that “activity log reports” were also supplied to Petitioner, along with Respondent’s officers’ schedule and an interdepartmental email from Sgt. Robertson updating officers on the situation between Petitioner and Ms. Wiggains.
Petitioner then submitted a new GRAMA request to Respondent requesting the following:
1. All call records for the officers who responded to and handled the complaint, including any inbound or outbound calls to three specific phone numbers Petitioner listed.
2. All body camera footage from responding officers.
3. All footage from Respondent’s security cameras that might have recorded the meeting between Ms. Wiggains, Frankie Hathaway (Ms. Wiggains’s mother), and Sgt. Robertson that occurred on December 20, 2021.
4. All video and audio recordings or written notes of the “Brief with Captain and Chief,” “Brief with Crew,” “Chelsea Wiggains custody issues” listed on Officer Timothy Robertson’s activity log report.
On February 7, 2022, Respondent denied his request in full. Respondent claimed that (1) it does not save or catalog the requested call records; (2) body camera footage is protected under the GRAMA; (3) the police department’s security footage expires after a temporary period and the footage requested no longer exists; and (4) No records exist concerning the briefs with “Captain and Chief,” nor the “Crew.”
Petitioner timely filed an appeal with the chief administrative officer (“CAO”), Mayor Michael Kourianos; however, Mayor Kourianos failed to respond. A CAO’s failure to decide an appeal constitutes a denial of petitioner’s appeal under Utah Code § 63G-2-401(5)(b)(i). Thus, Petitioner’s appeal to Mayor Kourianos was denied for purposes of the GRAMA.
Petitioner has now appealed to the State Records Committee (“Committee”) on two primary grounds: The denial of the phone records and the body camera footage. On December 15, 2022, the Committee held a hearing during which the parties were allowed to participate. For the reasons set for the below, the Committee issues this Decision and Order.
STATEMENT OF REASONS FOR DECISION
The hearing of this appeal was held on December 15, 2022. The Committee’s Executive Secretary, Rebekkah Shaw, gave the parties adequate notice of the hearing. However, neither party attended the scheduled hearing. Accordingly, we find that the parties have abandoned their appeal and it should be dismissed.
ORDER
THEREFORE, because of the foregoing reasons, Petitioner’s appeal is hereby DISMISSED and the decision of the CAO is left in force.
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).
Entered this 27th day of November 2022
BY THE STATE RECORDS COMMITTEE
_________________________________________
NANCY DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JUDITH ZIMMERMAN, Petitioner, v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.
DECISION AND ORDER
Case No. 22-61
By this appeal, Judith Zimmerman (“Petitioner”), requests records allegedly held by the Department of Health and Human Services (“Respondent”).
FACTS
To best understand the facts behind this records request, we take a moment to explain the data-sharing agreement that is at the heart of this review. Under Utah law, the Respondent has statutory authorization to enter into data-sharing agreements with third parties. Utah Code Title 26, Chapter 33a et. seq. Under these agreements, the Respondent may provide batches of aggregated personal data to third parties for certain purposes. For instance, if the University of Utah (“University”) was performing a study on hypertension, the University could enter into an agreement with the Respondent to receive a batch of usable data for its study. Although there may be some rare exceptions, the data provided typically does not contain any personal identifiable information. That is, the data provided to third parties in these agreements does not usually contain names and other identifiers associated with the information. Understanding these data-sharing agreements is helpful as a backdrop for this review, but we stress that these agreements are permissible under Utah law. With that background, we turn to the request.
On August 20, 2022, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking a list of third-party entities and individuals to whom Respondent shared Petitioner’s personal information with during a specified date range. Additionally, Petitioner sought records showing who received her information and if it was reshared; what specific data elements were shared (e.g., name, address, birthdate, diagnostic codes, treatment codes, etc.); and by what authority Respondent shared her information.
On August 23, 2022, the Respondent denied the request, stating that it did not identify the records with reasonable specificity as required by Utah Code section 63G-2-204(1)(a)(ii). The Respondent advised Petitioner to include a “name or position” to search for email records, and also told her that “[i]t would . . . be helpful if you could narrow your request by department.” Respondent’s GRAMA Response, August 23, 2022. Petitioner replied to the Respondent offering to clarify her request rather than appeal, but that invitation went unanswered.
Petitioner appealed to Respondent’s chief administrative officer (“CAO”) on August 23, 2022. Her appeal provided more detail and clarity about the records she sought. The CAO responded on September 9, 2022, in the form of an official Decision and Order in which she formally denied Petitioner’s appeal. The stated reason for the denial was that:
Your appeal does not dispute that your original request lacked reasonable specificity and does not explain why you feel the August 23, 2022 decision was made in error. Rather, your appeal describes the records sought with greater specificity. The appeal looks more like a new request for records.
For the foregoing reasons, I find that your August 20, 2022 request lacked reasonable specificity, and that your request for records in the appeal should be treated as a new request for records.”
Respondent’s Notice of Decision, GRAMA Appeal, 1-2.
The Order then stated that the appeal would be treated as a new request and forwarded to Respondent’s GRAMA coordinator for review.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 15, 2022, 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.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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). While the GRAMA requires that an individual identify the records she seeks with “reasonable specificity,” it does not set a clear standard for the governmental entity on how to conduct its search. Utah Code § 63G-2-201(7)(b). When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance. See e.g., Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations).
Under the FOIA, when a governmental entity receives a records request, its search must be reasonable with the reviewing court looking at the entity’s process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The issue we must review is not whether remaining records may exist, but whether the entity’s search efforts were adequate. Weisberg, at 1351. If the search is challenged by the records requester, the governmental entity then bears the burden of showing that the search was reasonable. See Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir.1990). And “reasonableness” is dependent on the circumstances in the case. Weisberg, at 1351. If it’s determined that the governmental entity performed a reasonably adequate search, our Utah Administrative Rules then require the requester to provide sufficient evidence that additional records exist and are in the entity’s possession. Utah Administrative Rule R35-2(2).
At the hearing, the central issue was the reasonableness of the Respondent’s search. To explain its search process, the Respondent had Diana Sanchez, the Respondent’s records officer, and Kyle Lunt, the Respondent’s Director of the Division of Data, Systems, and Evaluation, testify about the search efforts made to locate responsive records. Mr. Lunt testified that the Respondent doesn’t hold a centralized database where Petitioner’s information can be input for a search and records on the third parties who’ve requested her information under a data-sharing agreement are immediately retrieved; nor does the Respondent maintain a list of third parties who request data under the data sharing agreement Instead, Mr. Lunt testified that the Respondent provided Petitioner the relevant data sharing agreements that might have governed the release of her specific information to requesting third parties. However, to be sure that Petitioner’s data was within the data batch provided under those agreements, Mr. Lunt said the Respondent would have to manually go through each data sharing agreement and then search through the batch of information provided under those respective agreements. It was further testified that the Respondent’s record databases are siloed within its individual and respective divisions. With the Respondent being one of the State’s largest agencies, the siloed databases and lack of centralized searching makes these types of record searches and retrieval even more complex.
Ms. Sanchez testified that when she received Petitioner’s request, she found it unclear what Petitioner was actually requesting. Ms. Sanchez then sent the request to her team to see if they could ascertain the intent behind the request. When the team concluded that the request was unclear, Ms. Sanchez reached out to the Division of Technology Services (“DTS”) to see if they could pull any possibly relevant information from when Petitioner was a state employee. DTS responded that they could only find and retrieve limited information.
From the testimony given and the parties filings, the Committee entered into lengthy deliberations, weighing the Respondent’s search process and efforts. From those deliberations and scrutinous examination of the records search, we find that given the circumstances of this particular case - the Respondent’s databases and systems and the nature of the request - the Respondent’s search efforts were reasonable. Additionally, we find that because the law does not require the Respondent to create a record that it doesn’t normally maintain, the Respondent’s search efforts are sufficient. Utah Code § 63G-2-201(8).
Upon finding that a reasonable search was performed, we normally shift the burden back to the petitioner to prove that additional responsive records are in the respondent’s possession. However, the parties do not dispute the existence of records as much as the nature of the request. Therefore, we do not address this issue.
Before issuing our Order, we take a moment to specifically address three issues that made for our lengthy deliberation and, why we believe, the appeal is arguably unnecessary. First, from Ms. Sanchez’s initial denial letter forward, the Respondent continually claimed that Petitioner’s request was not reasonably specific as required by Section 63G-2-204(1)(a)(ii). When Petitioner received Ms. Sanchez’s letter, she offered to clarify her request rather than appeal if it would help. However, her invitation for clarity was not taken.
We understand that the GRAMA does not require the Respondent to open communication lines with a requester and seek to understand her request. However, we remind the Respondent that the legislature’s express desire and intent behind enacting the GRAMA is to “promote the public’s right of easy and reasonable access to unrestricted records,” and “establish fair and reasonable records management practices.” Utah Code § 63G-2-102(3)(a) & (f) (emphasis added on both). Accordingly, we struggle to understand why the Respondent would not seek to comply with the GRAMA’s express intentions and communicate with Petitioner to ascertain the specifics of her request, especially when Petitioner offered to do so, and the Respondent knows that its records management systems on these types of records is problematic.
Secondly, from the testimony given, we can’t help but point out that the Respondent’s records management practices seem out of alignment with what might be considered “fair and reasonable.” After all, if the Respondent enters into data sharing agreements with third parties, as it may do so under the law, it seems well within the realm of imagination that someone will file a GRAMA request desiring to know exactly what Petitioner does: What records of theirs have been shared, and to whom? We think these are understandable records requests which the Respondent should be prepared to fulfill. And while we sympathize with the Respondent’s size as one of the largest agencies in the State, we don’t see that as a viable reason to not put a system in place to adequately handle these types of requests.
Third, as Petitioner goes back to file new GRAMA request(s) for the records she seeks, we advise the Respondent to construe her new requests as distinct and different from the one under review here. The Respondent knows that it has no legal obligation to respond to a records request that “unreasonably duplicates prior record requests from that person.” Utah Code § 63G-2-201(8)(d). However, the Respondent should bear in mind that Petitioner is not a lawyer, and in dealing with a governmental entity that has problematic record management systems within its prodigious infrastructure, she is disadvantaged in knowing how to precisely phrase her request in a way that will produce a valid search, not to mention that she likely has no idea which division or department within the Respondent’s vast infrastructure is holding the records she seeks. How then can she be expected to direct the Respondent’s records custodians where to look for responsive records when they know the internal databases better than her? The Respondent should make every effort to construe her new request(s) as distinctly different from her original, communicate with Petitioner as needed, and work to fulfill the express intentions of the GRAMA.
After all, she is the subject of the records she seeks.
Overall, the testimonies given showed that despite its records management problems, the Respondent’s search efforts were reasonable under the circumstances; however, the testimonies also showed that the Respondent handled Petitioner’s request not only far and away from the intentions laid out in Section 102(3)(a), but unnecessarily awkward. We strongly encourage the Respondent to put better systems in place to handle these types of records requests in a way that aligns with the intent of the statute, and, given the disorderly systems it has, make better efforts to honor Petitioner’s “right to easy and reasonable access” to the records she is subject of. Utah Code § 63G-2-102(3)(a).
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 27th day of December 2022
BY THE STATE RECORDS COMMITTEE
_________________________________________
NANCY DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JUDITH ZIMMERMAN, Petitioner, vs.
UTAH DEPARTMENT OF HEALTH AND HUMAN SERVICES (DHHS), Respondent,
DECISION AND ORDER
Case No. 23-19
By this appeal, Judith Zimmerman, requests records allegedly held by Utah Department of Health and Human Services (DHHS).
BACKGROUND
This matter was originally heard by the State Records Committee (“Committee”) on March 16, 2023; however, due to the volume of records subject to Petitioner’s request, the Committee continued the meeting to its regularly scheduled April 20th meeting to give the members more time to review the records in camera. Having reviewed the records in full, the Committee is now prepared to issue its decision. Before doing so, however, a brief recounting of the facts behind this appeal is in order.
FACTS
On February 14, 2022, and April 13, 2022, Petitioner lodged two complaints with the Respondent alleging that three particular individuals’ actions led to privacy violations and constituted other serious misconduct. The Respondent did not acknowledge receipt of the complaints nor any guidance on how to provide further input. Having not heard anything of her complaints and wanting to know what became of them, on November 7, 2022, Petitioner filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, her request sought any records surrounding the complaints, including any subsequent investigation, findings, and disciplinary action.
On November 22, 2022, the Respondent’s GRAMA coordinator, Dianna Sanchez, responded and denied Petitioner’s request. Ms. Sanchez explained the “records you have requested are records of security measures designed for the protection of persons or property, public or private, and are not subject to GRAMA.” Ms. Sanchez further elaborated that even if the records were subject to GRAMA, “they would be private records concerning a current or former employee.”
On December 2, 2022, Petitioner appealed Ms. Sanchez’s determination to the Respondent’s chief administrative officer (“CAO”). In her appeal, Petitioner attached her original two complaints that were the basis for her GRAMA request and challenged whether the requested records were correctly classified as records of security measures or otherwise private.
The Respondent’s designated CAO responded on December 16, 2022, explaining that because Petitioner’s complaints concern the unlawful release of personally identifiable information, the records surrounding any investigations are security measures designed to protect individuals from having their personally identifiable information unlawfully disseminated. Further, the CAO stated that even if the records were not security measures, they are still protected under the various employment-related protections GRAMA offers.
Petitioner has now appealed to the Committee, challenging the CAO’s decision. On April 20, 2023, the Committee reconvened the hearing to issue its decision. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
ISSUES FOR REVIEW
The Committee is tasked with determining whether the records are “security measures” as described in the GRAMA. And if the records aren’t security measures, then are they protected under the GRAMA and may they be disclosed?
STATEMENT OF REASONS FOR DECISION
Regarding the Respondent’s argument that the records are “security measures” and fall outside of the GRAMA, we disagree. Utah Code § 63G-2-106(1) states “[t]he records of a governmental entity . . . regarding security measures designed for the protection of persons or property, public or private, are not subject to this chapter.” For clarity, the records described in Subsection 106(1) include: “security plans” pertaining to existential threats such as “terrorist activity” and “emergency and disaster response and recover”; “security codes and combinations”; “passes and keys”; “security procedures”; data pertaining to a “public entity’s risk assessment or security audit”; and “building and public works designs.” Utah Code § 63G-2-106(2)(a)-(f). We find that when read in the full context of the statute these items all have the same logical connection: that if the records were disclosed, it could lead to the possibility of physical harm or death, as well as protection of physical government buildings and property. Thus, for us to determine that the records at issue contain “security measures” under Section 106, we would need to find that the information they contain is aimed at protecting the government’s buildings and property or the physical safety of individuals in the event of an existential threat. Upon our review, we see no such information here. Accordingly, we find that the records do not pertain to security measures as described in the statute. As a result, they are subject to the GRAMA.
The Respondent argues that even if the records are not those that Section 106 contemplates, then their access is still restricted because they are classified as private under Utah Code § 63G-2-302. To this, we agree.
First, Subsection 302(2)(a) classifies records as private when records concerning a governmental entity’s employees are not expressly classified as public records under Subsections 63G-2-301(2)(b), 301(3)(o), or 302(1)(b). Upon our review, the information contained in the records triggers neither Subsections 301(2)(b), 301(3)(o), nor 302(1)(b). Utah Code § 302(2)(a). Therefore, we immediately lean toward the records being private under Subsection 302(2)(a).
To be sure, § 63G-2-302(2)(d) classifies records as private if their disclosure would constitute a clear and unwarranted invasion of privacy. Under our authority to weigh the interests between disclosure and non-disclosure (see Utah Code § 403(11)(b)), we find the interests behind disclosure are not compelling enough to encroach upon the privacy of those who are the subjects of the records. As a result, we find that in addition to being private under Subsection 302(2)(a), the records are also private under Subsection 302(2)(d).
And finally, as § 63G-2-403(11)(b) allows the Committee to weigh the interests behind requiring and restricting the records’ disclosure in light of their contents and private nature, we see no compelling reason to order them disclosed.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 1st day of May 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARLON SMITH, Petitioner, vs
DEPARTMENT OF PUBLIC SAFETY (DPS), Respondent,
DECISION AND ORDER
Case No. 23-16
By this appeal, Petitioner, Marlon Smith, requests records allegedly held by Department of Public Safety (“DPS”).
FACTS
Stemming from a recent conviction, Petitioner is currently confined in a correctional facility. On July 19, 2022, and again on August 18, 2022, he submitted a total of three records requests to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). In sum, the requests were as follows:
July 19, 2022
(1) The incident reports from Officers Morgan, Garrick, Brinkerhoff, and Shelby who are all officers that assisted in the incident on January 1, 2016, involving Petitioner’s arrest and Sally Port car search. Petitioner also requested all other reports relating to the incident by Utah DPS, task force, and others;
(2) Video recording from all officers’ dash and body cameras, as well as photos and surveillance cameras from all devices and surveillance videos inside Sally Port;
(3) Statements and reports from all agencies involved in the January 1, 2016, incident involving Petitioner and/or Marlon Alonzo Smith; and
(4) Requesting officer Thayne G. Carlisle’s incident report.
August 18, 2022 – Request 1
(1) Records (transcript, email, computer message) of Trooper Jared Withers’s outgoing communication request to dispatch on January 1, 2016, requesting a license and warrant check on Petitioner;
(2) Record of dispatch response (transcript, email, computer message) to Trooper Jared Withers on the license and warrant check, as well as the results of both checks effective January 1, 2016; and
(3) Reports created in case 131600001 by Agent Jason Haywood (State Bureau of Investigations) and Deputy Dave Larsen (Sevier County Sheriff).
August 18, 2022 – Request 2
(1) Utah Highway Patrol/DPS Policy and criteria for vehicle inventory search, effective January 1, 2016;
(2) Record of the policy and procedure UHP/DPS follows for vehicle towing when the driver is arrested, effective January 1, 2016; and
(3) Record of the policy and procedure UHP/DPS officers follow for traffic stop violation and issuing citations effective January 1, 2016.
In a response dated August 30, 2022, the Respondent, denied the Petitioners’ requests on the grounds that Utah Code § 63-2-201(10)(a) does not require the Respondent to respond to a GRAMA request from an individual confined to a correctional facility when the individual has already submitted five GRAMA requests in the calendar year.
Mr. Smith appealed the denial to the Respondent’s chief administrative officer on September 25, 2022. After reviewing the initial requests, the CAO determined that the requests duplicated prior government record requests from Petitioner which were responded to on June 29, 2021, December 30, 2021, August 5, 2022, August 29, 2022, and August 30, 2022. Because of this, the CAO stated there was no obligation to respond to the request under Utah Code § 63G-2-201(8)(a). Additionally, the CAO also noted that Petitioner was confined to a correctional facility and had already submitted five GRAMA requests within the calendar year. For these reasons, the appeal was denied.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On April 20, 2023, 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 Respondent must respond to and disclose the responsive records Petitioner requested.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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 governmental entity is not required to respond to a record request if the requester is currently incarcerated in a correctional facility, has already submitted five record requests to the governmental entity during the calendar year, and those requests contain a specific reference to the individual. Utah Code § 63G-2-201(10)(a)-(b)(i).
In this matter, Petitioner is confined in a federal correctional facility. During the course of 2022, Petitioner submitted records requests on the following dates: June 9th, July 19th, July 23rd, August 18th, and September 25th.. The July 19th and August 18th requests are the ones at issue here. Although there were only four total record request submissions leading up to and including the August 18th request, the July 23rd submission contained four distinct requests for the following records:
1. Records created by a responding officer “using Desert Snow electronic networking system entitled ‘Black Asphalt’ on January 1, 2016”;
2. The record of the officer who initiated the “BOLO notice” on Petitioner’s vehicle;
3. Records of “all BOLO’s for 12-31-2015 to 1-01-2016”; and
4. Records of “the Black Asphalt BOLO report of Petitioner’s vehicle.”
The inherent question we must answer to decide the issue is whether the July 23rd request is a single record request under the law or four distinct requests packaged in one delivery. If it is the former, then the evidence shows that Petitioner had not submitted five record requests leading up to his August 18 submission. However, if the July 23rd request is four separate requests, then, since that request was responded to in full prior to the ones at issue, Petitioner will have met a total of five requests within the 2022 calendar year and the Respondent is not obligated to those before us.
As Petitioner is currently confined in a correctional facility, Subsection 63G-2-201(10) clearly applies to him and his GRAMA requests. In applying the statute to this matter, we find its language clear: The Respondent is obligated to respond to only five of Petitioner’s record requests that specifically reference him per calendar year. As the statute is silent on whether those five requests must be answered in order, we hold no position on the propriety of the Respondent answering the July 23rd request prior to the July 19th request at issue here. As far as we are concerned, the Respondent has fulfilled its legal obligation under the law by filling five of the GRAMA requests Petitioner submitted in 2022. Consequently, the law grants the Respondent the discretion on whether to respond to the requests that are the subject of this appeal. Additionally, as Subsection 63G-2-403(11)(b) allows the Committee to weigh the interests favoring the records’ disclosure against those favoring restriction, we’ve seen no compelling evidence or reason convincing us that the interests favoring disclosure outweigh the discretion afforded to the Respondent by statute. Therefore, we leave the Respondent’s decision undisturbed.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 1st day of May 2023
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY JOHNS, Petitioner, vs
UTAH COUNTY SHERIFF’S OFFICE, Respondent,
DECISION AND ORDER
Case No. 23-25
By this appeal, ABC4 reporter, Courtney Johns (“Petitioner”), requests records allegedly held by Utah County (“Respondent”).
FACTS
On March 14, 2023, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking the Utah County Jail’s visitor log for Jonathan Soberanis.
On March 15, 2023, Respondent denied the request, stating the visitor log was classified as a private record because disclosing it would constitute “a clearly unwarranted invasion of personal privacy.” Additionally, Respondent stated that the log contained protected records subject to the attorney-client privilege.
Petitioner appealed to Respondent’s chief administrative officer (“CAO”) arguing that disclosing the log was not an unwarranted invasion of personal privacy under Deseret News Pub. Co. v. Salt Lake Cnty., 2008 UT 26, in which the Court analyzed records disclosure and privacy interests. Petitioner also argued that the attorney-client privilege did not apply to the log because the log doesn’t contain any actual information on communication between the attorney and client other than the fact that the attorney visited. However, Petitioner’s appeal was deemed untimely by the CAO because the CAO claimed it was received past the statutory period of limitations. As a result, the CAO declined to address the substance of Petitioner’s appeal and allowed the decision of the Sheriff’s Office to stand.
Petitioner then appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. During the pendency of the appeal, Respondent agreed to provide the visitor log but with some redactions.
On May 25, 2023, 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
We must determine whether the visitor log for Jonathan Soberanis may be disclosed under the GRAMA.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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 private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5).
In determining whether a record is properly classified as private or protected, this Committee holds the authority to view the record in camera to determine its classification. Utah Code § 63G-2-403(9)(ii). If the records are properly classified to warrant denying the record request, then the Committee may weigh the various interests favoring disclosure against those favoring restriction of access to determine if the record should be released. Utah Code § 63G-2-403(11)(b)-(c).
After hearing the parties’ arguments, the Committee moved to view the visitor log in camera to determine whether the records were properly classified. In reviewing the visitor log, we found the information contains standard visitor information with nothing more except for visitor addresses and phone numbers. As a result, we determine that only the addresses and phone numbers warrant protection under the GRAMA, and that releasing the remainder of the log is not an unwarranted invasion of personal privacy.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is GRANTED. Respondent is ordered to disclose the visitor log but may redact visitors’ addresses and phone numbers.
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).
Entered this 5 day of June, 2023
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANNA AND BRYAN BAGGALEY, Petitioners, v.
GRANITE SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 23-05
By this appeal, Anna and Bryan Baggaley (“Petitioners”), request records allegedly held by Granite School District (“Respondent”).
FACTS
On April 21, 2022, Petitioners submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking records pertaining to Granger High School’s decision to remove Petitioner, Anna Baggaley, from her 2nd period US Government Class. These records were to include “emails, meeting notes, files, complaints, written decisions, etc.”
On May 3, 2022, the Respondent denied the request, stating that if such records do exist, they are classified as private and protected under the following GRAMA sections:
-305(10): records created or maintained for civil, criminal, or administrative enforcement purposes . . ., or for discipline . . ., if release of the records could interfere with such investigations or proceedings;
-302(2)(a): records concerning a current or former employee that are not otherwise public; and
-302(2)(d): private records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.
Petitioners appealed to Respondent’s chief administrative officer (“CAO”) on June 1, 2022. Petitioners argued that the Respondent’s determination was legally incorrect, that the classifications given the records were in error. The CAO failed to answer the appeal which constitutes a denial under the GRAMA. Utah Code § 63G-2-401(5)(b).
Petitioners now appeals to the State Records Committee (“Committee”), challenging the Respondent’s decision. On January 19, 2023, 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.
STATEMENT OF REASONS FOR DECISION
During the hearing, it became evident to this Committee that in addition to the records sought, Petitioners are looking for some manner of redress against the Respondent. While the Committee sympathizes with the family’s situation, and certainly concerned for their daughter and the ordeal she experienced , we must address that if administrative remedies are available to Petitioners or their daughter, they cannot be found here – this Committee has no legal authority to offer them. Our statutory purview is records and their disclosure. As a result, our focus must remain strictly on the records relating to this appeal.
At the hearing, Petitioners provided a list of specific records he believed should be or are in the Respondent’s possession, and therefore, should be disclosed in response to his original GRAMA request. To this, Mr. Horsley, in-house counsel for the Respondent, stated that it was the first time he had seen such a list of specifically requested records – that the language of Petitioners’ original GRAMA request was broadly directed to records related to an actual investigation and discrimination claims. Counsel for the Respondent took time during the hearing to address each specific record and his knowledge of whether it was disclosed. He concluded that, to his knowledge, some of the listed records had been disclosed, some could not be disclosed due to their status or classification under the GRAMA, some likely existed and could be disclosed, and some did not exist at all. From counsel’s claims, we find it appropriate that the Respondent have an adequate opportunity to thoroughly review the list of specific records and then deliver any remaining responsive records. If at that time Petitioners believe the Respondent is still in error – that the Respondent has misclassified certain records to withhold their access, that the Respondent has unlawfully withheld access to responsive records, or that evidence shows that supposedly non-existent records do in fact exist and are in the Respondent’s possession – then he may request this Committee reopen this appeal for further review.
ORDER
THEREFORE, for the foregoing reasons, Petitioners’ appeal is hereby CONTINUED to the next available hearing to allow the Respondent time to review the list of specified records produced at the hearing and disclose the responsive records.
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).
Entered this 30 day of January 2023.
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY TANNER (Salt Lake Tribune), Petitioner,
UTAH SYSTEM OF HIGHER EDUCATION (USHE), Respondent,
CORRECTED
DECISION AND ORDER
Case No. 23-28
By this appeal, Courtney Tanner (“Petitioner”), requests records allegedly held by Utah System of Higher Education (“USHE”). This case appeal originally came before the State Records Committee (“Committee”) on April 20, 2023. In that hearing, this Committee ordered the matter to be continued to allow us more time to review the records in camera. Courtney Tanner v. Utah System of Higher Education, Utah State Records Committee, Decision and Order No. 23-15 (entered May 1, 2023). We now continue that hearing and enter our order on this matter. Before doing so, however, we restate the facts as they were laid out in Order No. 23-15.
FACTS
The Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On November 22, 2022, Ms. Tanner requested “any communication between and among members of the Utah Board of Higher Education, the USHE commissioner and/or his executive team and/or [Utah State University] President Noelle Crockett about Crockett’s tenure, concerns about her administration and/or her departure as president and any agreements about what that would look like.”
In a response dated December 1, 2022, USHE stated that Petitioner’s request for “any agreement” was resolved when USHE provided the only agreement between the Board and President Crockett regarding President Crockett’s departure in Petitioner's first GRAMA request. The Respondent then went on to deny the remaining requests on the grounds that the requested records were private under Utah Code § 63G-2-301(3)(d) and Board Policy R209.
On December 15, 2022, Petitioner appealed to the Respondent’s chief administrative officer (“CAO”), Commissioner David Woolstenhulme. In her appeal, Petitioner challenged whether the requested records were correctly classified as private. Petitioner argued that the statute cited by UHSE in its initial denial is not applicable. Specifically, Petitioner argued that Subsection 301(3)(d) applied only to contracts that a governmental entity enters into. She claimed that only part of her request was for any contracts responsive to her request, and that the other half of her request was for communications about the contracts, if any.
However, Petitioner was met with another denial. The CAO conceded that Subsection 301(3)(d) did not apply to the request for communications, but stated that Subsections 302(2)(a), 305(25), and 305(28) do. Under those provisions, the CAO determined that the records were classified as private and restricted from disclosure. Further, the CAO acknowledged his weighing authority under Utah Code § 63G-2-401(6) which allows him to order the records be disclosed if after considering the various interests relative to disclosing the records or keeping them restricted he determines that the interests weigh in favor of disclosure. However, even upon weighing the competing interests, the CAO determined that disclosure was not warranted.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On June 15, 2023, the Committee continued the hearing from April 20th. 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 CAO properly classified the records as private, and if so, whether the interests favoring disclosure outweighs those favoring restriction.
STATEMENT OF REASONS FOR DECISION
When a records request is denied and the appeal comes before this Committee, that law allows us to review the disputed records in camera. Utah Code § 63G-2-403(9)(a)(ii). Upon reviewing the records privately, we may then determine the outcome of the appeal.
Upon reviewing the records in camera, we find that some of the records should be disclosed and others are properly classified and may not. For those records that are to be disclosed do contain sensitive information and we require that information be redacted.
It came to our attention that our Decision and Order issued in this matter (Decision and Order No. 23-28) contained typographical errors in four of the file names we ordered disclosed. Upon reviewing the record and verifying the errors, we issue this Corrected Decision and Order to clarify our order and the files that must be disclosed. This Corrected Decision and Order serves only to clarify our initial order and does not alter its overall terms. Thus, the terms from our initial order are incorporated fully herein.
CORRECTED ORDER
Petitioner’s appeal is hereby GRANTED in part and DENIED in part according to the following.
The Respondent is ordered to disclose to petitioner the following files as they were labeled and delivered to us for our review. Moreover, the Respondent shall redact personal email addresses and phone numbers from the listed records. The files names that were incorrect in our initial Order are corrected in bold.
File Name
1. BF to board 11092022
2. DW to Exec committee 11032022
3. GA to BF and LMC 11092022
4. JB to MC 11082022
5. LMC and GC 11092022
6. LMC to BF 07052022
7. LMC to ST 08122022
8. NC and LMC on 11022022
9. NC and LMC 11052022
10. NC to LMC on 11082022
11. ST to LMC and DW 09272022
All other disputed records not named in this list may be withheld.
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).
Entered this 11 day of July, 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DANIEL HERRERA, Petitioner, v.
DEPARTMENT OF CORRECTIONS, Respondent,
DECISION AND ORDER
Case No. 23-24
By this appeal, Daniel Herrera (“Petitioner”), requests records allegedly held by the Department of Corrections (“Respondent”).
The Utah State Records Committee (“Committee”) scheduled a hearing for January 19, 2023, for this appeal to be heard. At the hearing, Petitioner requested that the matter be continued to a later date because he was going to be released from his incarceration within a few weeks, and, upon his release, he wanted the opportunity to meet with and retain legal representation for this matter. The Respondent was given the opportunity to respond and had no objection. Finding no good reason to deny Petitioner’s request, this Committee granted a continuance to a later date.
Since then, the Committee’s executive secretary has not heard from or been able to reach Petitioner to reschedule his hearing. Given that it has been over four months with no contact from him, the Committee has moved to dismiss this appeal.
ORDER
THEREFORE, for the foregoing reasons, we order Petitioner’s appeal DISMISSED. The decision of the Respondent’s chief administrative officer in this matter stands undisturbed.
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).
Entered this 26 day of May 2023
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JACK WIDDISON, Petitioner, vs
MOUNT PLEASANT CITY, Respondent,
DECISION AND ORDER
Case No. 23-33
By this appeal Jack Widdison (“Petitioner”), requests records allegedly held by Mount Pleasant (“Respondent”).
FACTS
On August 15, 2022, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested a copy of the recording of the Mt. Pleasant City closed meeting that was held on July 12, 2022, in which Petitioner was a topic of discussion. Respondent denied the request stating that the recording was classified as a “protected” record pursuant to Utah Code § 52-4-208(5).
Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”) who upheld the denial on October 10, 2022; however, in doing so, the CAO cited Utah Code § 63G-2-201(5)(a) as the basis for denying the request. Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On July 20, 2023, 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. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
ISSUES FOR REVIEW
We must determine whether the recording is properly classified as protected and if the recording must be released.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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 private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5). Additionally, if a record is restricted pursuant to another state statute, the record is also not a public record and may be released to the requester only in accordance with that statute. Utah Code §§ 63G-2-201(3)(b); 63G-2-107(1).
The Utah Open and Public Meetings Act (“OPMA”) expressly addresses records of closed meetings and their availability to the public under a GRAMA request. That law states that a recording of a closed meeting is a protected record under the GRAMA, except that the record “may be disclosed under a court order as provided under Section 52-4-304.” Utah Code § 52-4-206(5)(a). Furthermore, the GRAMA classifies as protected “transcripts, minutes, recordings, or reports of the closed portion of a meeting of a public body except as provided in Section 52-4-206.” Utah Code § 63G-2-305(32). Because the GRAMA expressly points to the OPMA provision restricting access to a closed meeting recording except by way of a court order, our review of the appeal must be concluded by upholding Respondent’s denial and deferring to a court order if Petitioner chooses to appeal.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED. The records are properly classified as protected under both Utah Code §§ 63G-2-305(32) and 52-4-206(5)(a) and may not be disclosed without a court order.
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).
Entered this 1 day of August 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON (Utah Investigative Journalism Project), Petitioner, vs
SALT LAKE CITY POLICE DEPARTMENT, Respondent,
DECISION AND ORDER
Case No. 23-32
By this appeal Eric Peterson (“Petitioner”), requests records allegedly held by Salt Lake City Police Department (SLCPD) (“Respondent”).
FACTS
On June 9, 2021, the body of Joseph Salas was found in the Jordan River near North Temple. Petitioner, an investigative journalist with the Utah Investigative Journalism Project, has reported on and followed the investigation since that time. As of late, Petitioner became concerned that the Respondent had not been actively investigating the case. Consequently, on March 20, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”) requesting the “full unredacted report into the homicide investigation of Joseph Salas found in the Jordan River near North Temple on June 9, 2021.” But that request wasn’t responded to within 10 business days, which, pursuant to Utah Code §63G-2-204(9), constituted a formal denial of the request.
Petitioner appealed the de facto denial to Respondent’s Chief Administrative Officer (“CAO”) on April 12, 2023. Rachel Otto, the CAO, affirmed the denial of Mr. Peterson’s request and explained that “the City does not believe that the public interest in this investigation outweighs the interest in preserving the integrity of the investigation and the rights of the individuals involved. Accordingly, the records of the homicide investigation are ‘protected’ pursuant to Utah Code §63G-2-305(10)(a).” However, also within her response, Ms. Otto informed Petitioner that one of the city attorneys reached out to the Respondent to inquire the status of the Salas investigation and was assured that detectives were still actively investigating the case.
Notwithstanding that assurance, Petitioner has now appealed to the State Records Committee (“Committee”) challenging the CAO’s decision. On July 20, 2023, 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
Whether the full investigation report into Mr. Salas’s death is properly classified and if by a preponderance of the evidence the public interest favoring access is equal to or greater than the interest favoring restriction of access.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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 private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5).
1. The Requested Records are Properly Classified as Protected under the GRAMA.
The record at issue here is the investigation file pertaining to Mr. Salas’s homicide. The GRAMA classifies criminal investigation records as protected as long as they meet one of five possible conditions. The Respondent’s CAO classified the investigation file as protected under the condition outlined in Subsection 305(10)(a), which states that the following records are protected if classified correctly:
(10) records created or maintained for civil, criminal, or administrative purposes . . . if release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes.
Utah Code § 63G-2-305(10)(a) (emphasis added).
In her denial letter, the CAO explained that the Respondent classified the investigation file as protected because it “does not believe that the public interest in this investigation outweighs the interest in preserving the integrity of the investigation and rights of the individuals involved.”
At the hearing, Captain Alma Sweeny, who oversees the Investigations Division for the Respondent, testified before the Committee that not only was the investigation ongoing, but that releasing the records could compromise investigators’ efforts. For example, Captain Sweeny explained that when a file containing details of an active investigation is released, those details can become known to the public. At that point, the public knows information about the case, the crime scene, the victim, or any other matter that only the police should know. When this happens, interrogating suspects and questioning persons of interest becomes jeopardized because it is difficult to ascertain whether the individual knew the details of the crime merely because those details are now public knowledge or because the individual has firsthand knowledge.
We believe this is precisely what the legislature had in mind when it codified Subsection 305(10)(a). Because the investigation file concerns an active ongoing criminal investigation, we find that releasing the file could reasonably be expected to interfere with the efforts the Respondent is undertaking for enforcement purposes. Therefore, we find that the requested investigation file into Mr. Salas’s homicide is properly classified as protected under Utah Code § 63G-2-305(10)(a).
2. The Evidence Does Not Support Disclosing the Releasing Records.
Normally, if a record is properly classified as protected under Section 305, this Committee has the authority to weigh the “various interests and public policies pertinent to the classification and disclosure or nondisclosure” and then order the disclosure of the records “if the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). But when a record is properly classified as protected under Subsection 63G-2-305(10), the Code requires us to forego that traditional weighing analysis and instead look to the actual evidence presented. Utah Code § 63G-2-403(11)(b) (pointing to § 63G-2-406(1)). Subsection 406(1) states that if the petitioner can establish “by a preponderance of the evidence[ ] that the public interest favoring access is equal to or greater than the interest favoring restriction of access,” then we have the discretion to order the records be disclosed. Utah Code § 63G-2-406(1). That is, when analyzing a record protected under Subsection 305(10), we no longer look at the “various interests and public policies pertinent to the classification and disclosure or nondisclosure”; rather, we are to look only at the actual evidence showing that the public interest favoring disclosure outweighs that of restriction. Compare § 63G-2-403(11)(b) with Utah Code § 63G-2-406(1).
Here, Petitioner relies only on policy arguments rather than evidence that the public interest outweighs disclosure. As noted above, weighing public policies favoring disclosure is not permitted when analyzing disclosure under Subsection 305(10) protection. But even if it were, as much as we might agree on the policies that the family of a homicide victim should be updated on the status of an investigation, or that police should investigate the homicides of homeless individuals with as much fervor as society’s elites, we don’t find those policies compelling enough to disclose the records. As Captain Sweeny testified and the Committee discussed, there may be viable law enforcement strategies at hand in deliberately not updating the family.
Nonetheless, it is Petitioner’s burden under Section 406(1) to show by a preponderance of the evidence that the public interest favoring disclosure outweighs the interest favoring restriction. In this case, Petitioner provided no evidence other than policy arguments. Consequently, the burden has not been met and since the statute bars us from considering disclosure until such evidence is presented, we must affirm the CAO’s decision and deny the appeal.
ORDER
THEREFORE, Petitioner’s appeal is hereby DENIED. The investigation file for Joseph Salas is properly classified as protected under Utah Code § 63G-2-305(10) and there is no evidence supporting disclosing the file.
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).
Entered this 1 day of August 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, vs
DIVISION OF RISK MANAGEMENT, Respondent
DECISION AND ORDER
Case No. 23-46
By this appeal Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by Division of Risk Management (“Respondent”).
FACTS
This matter is a reconsideration of our decision in Amann v. Division of Risk Management, Utah State Records Committee, Decision and Order, case no. 23-39 (entered Aug. 28, 2023) (those facts are incorporated herein by reference). In that decision, we determined that Respondent must disclose requested invoices it received from the Attorney General’s Office and paid on its behalf. Those invoices were for third-party legal services billed to the Attorney General’s Office in connection with litigation the Office had with Petitioner. After our order was entered, however, Respondent submitted a request for reconsideration, bringing to attention a statute it did not raise at the August 17th hearing. According to Respondent, Utah Code § 63A-4-207 prohibits it from complying with our order.
ISSUES FOR REVIEW
We must examine whether Utah Code § 63A-4-207 provides a legal justification for Respondent to not comply with Decision and Order, no. 23-39.
STATEMENT OF REASONS FOR DECISION
Section 63A-4-207 pertains to a record submitted by a governmental entity to Respondent in which the record requires Respondent paying out of the state’s Risk Management Fund. The statute states: “A record provided to the Division of Risk Management by any governmental entity . . . covered by the Risk Management Fund for the purpose of risk control or claims activities of the division shall be considered a record of the originating governmental entity . . . for purposes of Title 63G, Chapter 2. [GRAMA], if the originating governmental entity . . . retains a copy of the record.” Utah Code § 63A-4-207(1).
The Attorney General’s Office submitted the invoices to the Respondent as a claims activity so that the invoices could be paid. Respondent handles all such claims activities for governmental entities, including the Attorney General’s Office. At the hearing, Respondent’s attorney confirmed that the Attorney General’s Office retained a copy of the invoices it submitted for payment.
When a requester seeks records from Respondent that constitute a claims activity, it’s evident that Subsection 207(1) redirects the requestor to seek the records from the governmental entity that submitted them as a claims activity to Respondent. Therefore, since the Attorney General’s Office retains the sought after invoices, and because the invoices were delivered to Respondent as a claims activity, we find that Subsection 63A-4-107(1) is applicable and a legal justification for Respondent’s non-compliance with order 23-39. We find that under that statute, Respondent cannot comply with our order. Petitioner is directed to request the invoices from the Attorney General’s Office.
ORDER
THEREFORE, in accordance with this decision, that part of order 23-39 concerning the invoices is hereby vacated and Petitioner’s appeal on that issue is DENIED.
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. UtahG 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).
Entered this 2nd day of October 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LYNN DAVID, Petitioner, v.
WASATCH COUNTY, Respondent,
DECISION AND ORDER
Case No. 23-62
By this appeal, Lynn David (“Petitioner”), requests records allegedly held by Wasatch County (“Respondent”).
FACTS
Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On July 10, 2023, Petitioner made the following request:
Due to the breadth of the request and the issues involved with identifying responsive records, Respondent’s records officer initially responded to Petitioner on July 18, 2023, informing him that “significant effort” would be required to fulfill such a broad request and requested that he clarify his response to more specific parameters. The records officer invited him to revise his request.
Petitioner responded to the records officer on July 19, 2023, with some clarification. He informed the records officer that he was not interested in records concerning “questions,” “appeals,” “inquiries,” “applications,” “GRAMA requests,” and other issues unrelated to an individual’s dissatisfaction with Respondent. He informed the officer that he would like to proceed with his request as originally submitted.
Respondent did a preliminary search in the email archive software using the term “complaint” to attempt to get an idea of the number of potentially responsive emails that would need to be reviewed in order to respond to the request. The search returned 34,324 potentially responsive emails for the timeframe of 2015-2023. This estimate didn’t include any other records that might be available in other electronic formats or hardcopy. Respondent denied Mr. David’s fee waiver request and notified him that they would need $8,581 to begin to process his request.
Petitioner appealed the decision to the Chief Administrative Officer (CAO) on July 21, 2023. The CAO denied the appeal “due to the legitimate cost concerns raised by county staff.”
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 21, 2023, 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 Respondent’s denial of the fee waiver request was reasonable.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, if the records must be extracted from a larger source and it’s not feasible to allow the requester to compile the records himself, the governmental entity may charge a reasonable fee under § 63G-2-203. Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136, ¶¶26, 28. Upon finding that a fee may be charged, a requester may request the fee be waived. Upon review of a governmental entity’s fee waiver denial, “the ultimate question is not whether the entity abused its discretion, but whether its decision was reasonable.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52.
Respondent is a county government office and has multiple divisions within its organization. As such, Respondent has numerous sources to where complaints from the public may be submitted, including online submissions, email, and hard copies mailed in or physically dropped off. From email alone, a basic search for “complaint” returned over 34,000 possible responsive records. Certainly, Respondent cannot be expected to allow Petitioner or any member of the public to search its email server and then examine each email sent to the county to determine its responsiveness. Accordingly, we find that the time it will take to compile records from the multiple sources and then filter through them to determine their responsiveness does permit Respondent to assess a fee to fill the request pursuant to the rule outlined in Graham. Our finding is reinforced by the fact that Respondent’s record officer will need to search multiple sources and divisions to obtain all possible responsive records.
In light of the thousands of records that must be compiled and then reviewed to determine responsiveness, we find that Respondent’s decision to deny the fee waiver request was reasonable. With that said, however, we can appreciate the intent of Petitioner’s endeavor that he testified about in the hearing. We find that Respondent has shown a good faith effort to work with Petitioner to get him the records he seeks. As a result, we suggest to the parties that they corroborate in continued good faith by allowing Petitioner to piecemeal his records request starting with the smaller divisions and offices under Respondent’s purview and then working to its larger sources. This approach, we think, may help satisfy the legislature’s intent that Petitioner have “easy and reasonable access to unrestricted public records” without making Respondent “overwhelmed by [a] time-consuming and burdensome records request.” Utah Code § 63G-2-102(3)(a); Graham at ¶23.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby denied.
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).
Entered this 3rd day of January 2024
BY THE STATE RECORDS COMMITTEE
________________________________
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY TANNER, Petitioner, v.
UTAH SYSTEM OF HIGHER EDUCATION, Respondent,
DECISION AND ORDER
Case No. 24-23
By this appeal, Courtney Tanner (“Petitioner”), requests records allegedly held by Utah System of Higher Education (“Respondent”).
FACTS
This matter concerns three separate record requests that Petitioner submitted to the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). The requests were all denied for various reasons with the Respondent’s records officer determining that various provisions of GRAMA shielded the requested records or that no responsive records were available.
Petitioner’s three requests sought the following:
Petitioner eventually appealed the denials to the State Records Committee (“Committee”). On February 15, 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
We are asked to determine whether the Respondent performed a reasonable search for the letter of resignation and separation agreements, and then whether the responsive records are properly classified and withheld.
REASONS FOR DECISION
I. The Letter of Resignation
Under GRAMA, “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). When a governmental entity receives a record request, the government then has a duty to perform a reasonable search for the requested record. Utah Code § 63G-2-201(7)(b). If the government provides by a preponderance of the evidence that a reasonable search has been performed, then the burden shifts to the petitioner to show, also by a preponderance of the evidence, that the search efforts were not reasonable. Utah Administrative Code R35-1-3(1)(a)-(b).
Here, the Respondent’s in-house attorney testified that she personally handled the record request and searched through the email server for any and all responsive records that would’ve been submitted or exchanged with Mr. Woolstenhulme. In addition, the Respondent produced the resignation letter to the Committee for an in camera review which indicates that the Respondent also searched Mr. Woolstenhulme’s file. Although no separation agreements were produced, Petitioner has not pointed to any evidence that suggests that the search efforts were not reasonable. Accordingly, we find that the Respondent carried out a reasonable search for the requested record.
Upon reviewing the resignation letter in camera, we find that it is classified correctly as a private record. GRAMA classifies a record as private if the record “concerns a former employee of a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities. . . .” Utah Code § 63G-2-302(2)(a) (cleaned up). The statute’s use of the word “including” is noteworthy. Utah law is clear that the word “including” in a statute “means that the items listed are not an exclusive list, unless the word ‘only’ or similar language is used to expressly indicate that the list is an exclusive list.” Utah Code § 68-3-12(1)(f). Thus, performance evaluations and personal status information are merely a short non-exclusive list of employment-related records that could be classified as private under Subsection 302(2)(a). We find that Mr. Woolstenhulme’s resignation letter obviously concerns him and his public employment, and because the statute is not limited to performance evaluations and personal status information, the letter is correctly classified as a private record under Subsection 302(2)(a).
Although the resignation letter is a private record, our analysis doesn’t end there. Under GRAMA, if a record is properly classified as private, we are to consider and weigh “the various interests and public policies pertinent to the classification and disclosure or nondisclosure” and order the record be disclosed if the “public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). In doing so, however, we must be mindful that “the balancing analysis under GRAMA must be tethered to the specific interests of the parties and the particularized application of the relevant public policies at issue.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶51.
Here, the policy behind making a public employee’s employment records private is to counterbalance GRAMA’s allowance that some employment information be made public. See Utah Code § 63G-2-301(2)(b) (listing an exclusive list of employment-related information that is a public record under GRAMA). That is, by the nature of their employment, public employees necessarily lose some expectation of privacy in their employment records and GRAMA’s Subsection 302(2)(a) aims to balance what privacy is lost by prescribing what may remain protected. However, GRAMA’s protections cannot be viewed in a vacuum. Schroeder explained that weighing general policy interests without focusing on their specific application to the requested records “is problematic because many of the exceptions to GRAMA’s disclosure requirements involve policies that virtually always outweigh the public’s right to know.” Schroeder at ¶55. Therefore, we must look at the particularized interests and policies pertinent to disclosure, not take a general analysis. Id. ¶57.
Mr. Woolstenhulme was not a standard public employee; he was the commissioner of the Utah Office of Higher Education. This, of course, is no small role and holds significant public interest in how higher education is governed in Utah. His resignation made local news and has been followed by media outlets and the public alike. As we reviewed his resignation letter in camera we found nothing in the letter that would reasonably reveal the identities of the complainants who initiated the chain of events that led to his resignation. From that, we see there are no other privacy interests at stake besides Mr. Woolstenhulme’s. And because he is no longer in his role, the significant public interest in that role, and the media coverage of his resignation, we find that the interests favoring disclosure outweigh the interests favoring restriction and the letter must be released.
II. The Complaints and Findings
The Respondent denied the request for complaints and findings primarily on the grounds that responsive records are private under Subsection 302(2)(a) and protected under Subsection 305(10). While complaints and findings from investigations are likely associated with a public employee’s personnel file, Subsection 305(10) directly addresses investigatory records. Therefore, we believe -305(10) is the proper provision to analyze.
Subsection 305(10) states in pertinent part that the following records are protected if properly classified by a governmental entity:
(10) records created or maintained for civil, criminal, or administrative purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes;
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings;
. . .
Utah Code § 63G-2-305(10). Consequently, our inquiries are whether there was a civil, criminal, or administrative process, and whether releasing the records would reasonably interfere with that process.
The evidence produced to the Committee shows that there were two separate administrative investigations that ensued after complaints were filed—one internal investigation and one conducted by the Title IX Office for the university. The evidence also showed that Mr. Woolstenhulme resigned before either investigation could conclude and, for the internal investigation, a resignation triggers dismissal of the investigation. Consequently, although the internal investigation was never formally completed with a final report and findings, it has been officially closed.
GRAMA indicates that records for a closed investigation no longer fall under Subsection 305(10). The language in that subsection states that records are protected if their disclosure would “reasonably interfere” with the investigation or proceedings. But here, the internal investigation had ceased and, therefore, could no longer be interfered with. As a result, the records, as they relate to the internal investigation, are not protected by Subsection 305(10).
As for the Title IX investigation, the Respondent testified that it wasn’t aware of the status of that investigation. Although this is a separate investigation, we are not in a position to speculate as to the effect releasing the records would have on the Title IX investigation. In any case that comes before us, the respondent has the burden to prove that restricting access to the records is both lawful and appropriate. See Schroeder, 2015 UT 77, ¶27 (citing Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26) (“[t]he government has the burden to establish that a document falls into one of these nonpublic categories”). As the Respondent has made no showing that releasing the records would reasonably interfere with the Title IX investigation or its proceedings, we find that Subsection 305(10) does not shield the records from disclosure.
With that said, the Respondent did raise the issue at the hearing that the records constituted drafts that were preliminary to a final report. Under 63G-2-305(22), drafts are protected records. But even conceding that the records were drafts, we find that disclosure is still warranted under a weighing analysis.
As discussed above, the public interest in records relating to Mr. Woolstenhulme are significant due to the role he served in before his resignation. To release complaints serves another public interest in allowing the public to understand the repercussive effects of impropriety among high level state officials. Again, given that the investigation has closed, the GRAMA’s protective policy reason behind Subsection 305(10) is weakened below the threshold level required to maintain the records’ restriction. Compare Schroeder at ¶55 (“For example, the interest in protecting attorney work product is more compelling during ongoing litigation than it is years after a dispute has been resolved.”). Accordingly, we find that that the complaints and findings are improperly withheld.
With that said, we make an important note that upon our in camera review of the records at issue, we found that they contained some information that could draw reasonable conclusions of who the complainants were. To us, it’s significant that the complainants filed their complaints anonymously and wished to remain so. Therefore, full disclosure of the records would constitute an unwarranted violation of personal privacy.
As a result, we conclude that the Respondent must disclose only the draft version of the final report but with redactions. The Respondent may redact the information that could reasonably be used to identify the complainant; specifically, that information that relates to where and when the alleged misconduct occurred, and indications of the relationship familiarity the complainants had Mr. Woolsenthulme.
III. The Communications
The Respondent withheld the requested communications pursuant to Subsection 63G-2-302(a), arguing they are records that concern a former employee. Upon reviewing the records in camera we find that the records can and would reveal the identities of the complainants. As demonstrated directly above, this Committee is sensitive to protecting victims’ identities contained in government records. In Tanner v. Utah State University, Decision and Order no. 24-17, Utah State Records Committee (entered Feb. 26, 2024), we ruled that complaints filed with the University against Mr. Woolstenhulme were protected under Subsections 302(2)(d) and 305(10)(d) because disclosing the complaints would reveal information about “victims, alleged victims, and sources who would not generally be known outside of government.” Id. at 3. Because we find that victims’ information could be discovered here, we find that the communications are properly classified and withheld.
ORDER
THEREFORE, this appeal is GRANTED in part and DENIED in part. In accordance with this Decision, the Respondent shall deliver to Petitioner those records that we outlined above must be disclosed. Additionally, the Respondent may withhold those records we outlined as able to be restricted.
It is so ordered.
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).
Entered this 1 day of April 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN BOOS, Petitioner, vs
SAN JUAN COUNTY, Respondent
DECISION AND ORDER
Case No. 23-49
By this appeal Steven Boos (“Petitioner”), requests a fee waiver and records allegedly held by, San Juan County (“Respondent”).
FACTS
Petitioner is an attorney who, on November 3, 2022, filed a record request with Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). His request sought 61 total items that related to Respondent allegedly releasing emails that were private and confidential under attorney-client privilege without authorization. According to Petitioner, the emails and other records were released in response to a GRAMA request from a third-party and subsequently publicized. Further, Petitioner alleges that he, his clients, and his paralegal are the subjects of the vast majority of the requested records. Petitioner also requested a fee waiver.
In an initial response dated December 2, 2022, Respondent informed petitioner that upon reviewing the request, the majority of the requested items would not require a fee, specifically, those items that reference Petitioner or his paralegal, as well as those which implicate his legal rights. However, items 25-29 and 32-34 would warrant a charge because neither Petitioner nor his paralegal are the subject of the records, nor is Petitioner mentioned by name. The estimated total fee was $1,385.20 and the request would not be processed until the fee was paid in full. Additionally, Respondent informed Petitioner that items 60 and 61 were available on Respondent’s website.
In a follow-up response on December 12, 2022, Respondent delivered some but not all of the records. Of the 61 items requested, Respondent withheld 36 of them on the basis that a fee for the records must be paid before they would be disclosed. Respondent also stated that in addition to the other withheld records, items 14 and 18 also warrant a fee for their disclosure. For this, on January 9, 2023, Petitioner appealed to Respondent’s chief administrative officer (“CAO”). In that appeal, Petitioner specifically argued that not only have requested records been withheld, but the fees assessed for items 14, 18, 25-29, and 32-34 were improper because “a government disclosure and compromise of confidential and privileged records is a matter of public interest,” and “since the requester himself may retrieve and compile the records, no fee should be charged” (Petitioner then cited Graham v. Davis County, etc. 979 P.2d 363, 372 (Utah Ct.App. 1999) in support for that notion). However, Petitioner’s appeal went unanswered, which constitutes a formal denial under Utah Code § 63G-2-401(5)(b). [1]
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On September 21, 2023, 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 issue before us is whether Respondent’s denial of the fee waiver request was reasonable.
STATEMENT OF REASONS FOR DECISION
Although GRAMA provides that a person has the right to inspect a public record and even take a copy of a public record during working hours, (Utah Code § 63G-2-201(1)(a)), the law also permits the government to assess a fee for requested records in certain situations. For instance, when a governmental entity compiles a record in a form other than that which it normally maintains the record in, the entity may assess a fee for the cost of staff time to search, retrieve, compile, format, and tailor the records to the request. Utah Code § 63G-2-203(1)(2)(a)(i)-(ii). When assessing the fee, the hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to fill the request. Utah Code § 63G-2-203(2)(b). If the fee is expected to exceed $50.00, the governmental entity may require payment of the estimated fee upfront before processing the request. Utah Code § 63G-2-203(8)(a)(i).
Here, the records are voluminous and require notable effort in retrieving, compiling, and reviewing them for any information that is protected under GRAMA. After this effort, Respondent will need to redact the records accordingly, then package and deliver them to Petitioner. We find that these efforts warrant the fee.
In Petitioner’s materials he argues that he and his clients are the subjects of the records. As a result, a fee waiver is in order. We have no reason to question his claim about being the subject of the records, but GRAMA doesn’t require a fee waiver in such cases. GRAMA states that a governmental entity is encouraged to fill the request if it determines that the requestor is the subject of the record. Utah Code § 63G-2-203(4)(b). This does not create a mandate on the government to waive the fee, and certainly when the records sought are voluminous, the efforts to fill the request may entirely override the policy encouraging a fee waiver. See Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62 (despite records request primarily benefiting the public, the decision to deny the fee waiver request was reasonable because the records were voluminous and would require numerous hours to compile and copy). Accordingly, we find that the decision to deny the fee waiver request was reasonable in this instance.
ORDER
THEREFORE, in accordance with our decision, Petitioner’s request is hereby DENIED.
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).
Entered this 2nd day of October 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
1. Respondent has shown that its CAO did respond to the appeal in a letter dated January 20, 2023, but the letter, unfortunately, got trapped in the CAO’s email outbox and was never formally delivered on time. In the letter, the CAO explained why the remaining records warrant a fee and he ultimately upheld Respondent’s decision.
",Denied,2023-10-02T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LUIS SANCHEZ, Petitioner, vs
UTAH DEPARTMENT OF PUBLIC SAFETY (DPS), Respondent,
DECISION AND ORDER
Case No. 23-57
By this appeal Luis Sanchez (“Petitioner”), requests records allegedly held by, Utah Department of Public Safety (“Respondent”).
FACTS
On May 14, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested “access to all records related to Jared Brooks Cardon’s traffic accident of June 21, 2021.” Jared Cardon was a Unified Police Department officer who crashed his police vehicle on I-15 in Salt Lake County. As a result of the crash, Mr. Cardon was charged with a third-degree felony, a class A misdemeanor, and two class B misdemeanors. His criminal trial is currently pending. The Petitioner stated that “this request aims to uncover whether there was a proper and unbiased investigation into the accident.” Specifically, Petitioner requested the following records be provided:
1. Any reports, documents, or other materials related to the accident and subsequent investigation, including Garrity statements and witness statements, either created, controlled, or accessed by this agency.
2. Any video, audio, recorded phone calls and photographic evidence created, controlled, access or collected regarding the incident and investigation.
3. Any related emails, memoranda, or other written communications related to the investigation and accident, either created, controlled, or accessed by this agency.
4. Any findings, conclusions, prosecution, disciplinary action, or recommendations made by the department regarding the investigation and accident, either created, controlled, or accessed by this agency.
5. Evidence audit trail of all evidence.
On May 30, 2023, the Respondent denied the request citing an “ongoing investigation or criminal prosecution.” The Respondent pointed to Utah Code § 41-6a-404, and also informed Petitioner that the “prosecutor in this case [has] requested that we do not release these records until the case has been adjudicated.” Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”). The CAO upheld the denial on the same grounds, as well as the fact that the records are protected under Utah Code § 63G-2-305(10).
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On November 16, 2023, 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
We are asked to determine whether the requested records are properly classified, and, if so, whether the records may still be released.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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 protected under Section 63G-2-305 is not public and its access may be restricted. Utah Code § 63G-2-201(3). If a record is classified as protected under Subsection 63G-2-305(10), then the burden is on the requester to show “by a preponderance of evidence” that the interests favoring access to the record are at least equal to the interests favoring restriction. Utah Code § 63G-2-406(1).
Subsection 63G-2-305(10) classifies the following records as protected: Records created or maintained for civil, criminal, or administrative purposes . . . if release of the records would create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(c). In the appeal before us, Petitioner seeks records concerning a currently pending criminal trial. He argues that the public interest favors disclosure in providing transparency into Mr. Cardon’s investigation. True as that may be, we find that the evidence favoring access is not a preponderance equal to or greater than the public policy behind Subsection 305(10)(c).
When evidence and investigative reports are presented in a trial, the defendant has procedural safeguards to check the veracity of the evidence. However, when such evidence is leaked or otherwise published, those courtroom mechanisms are non-existent and the public reads or obtains the information through the prism of how the author publishes it. As Petitioner intends to publish his findings from the requested records, it is a reasonably foreseeable possibility that the revealed information in the records could taint the jury and/or witnesses. This, of course, would jeopardize Mr. Cardon’s right to a fair and impartial trial. Accordingly, we find that the records are properly classified under Subsection 63G-2-305(10)(c) and Petitioner has not met the burden of proof required to compel disclosure.
ORDER
THEREFORE, in accordance with our Decision above, Petitioner’s appeal is hereby DENIED.
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).
Entered this 28 day of November 2023
BY THE STATE RECORDS COMMITTEE
Kenneth R. Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL TURLEY, Petitioner, v.
DIVISION OF HUMAN RESOURCES MANAGEMENT, Respondent,
DECISION AND ORDER
Case No. 24-18
By this appeal, Michael Turley (“Petitioner”), requests records allegedly held by the Division of Human Resources Management (“Respondent”).
FACTS
Petitioner is a former Adjutant General of the Utah National Guard. In August 2023, Governor Spencer Cox placed Petitioner on paid administrative leave based upon information he received from an investigation conducted by the Department of the Army Inspector General into allegations of Petitioner’s wrongdoing. The Respondent then received anonymous allegations against Petitioner which resulted in the Respondent opening its own investigation into the matter. Despite the Army Inspector General clearing Petitioner and finding no wrongdoing, Petitioner ultimately resigned from his post. His record request ensued.
On August 22, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, he requested records associated with the Respondent’s investigation. In response, DHRM provided around 19 pages of minimally redacted records and either withheld or more heavily redacted around 11 pages. The withheld and redacted pages were classified as protected pursuant to Subsections 63G-2-305(22) (drafts), -305(10)(d) (protecting confidential informants), -305(17) (attorney-client privilege), and 302(1)(b) (medical information on individuals).
On October 2, 2023, the Petitioner appealed the decision over the 11 remaining pages to the Respondent’s chief administrative officer (“CAO”) who failed to respond to the appeal in a timely manner thereby creating a formal denial under Utah Code § 63G-2-401(5)(b)(i).
Petitioner now appeals to the State Records Committee (“Committee”). On February 15, 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 classified and withheld.
STATEMENT OF REASONS FOR DECISION
I. Records Classification
Under GRAMA, “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). Records that are classified as protected under Section 63G-2-305 are not considered public records. Utah Code § 63G-2-201(3)(a). However, even if a record is classified as protected, GRAMA allows this committee the ability to invade the protection and order disclosure. See Utah Code §§ 63G-2-403(11)(b) & 63G-2-406(1).
At the hearing, the Committee moved to review the 11 disputed records in camera, per our authority to do so under Subsection 63G-2-403(9)(a)(ii). From our review, we find the following:
Records labeled #13 & #14 are not drafts that warrant protection. The records are notes taken during interviews in the course of the investigation. As notes, they are public records under Subsection 63G-2-103(25). They must be disclosed.
Records numbered #25 & #26 are not protected under attorney-client privilege because they relate to the Governor’s Office and legal counsel, not the Respondent. To sustain a defense of attorney-client privilege, the Respondent must show “(1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice.” Southern Utah Wilderness Alliance v. Automated Geographic Reference Center, 2008 UT 88, ¶33. The Respondent argues that the attorney-client relationship is established pursuant to Rule 504 of the Utah Rules of Evidence, which states that communications between (i) the client or the client’s representative and (ii) the legal professional can establish attorney-client privilege. Utah R. Evid. 504(b)(2)(A). The Respondent argues that it acted as the legal representative of the Governor’s Office in the course of the investigation and therefore it is subject to the same attorney-client privilege the Governor’s Office enjoys. However, it has produced no evidence showing the representative relationship, such as a representation agreement or other indication that the Governor’s Office intends that DHRM act for and on its behalf. In GRAMA appeals, it is the government’s burden to prove its defense in withholding the records. Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶27 (“[t]he government has the burden to establish that a document falls into one of these nonpublic categories.”) Without evidence showing that a legal representative relationship exists between the Governor’s Office and the Respondent, we cannot find that an attorney-client relationship exists. With no attorney-client relationship, there can be no privilege. Further, even if the documents were privileged between the Governor’s Office and counsel, the fact that DHRM holds them without being the Governor’s legal representative disrupts the confidential requirement of attorney-client privilege. As a result, privilege is lost and these records must be released.
Records numbered #29 & #30 are classified as private under Subsection 63G-2-302(2)(d) because they contain information concerning third parties that if disclosed would constitute an unwarranted invasion of personal privacy.
Records numbered #6 & #19 are classified correctly as drafts and are therefore protected under Subsection 63G-2-305(22).
We find that the remaining records are public records and must be disclosed.
II. The Respondent’s Search Efforts
Petitioner raises the issue that there must be more than 30 records connected to his investigation, especially since he recalls multiple people taking notes during his investigative interviews. He questions the adequacy of the Respondent’s search for records.
When a governmental entity receives a GRAMA request, the law requires that it “conduct a reasonable search for the requested record.” Utah Code § 63G-2-201(7)(b). The burden of proof to show that a reasonable search was performed is a preponderance of evidence. Utah Administrative Code R35-1-3(1)(a).
At the hearing, the Respondent’s records officer was present and testified to the issues. The Committee directly examined the records officer and asked him to describe the search efforts that were taken to retrieve responsive records. He responded to the limited number of records retrieved rather than the actual search efforts and procedures. With the government bearing the burden to show that its search efforts were reasonable, we find that burden was not met here. R35-1-3(1)(a). Without a clear indication of the search procedures, we can’t determine whether the search was reasonable. As a result, we find that the Respondent must conduct a new search for responsive records.
ORDER
THEREFORE, in accordance with this Decision, Petitioner’s appeal is hereby GRANTED in part and Denied in part.
The Respondent shall deliver the records as outlined above but may withhold records #6, #19, #29, and #30.
The Respondent shall conduct a new search for responsive records.
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).
Entered this 26 day of February 2024
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COREY COLEMAN, Petitioner, v.
VERNAL CITY, Respondent,
DECISION AND ORDER
Case No. 24-26
By this appeal, Corey Coleman (“Petitioner”), requests a fee refund from Vernal City (“Respondent”).
FACTS
On October 4, 2023, Petitioner submitted a request to Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, he was requesting that Respondent “provide copy machine records for planning copy machine from May 1, 2019, to May 12, 2019.” This request required technical knowledge in order to access the copy machine records. Alyx Larsen, Information Technology Manager at Vernal City, identified over 400 pages of responsive documents. On October 12, 2023, Respondent, through Roxanne Behunin, City Recorder, informed Petitioner that the copy machine records had been classified as public records; and that the cost for the response was $169. Petitioner sent an email to Respondent agreeing to the charges of $169, but indicated he intended to dispute this fee and seek a fee waiver/appeal. Once the records were printed, the charge was reduced to $94.60. Petitioner appealed to the Respondent’s chief administrative officer who upheld the fee.
Petitioner then appealed to the State Records Committee (“Committee”) and the matter was set for a hearing on December 21, 2023. Before the hearing was held the parties resolved to attempt mediation on February 20, 2024. During mediation, it was discovered that the initial search criteria mistakenly captured documents outside the requested time frame. After refining the search to only the requested dates, the number of relevant pages was reduced to 26 and mediation was ultimately unsuccessful. On March 5, 2024, Ms. Behunin notified Petitioner that due to a correction and reduction in cost, a refund was issued in the amount of $89.40, essentially reducing the fee to $5.20 for the 26 responsive pages. Respondent has withheld the 26 pages subject to the $5.20 fee being paid.
On April 18, 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 fee is reasonable or if it should be waived.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, that right is not entirely unbridled. GRAMA also allows a governmental entity to “charge a reasonable fee to cover the governmental entity’s actual costs of providing a record.” Utah Code § 63G-2-203(1)(a). Where the governmental entity is a political subdivision, those fees must be established “by ordinance or written formal policy adopted by the governing body.” Utah Code § 63G-2-203(3)(c). However, fees are discretionary. The governmental entity “may fulfill a record request without charge and is encouraged to do so” if it determines that the requester is the subject of the record. Utah Code §63G-2-203(4)(b).
At the hearing, Petitioner testified that the reason he requested the copy machine records was to show that his personal employee code was being used to make copies 2 years post-employment, which, to him, is relevant to other proceedings he’s been involved in. Thus, it’s clear that he’s the subject of the records he seeks as they are directly related to him by way of his employee code that was being used to make copies after his employment was terminated.
We find it problematic and concerning that Respondent initially responded to Petitioner’s GRAMA request with over 400 unresponsive documents, charged him a weighty fee for doing so, and it took appeals and mediation efforts for the error to be caught. Once the error was caught, Respondent determined that there were 26 pages of potentially responsive records but then levied a new fee for their release. We find that because of the ordeal Petitioner has gone through just to land at 26 pages of potentially responsive documents, his fee should be waived and the records delivered.
ORDER
THEREFORE, in accordance with this Decision, Respondent shall waive the fee and deliver via certified mail the 26 pages that were delivered to the Committee in preparation for this hearing. Thus, if the $5.40 fee has been paid or is being held as a potential credit from the initial fee, Respondent shall refund it to Petitioner.
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).
Entered this 29 day of April 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
AARON DODD (for Britt Balkcom), Petitioner, v.
SALT LAKE CITY, Respondent,
DECISION AND ORDER
Case No. 24-03
By this appeal, Aaron Dodd (for Britt Balkcom) (“Petitioner”), requests records allegedly held by Salt Lake City (“Respondent”).
FACTS
On April 18, 2023, Petitioner was standing on a sidewalk located adjacent to the Salt Lake City Airport when he was detained by Salt Lake City police officers at the alleged direction of Airport Terminal Services because he appeared homeless. Petitioner alleges that Terminal Services sought to have petitioner charged with trespass and arrested. Police eventually released Petitioner.
On June 23, 2023, Petitioner submitted a request to Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, his request comprised the following:
1. I am hereby requesting all written or digital communications such as [sic] email messages, Microsoft Teams messages, text messages, and all other instant messages or any other type of written or digital communications used by Salt Lake City, both sent and received, for the period beginning July 1, 2022 [sic] through June 23, 2023 [sic] for the following individuals:
Marrisa (Brooke) Orgill
Jordan H. Tatton
2. I am also hereby requesting all written or digital communications such as [sic] email messages, Microsoft Teams messages, text messages, and all other instant messages or any other type of written or digital communications used by Salt Lake City, both sent and received, for the period beginning April 1, 2023 [sic] through June 23, 2023 [sic] for the following individuals:
Heidi Harward
Captain Stefhan Bennet
3. I am also hereby requesting all written or digital communications such as [sic] email messages, Microsoft Teams messages, text messages, and all other instant messages or any other type of written or digital communications used by Salt Lake City, both sent and received, for the period beginning April 1, 2023 [sic] through June 23, 2023 [sic] for the following individuals:
Officer Michael Martinez (N39)
Officer Walter Anaya (44V)
4. Additionally, I am requesting that Salt Lake City produce for the period beginning September 15, 2020 [sic] through June 23, 2023 [sic] any and all available statistical information, documents, reports, police reports, general offense hardcopies, papers, spreadsheets, airport trespass forms, or any other type of document that contains any information relating to any and all individuals that the City has stopped, questioned, warned, sought to remove, trespassed, arrested, or forcefully removed for ‘returning/Refusing [sic] to leave the Airport” Under [sic] the Airport’s Rules and Regulations, specifically Section 1.6, 3.16 or Rule 3.19.
(these requests are hereinafter referred to by number).
In the City-Wide Request, Petitioner sought “any and all available statistical information, documents, reports, police reports, general offense hardcopies, papers, spreadsheets, airport trespass forms, or any other type of document that contains any information relating to any and all individuals that the City has stopped, questioned, warned, sought to remove, trespassed, arrested, or forcefully removed for ‘returning/refusing to leave the Airport’ under the Airport’s Rules and Regulations, specifically Section 1.6, 3.16, or Rule 3.10” from “the entire City of Salt Lake City, not just the Airport Department” between September 15, 2020, through June 23, 2023.
In a response dated June 29, 2023, Respondent denied the request stating that the records request lacked the “reasonable specificity” that GRAMA requires all requestors to provide. Petitioner appealed the denial to the City’s chief administrative officer (“CAO”) on June 30, 2023, who ultimately upheld the denial.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On January 4, 2023, 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 Petitioner’s records request was reasonably specific.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). The governmental entity receiving a request for a public record “shall provide the person with a certified copy of a record if: . . . the person identifies the record with reasonable specificity; . . .” Utah Code § 63G-2-201(6)(b).
This Committee has touched upon the issue of what constitutes “reasonable specificity” in two prior rulings. First, in Richins v. Davis County, Decision and Order 2010-04, Utah State Records Committee (entered Feb. 18, 2010), we said,”[w]hen establishing whether a records request is ‘reasonably specific,’ the Committee reviews the petitioner’s written request and determines whether the request sufficiently describes records which will allow the governmental entity to reasonably find the records containing the requested information.” In that case, we ruled that specific names and titles of records were not necessary since the public may not know how government records are identified. We found that the respondent “knew or should have known from [the requestor’s] record description that he was requesting records regarding [the respondent’s] assessment and market value” of the requestor’s property. Id.
Later, in Redd v. Utah Attorney General’s Office, Decision and Order 2016-08, Utah State Records Committee (entered Feb 23, 2016), we defined “reasonable specificity” as “whether a reasonable person can understand what records are being requested by the requestor.”
From these prior rulings, we see that the Richins rule requires a reasonable description of the records and Redd requires that a reasonable person can understand what is being requested. These two rules are, in essence, the same. With this in mind, we turn to the request.
The request itself is quite broad. For requests 1 – 3, Petitioner stated that he was “requesting all written or digital communications such as,” followed by a list of a few examples. We are mindful that the term “such as” doesn’t create an exhaustive list of definite items. Rather, what follows is a short non-exhaustive list of possible examples. We agree with Respondent that because of this, the specificity in the request is left wanting, at least to a degree.
Because Petitioner did put forth a few examples of the communications he seeks, we find that the request is sufficiently specific as to those items; namely, emails, Microsoft Teams messages, and instant messages. Therefore, to requests 1 – 3, the request was specific enough on requesting those communication mediums.
As to request 4, we find similar concern with some of the broader items in the request. We find that the following items in the request are sufficiently specific and Respondent must provide responsive records: any policies, police reports related to individuals the Respondent has stopped, questioned, warned, sought to remove, trespassed, arrested, or forcefully removed for returning and/or refusing to leave the airport under the airport’s rules and regulations, specifically Section 1.6, 3.16, or 3.19.
Finally, we make clear that this Decision is in relation only to the reasonable specificity of the request. We don’t give any opinion on the substance of the request or Respondent’s handling of it. Therefore, we affirm Respondent’s right to assess a fee pursuant to statute and the rules outline in Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136, 979 P.2d 363.
ORDER
THEREFORE, in accordance with this Decision, the appeal is hereby GRANTED in part and DENIED in part. Respondent shall proceed to process Petitioner’s request on the items outlined above.
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).
Entered this 16 day of January 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JONATHAN BEJARANO, Petitioner, v.
UTAH STATE BOARD OF EDUCATION, Respondent.
DECISION AND ORDER
Case No. 22-11
On February 17, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. See, Bejarano v. Utah. St. Bd. of Edu., State Records Committee Case No. 22-07 (Feb. 28, 2022). The Committee voted to review the disputed records in camera. However, an attachment to one of the e-mail records could not be reviewed by the Committee during the hearing. Accordingly, the Committee voted unanimously to continue the hearing until the next available hearing date in order to allow Respondent to provide the attachment to the Committee for review.
FACTS
On or about September 27, 2021, Mr. Bejarano made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Utah State Board of Education (“USBE”). In his request, Mr. Bejarano, asked for "all e-mails on Board Member Cline's gmail" from August 26, 2021 to September 29, 2021 that include one or more of the keywords "uea, critical race theory, crt, Johnson, Senator, Representative, Christiansen or UPU." USBE denied the request on September 29, 2021, stating "under Utah law, in order for an email to be a record, to which the public has a right of access, the email must be prepared, owned, received, or retained by a government entity. USBE did not prepare the emails in question, nor does the agency own, receive, or retain the emails in questions." The request was denied under Utah Code §63G-2-103(22).
An appeal filed by Mr. Bejarano was received by the Committee on October 19, 2021. On March 17, 2022 after having considered the written materials, oral testimony, and oral arguments of the parties and after reviewing the documents in camera, the Committee 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 § 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. USBE submitted three documents to the Committee for in camera review that were responsive to Mr. Bejarano’s records request. The first document is a copy of an e-mail. The Committee finds that this document is a public record but subject to the following restrictions: (1) The names in the “to” and “from” portion of the e-mail should be redacted because this information is private pursuant to Utah Code § 63G-2-302(1)(n); and (2) The attachment is a protected record pursuant to Utah Code § 63G-2-305(22) because it is a draft. The Committee finds that the second document is a public record. The Committee also finds that the third document including the attachment is a public record, but the names in the “to” and “from” portion of the e-mail should be redacted pursuant to Utah Code § 63G-2-302(1)(n).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jonathan Bejarano, 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 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).
Entered this 28 day of March 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CHAD LAMBOURNE, Petitioner, v.
UTAH HIGHWAY PATROL, Respondent
DECISION AND ORDER
Case No. 22-15
On April 21, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. Prior to the hearing, legal counsel for Respondent, the Utah Highway Patrol, provided responsive records to legal counsel for Petitioner, Chad Lambourne. Respondent’s counsel stated that he believed these records fulfilled Petitioner’s records request. Petitioner’s counsel stated that he needed to have time to review the records in order to determine if the received records were completely responsive to Petitioner’s records request. Both parties requested that the hearing be continued until the next available date in order to determine if there were any issues regarding the records that still needed to be resolved by the Committee.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Chad Lambourne, is hereby CONTINUED until the next available Committee hearing date.
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).
Entered this 2 day of May 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MARK TRACY, Petitioner, v.
EMIGRATION IMPROVEMENT DISTRICT, Respondent.
DECISION AND ORDER
Case No. 22-21
By this appeal, Petitioner, Mark Tracy, seeks access to records allegedly held by Respondent, Emigration Improvement District.
FACTS
On a form dated November 24, 2021, “Mark Christopher Tracy dba EMIGRATION CANYON HOMEOWNERS ASSOCIATION” (“Petitioner”) made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from “Emigration Improvement District c/o Simplifi Company.” Petitioner’s request was for legal invoices and evidence of payment submitted to the “EMIGRATION IMPROVEMENT DISTRICT" (“District”) from the law firm of Cohne Kinghorn P.C., Parson Kinghorn and Harris P.C., and Gerald R. Kinghorn P.C. since August 1, 1998, Petitioner requested that he view or inspect the records only.
In an e-mail dated November 28, 2021, Jeremy Cook, legal counsel for the District, responded to Petitioner’s request stating that the District “will not respond to GRAMA requests that are made c/o Simplifi Company or that include Mrs. Hawkes.” Mr. Cook also stated in the alternative that the records have been classified as protected records pursuant to Utah Code § 63G-2-305(17).
Mr. Tracy filed an appeal with the chief administrative officer for the District on December 3, 2021. Mr. Tracy stated in the appeal that “[w]e have reason to believe that the Simplifi Company, its shareholders, and/or trustees of [the District] may be concealing the misuse of public funds for private profit.” No decision was given by the District’s chief administrative officer which was interpreted to be a denial by Petitioner pursuant to Utah Code § 63G-2-403(1)(b)(ii), resulting in an appeal being filed with the State Records Committee (“Committee”) on January 3, 2022. On June 2, 2022, the Committee held a public hearing where it considered the written and oral arguments of the parties. After careful consideration of the relevant issues to this appeal, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The District denied Petitioner’s records request stating that it would not respond to records requests from Petitioner “that are made c/o Simplifi Company or that include Mrs. Hawkes.” The Committee affirms this denial, but in order to understand the basis for this affirmance, it is necessary to review the complex litigation history involving the parties to the present appeal.
2. Generally 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 subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). However, a record to which access is restricted pursuant to a court rule is not a public record. Utah Code § 63G-2-201(3)(b).
3. On June 10, 2020, Mr. Tracy sent an e-mail to the District’s records officer, Eric Hawkes, which included a records request pursuant to GRAMA. Tracy v. Simplifi Co., Utah 3rd Dist. Case No. 200905074 (Kouris), Feb. 24, 2021 Memorandum Decision and Order, pg. 2 (“Kouris Feb. 24, 2021 Decision). After an appeal to the chief administrative officer of the District was denied, an appeal was filed directly with district court pursuant to Utah Code § 63G-2-402(1)(a)(ii). Id. pg. 3. However, instead of bringing the action against the District, Mr. Tracy named Eric Hawkes, Jennifer Hawkes, and the Simplifi Company as Respondents. Id.
4. After holding a hearing on February 10, 2021, Judge Kouris found that the District was a necessary party to the district court appeal. Kouris Feb. 24, 2021 Decision, pg. 3. Judge Kouris further found that Mr. Tracy “failed to cite any case law to support the position that Respondents are proper or necessary parties to this action” or cite to any provision or language in GRAMA “supporting the position he can sue an individual or private company based on a governmental entity’s alleged failure to respond to a GRAMA request.” Id. Judge Kouris held that Mr. Tracy’s “action was without merit” and “was also not brought in good faith.” Id. pg. 4. Judge Kouris dismissed Mr. Tracy’s appeal and awarded Respondents (Eric Hawkes, Jennifer Hawkes, Simplifi Company) “their reasonable attorney fees against Mr. Tracy.” Id. Pg. 5.
5. Mr. Tracy appealed the district court case and the Utah Court of Appeals entered an Order of Summary Affirmance on January 24, 2022. Tracy v. Simplifi Co., Utah Court of Appeals Case No. 20210227-CA. Mr. Tracy filed a petition for a writ of certiorari with the Utah Supreme Court regarding the Utah Court of Appeals Decision. On May 9, 2022, the Utah Supreme Court denied Mr. Tracy’s petition. Tracy v. Simplifi Co., Utah Supreme Court No. 20220219-SC.
6. On August 12, 2021, the Committee held a hearing regarding Mr. Tracy’s February 11, 2021 records request to the District. See, Tracy v. Emigration Improvement Dist., State Records Committee Case No. 21-45 (Aug. 23, 2021). The District argued that based upon the Kouris Feb. 24, 2021 decision, it was not required to respond to Mr. Tracy’s records request because he had not paid the attorney fees as ordered by Judge Kouris, relying upon Utah Code § 63G-2-203(8)(a) (“A governmental entity may require payment of past fees and future estimated fees before beginning to process a request if…the requester has not paid fees from previous requests.”
7. The Committee held in Case No. 21-45 that since the fees associated with the Kouris Feb. 24, 2021 Decision “did not require Mr. Tracy to pay the District any fees”, the Committee found that the District could not rely upon Utah Code § 63G-2-203(8)(a)(ii) as a basis to deny Mr. Tracy access to records. State Records Committee Case No. 21-45, ¶¶ 5 & 6.
8. The District filed an appeal of the Committee’s decision in Case No. 21-45 to district court. See, Emigration Improvement Dist. v. Tracy, Utah 3rd Dist. Case No. 210905044 (Judge Scott). In a decision dated May 4, 2022, Judge Scott granted the District’s Motion to for Summary Judgment holding that the District was not required to respond to Mr. Tracy’s records request based upon the holding of Judge Kouris in a Second Order and Decision dated April 15, 2021 (“Kouris Apr. 15, 2021 Decision). Judge Scott wrote that she “declines to overrule the Second Kouris Order” upholding the determination that the District was “not required” to respond to a records request from Mr. Tracy that included Eric Hawkes, Jennifer Hawkes, or the Simplifi Company. Judge Scott further stated:
Indeed, if Mr. Tracy believes that Judge Kouris incorrectly ruled that Simplifi and the Hawkes should not be included in any GRAMA request to [the District] and/or that [the District] does not have to respond to any GRAMA request that includes them, then Mr. Tracy’s avenue for redress is to appeal the First Kouris Order and/or the Second Kouris Order and/or any of Judge Kouris’ other rulings. [Emigration Improvement Dist. v. Tracy, May 4, 2022 Decision pg. 5]
9. When presented with the above district court decisions, the Committee is constrained to follow the precedent set by these courts. A review of Petitioner’s Nov. 24, 2021 records request shows that it was made to “Emigration Improvement District c/o Simplifi Company.” Accordingly, the Committee follows the determination by Judge Scott in her May 4, 2022 Decision, that the District was not required to respond to Petitioner’s records request because it included the Simplifi Company.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Tracy, is hereby DENIED.
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).
Entered this 13 day of June 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KEVIN CALL (for Andrew Figorski), Petitioner, v
UTAH DEPARTMENT OF HEALTH and HUMAN SERVICES, DIVISION OF CHILD and FAMILY SERVICES, Respondent,
DECISION AND ORDER
Case No. 24-24
By this appeal, Kevin Call, on behalf of Andrew Figorski (“Petitioner”), requests records allegedly held by the Utah Department of Health and Human Services, Division of Child and Family Services (“Respondent”).
FACTS
On September 8, 2023, on behalf of his client, Mr. Figorski, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, he requested all documents (activity records, child and family team notes, interview notes, photographs, etc.) related to Case No. 3033485.1. Mr. Figorski is the subject of the records. On October 4, 2023, the Respondent responded to the request providing an “Agreement and Waiver” form for the records. The form requires the requester to sign and agree to its terms, which, in the main paragraph includes this provision: “I recognize that Utah law does not require the Division of Child and Family Services to release the records I have requested.” With the form, Respondent stated the following in its response, “[…] If you chose not to sign the form,I am unable to release the records Pursuant to Utah Code Ann § 80-2-1005.”
Because Mr. Figorski refused to sign the DCFS Agreement and Waiver form, the Respondent denied his request. On October 19, 2023, Petitioner filed a formal appeal of the denial to the Respondent’s chief administrative officer (“CAO”), arguing the statute cited didn’t provide that an Agreement and Waiver form has to be signed before receiving requested GRAMA documents.
On November 7, 2023,the CAO determined that DCFS “is not required to release Child Abuse and Neglect report as indicated by the use of the word ‘may’ versus the word ‘shall’ in the statute that governs access to such reports (80-2-1005(1)).” The CAO acknowledged that this statute does not require such a waiver form as used by DFCS, but stated the statute also does not prohibit it. The CAO determined that the form is “not overly burdensome, unreasonable, or punitive and the information the recipient agrees that DCFS may withhold or redact is information that is already restricted or prohibited by the above statutes or other GRAMA provisions.” With that said, the CAO consented that upon Petitioner signing the Agreement and Waiver, the Respondent would release the records subject to certain information being redacted pursuant to both the Juvenile Code’s requirements and GRAMA’s policies which guard against the unwarranted invasion of personal privacy and information constituting attorney-client privilege.
On April 18, 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 the propriety of the Agreement and Waiver form as a precondition to records access and whether the records must be disclosed.
STATEMENT OF REASONS FOR DECISION
I. The Agreement and Waiver Form
This Committee is charged by the legislature to “hear appeals from determinations of access under Section 63G-2-403.” Utah Code § 63G-2-502(1)(a). Pursuant to Subsection 63G-2-403(11)(a), we are to issue a signed order that either “(i) grant[s] the relief sought in whole or in part” or upholds the denial or access. Utah Code § 63G-2-403(11)(a)(i). Thus, if a requester encounters barriers to records access via the governmental entity’s processes or procedures, it falls on us to hear the appeal concerning the access dispute and either grant the relief sought or uphold the denial.
Nothing in either GRAMA or the Juvenile Code requires that the Agreement and Waiver form be signed before Respondent will fill a public record request. But to the Respondent’s point, nothing in either Code section prohibits it. The Respondent created the form and instituted the practice of using it many years ago because, the Respondent argues, the statutes governing its records are inherently contradictory and that by satisfying one records access statute it necessarily violates the other. For instance, according to Subsection 80-2-1005(3), the Respondent may redact only “the names, addresses, and telephone numbers of individuals or specific information that could: (a) identify the referent; (b) impede a criminal investigation; or (c) endanger an individual’s safety.” Utah Code § 80-2-1005(3)(a)-(c). But, under GRAMA, there are additional protective policies that warrant redaction, such as the unwarranted invasion of personal privacy (Subsection 63G-2-302(2)(d)) and information protected by the attorney-client privilege (Subsection 63G-2-305(17)). So, the argument goes, if the Respondent redacts attorney-client privilege information, it runs afoul of Subsection 1005(3)’s mandate limiting redactions to only the information it outlines. On the other hand, if it strictly adheres to 1005(3)’s requirements, it must then divulge privileged or other private or protected information. Because of this conundrum the Respondent created the Agreement and Waiver form. The intention was that a requester would agree to waive claims when redactions were needed to satisfy both statutes.
Petitioner’s concern with the form is the opening line of the main paragraph which expressly acknowledges that a requester is not entitled to the requested records. Petitioner argues that this language effectively creates a waiver of rights to records and allows Respondent full and unequivocal discretion on whether it will release the requested records. According to Petitioner, by signing the form, Mr. Figorski relinquishes the right to challenge access denials and redactions on responsive records. We agree with this concern.
Though the intent of the form was well-meaning, the language is overly broad considering GRAMA’s prescription that “[a] governmental entity shall provide a person with a certified copy of a record if: (a) the person requesting the record has a right to inspect it; (b) the person identifies the record with reasonable specificity; and (c) the person pays the lawful fees.” Utah Code § 63G-2-201(6)(a)-(c) (emphasis added). While it’s true that some of Respondent’s records are governed by the Juvenile Code rather than GRAMA, we note that in some instances, GRAMA may still control those records depending on the records and circumstances. See Utah Code § 63G-2-107(1)(a)-(b). As a result, we find that the form reaches too far in creating a general waiver of rights to records mandated by law to be released. Additionally, as we’re about to discuss infra, we also find that it’s not just GRAMA that mandates disclosure. The Juvenile Code also requires disclosure of certain records. Thus, pursuant to both statutes, the Respondent should reexamine the waiver language in its form.
II. The Records
Under GRAMA, “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, where a record is governed by another statute, access to the record is then governed by that statute; but if the governing statute is not inconsistent with GRAMA, then GRAMA may still apply. Utah Code § 63G-2-107(1)(a)-(b).
The records at issue here are governed by the Juvenile Code. Subsection 80-2-1005(1) states: “Except as otherwise provided . . ., a report made under Part 6, Child Abuse and Neglect Reports, and any other information in the possession of the division obtained as a result of the report is a private, protected, or controlled record under [GRAMA], and may only be made available to: . . .” The statute then enumerates fifteen different persons or entities to whom the record may be made available. Among those listed is “the subject of the report, the natural parents of the child, and the guardian ad litem.” Utah Code § 80-2-1005(1)(e).
While there’s no debate as to whether Mr. Figorski is the subject of the records, the Respondent argues that words “may only be made available to” creates a permissive allowance to disclose records as opposed to a mandatory requirement and denotes unilateral discretion in choosing to do so. According to the Respondent, if the legislature wanted to mandate disclosure, the statute would read,“shall only be made available to.” On the other hand, Petitioner argues that the words “may only” don’t create a permissive discretion but instead are intended to limit who Respondent may disclose the records to—namely, the persons and entities listed. We agree with Petitioner’s reading of the statute. We find that the word “only” is indicative that the statute does not create a permissive ability to disclose records, but instead limits who may be granted access to the records. If the statute granted full permissive discretion to the Respondent on disclosing records, government transparency and records laws applied to these types of records would be entirely undermined and requesters, such as parents, rightfully seeking records would be at the whims of the Respondent.
III. Conclusion
Because we find that the statute is limiting rather than permissive, we find it necessary for the Respondent to reexamine its Agreement and Waiver form and revise the language. While there may be some merit in the concern of the Respondent being caught between two contradictory statutes, we believe the form could be better written to apprise the requester of the issue without requiring he waive his rights to records in general or his right to challenge access denials and restrictions.
GRAMA still applies where there’s no conflict between the statutes and permits redactions of privacy information and others protected by Subsection 63G-2-202(1). GRAMA also applies in its prohibition of records shared with the agency. Utah Code § 63G-2-204(2). With that said, we reviewed the records in camera and find that the redactions are proper and may remain upon disclosure.
ORDER
THEREFORE, in accordance with this Decision, Petitioner’s appeal is hereby GRANTED. The Respondent shall disclose the records to Petitioner and may do so with the current redactions in place. Further, the Respondent shall reevaluate its form and reform the process to access so that requesters are not waiving general rights to records or the right to challenge access denials.
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).
Entered this 29 day of April 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
VERNAL CITY, Respondent,
DECISION AND ORDER
Case No. 24-31
By this appeal, Petitioner, Brady Eames, requests a fee waiver for records held by Respondent, Vernal City. [1]
FACTS
In October 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested to inspect the Vernal City biannual Deposit & Investment Report for the period ending June 30, 2023. This report details the management and investment of public funds by Vernal City in the Public Treasurers Investment Fund (PTIF). On November 2, 2023, the designated records officer for Vernal City, informed Petitioner of a $3 fee as required by Vernal City’s records request policy. The policy mandates a nominal fee to cover the administrative costs associated with records management and retrieval. In the same correspondence, the records officer provided the requested records.
On November 18, 2023, Petitioner submitted an expedited appeal to Vernal City’s Chief Administrative Officer (CAO) requesting a waiver of the $3 fee. The appeal was filed under the assertion that similar requests had been fulfilled previously without a fee and argued that the public nature of the information warranted a fee waiver. The CAO denied Mr. Eames’ fee waiver.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On May 9, 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 petitioner. 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 fee waiver denial was reasonable.
STATEMENT OF REASONS FOR DECISION
Under Utah Code § 63G-2-203, a governmental entity may charge a reasonable fee under certain circumstances to produce public records. Subsection 203(3)(c) requires that political subdivisions adopt a fee schedule by ordinance or formal policy for filling public record requests. But prior to processing a record request “sound public policy requires an agency . . . to inform the requestor that fees will be assessed and, if so desired, allow the requestor to modify or withdraw the request based on this information.” Graham v. Davis County Solid Waste Mgmt. and Energy Recovery Special Service Dist., 1999 UT App 136, ¶27. And, in any event, a governmental entity may not charge a fee for the first fifteen minutes it takes to fill the request. Utah Code § 63G-2-203(5)(b)(iii).
While it may be true that Respondent has a fee schedule for public record requests established in its formal policies, the problem we see is Respondent’s procedure. Not only does the law establish the public policy of informing a requestor of the fee prior to filling the request and affording him the opportunity to modify or withdraw the request, but Petitioner specifically stated in his request that if he was going to be charged a fee, that he be informed of the fee before Respondent moved forward with processing, searching, compiling, and delivery of the record. When the records officer informed Petitioner of the $3.00 fee, she also attached the responsive record. This was contrary to what the law requires and permits.
Respondent argues in its written statement that Subsection 203(4) grants it the permission discretion to deny a fee waiver and move forward with the assessed fee. But this is not persuasive. Indeed, Subsection 203(4) does allow for a governmental entity’s autonomy in granting or denying a fee waiver, but autonomy must be exercised in its proper order. A governmental entity may not ignore the requirements laid out in Graham, provide the records, and deny the fee waiver request. The correct approach to a public record request is to first inform the requestor that there will be an assessed fee, allow the requestor the opportunity to withdraw or modify the request, exercise discretion on the fee waiver in response to whether the request is modified, and then move forward processing and filling the request upon the consent of the requestor.
Equally problematic with Respondent’s position is how readily available the Deposit and Investment Report is. Utah Code § 57-7-15(3)(c) requires the public treasurer to make copies of such reports readily available to the public. Thus, if Respondent chooses to fill Petitioner’s request, they may easily obtain a copy by downloading the report from the treasurer’s website. This feat can be done in less than 15 minutes, which does not permit a fee.
Therefore, we conclude that due to Respondent providing the records without first allowing Petitioner the opportunity to modify or withdraw his request, and because the requested records could easily be obtained in less than 15 minutes and no fee could be charged as a matter of law, we find that the fee was improper and must be waived.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED. Respondent shall waive the assessed fee on this request.
It is so ordered.
Entered this 20 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Cornwall, M., Williams, K., Buchanan, M., and Dubovik, N. voted in favor of and joined in this Decision and Order.
1. Respondent did not attend the hearing but informed the Committee’s executive secretary that it would submit on its written statement and allow the hearing to proceed. The Committee asked Petitioner how he would like to proceed and he elected to move forward with the hearing. The Committee voted unanimously to allow the hearing to take place.
",Granted,2024-05-20T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WILLIAM CARLESS, Petitioner, v.
PROVO CITY POLICE, Respondent,
DECISION AND ORDER
Case No. 24-25
By this appeal, William Carless, for USA Today, (“Petitioner”), requests records allegedly held by Provo City Police (“Respondent”).
FACTS
On September 6, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested copies of: “any investigative files pertaining to investigations of Craig Deleeuw Robertson; any and all bodycam footage from the incident at Robertson’s home on August 9, 2023.” Respondent issued a partial denial on September 11, 2023, and withheld the records, classifying them as protected under Utah Code § 63G-2-305(10).
Petitioner filed an appeal of the denial to the Provo City Records Appeal Board on October 20, 2023. The Board upheld the denial.
Petitioner appealed the Board’s decision to the State Records Committee (“Committee”). On April 18, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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 properly classified as protected under Section 63G-2-305 is not a public record. Utah Code § 63G-2-201(3)(a). Pursuant to Section 305, a record is protected if it is “created or maintained for civil, criminal, or administrative enforcement purposes,” and releasing the records “reasonably could be expected to interfere with investigations undertaken for enforcement . . . purposes.” Utah Code § 63G-2-305(10)(a).
According to Respondent, the requested records pertain to a current and ongoing investigation, and the Utah County Sheriff’s Office and Respondent have both indicated that releasing the records could reasonably be expected to interfere with the investigation. A significant fact at issue here is that the subject of the records, Mr. Robertson, is deceased. To Petitioner, this means that releasing the records couldn’t interfere with any investigation. But Respondent pointed out in its decision letter that just because Mr. Robertson is deceased doesn’t necessarily mean the investigation ceases, nor does it mean that the investigation cannot be interfered with.
We take a moment to note that while we normally may weigh the interests to determine if disclosure is warranted (See Utah Code § 63G-2-403(11)(b)), when records are properly classified as protected under Subsection 305(10), the law doesn’t allow us to weigh the interests. Instead, Section 406 governs this case, and it requires that we look to actual evidence supplied by the petitioner to determine if it preponderates that the interests favoring disclosure are at least equal to the interests favoring restriction. Utah Code § 63G-2-406(1). Here, we conclude that the evidence doesn’t satisfy Section 406.
Consequently, we find that the records are properly classified and may be withheld. However, the records should be released to Petitioner as soon as the investigation is completed.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
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).
Entered this 29 day of April 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
THE OFFICE OF THE UTAH ATTORNEY GENERAL, Respondent.
DECISION AND ORDER
Case No. 22-58
By this appeal, Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by the Office of the Utah Attorney General (“Respondent”).
FACTS
On March 22, 2022, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking records connected to the Respondent’s “compliance with Utah Procurement Code,” and the Respondent’s own policy regarding procurements in relation to it retaining the Ray Quinney Nebeker law firm (“RQN”) to represent it in any matter involving Petitioner. The records requested were to include all of the following:
1. Text messages;
2. Emails;
3. Memoranda between Respondent and QRN;
4. Requests for proposals (and responses to the requests) made by the Respondent for legal representation, as mandated by the Utah Procurement Code; and
5. Documentation of former Solicitor General, Tyler Green’s, written disclosure of a relationship with RQN representative, Beth Ranschau.
In its response, dated April 13, 2022, the Respondent granted the request in part and denied in part. The Respondent informed Petitioner that his records request was not reasonably specific, but despite the lack of specificity, it provided 49 pages of records it believed were responsive to the request. However, within those 49 pages, some information was redacted under Utah Code § 63G-2-305(17) [attorney-client privilege]; 63G-2-305(18) [attorney work product]’; and 63G-2-305(23)(b) [strategy about pending litigation]. In relation to all other records, the Respondent informed Petitioner that after a reasonable search no such records were found.
Petitioner appealed the response to the Respondent’s chief administrative officer (“CAO”) arguing the Respondent’s search efforts were not reasonable, that his request was reasonably specific, and challenging the redactions.
The CAO affirmed the Respondent’s decision on all counts, determining that the request for records “of [the Respondent’s] compliance with” the Utah Procurement Code lacked specificity because such a determination would require legal analysis – something a records custodian cannot be expected to do. The CAO also determined that the Respondent had performed a reasonable search for responsive records, and that the redactions were proper.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 15, 2022, 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.
STATEMENT OF REASONS FOR DECISION
A. The Reasonableness of Respondent’s Search
The GRAMA states 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). While the GRAMA requires that an individual identify the records he seeks with “reasonable specificity,” it does not set a clear standard for the governmental entity on how to conduct its search. Utah Code § 63G-2-201(7)(b). When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance. See e.g., Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations).
Under the FOIA, when a governmental entity receives a records request, its search must be reasonable with the reviewing court looking at the entity’s process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The issue we must review is not whether remaining records may exist, but whether the entity’s search efforts were adequate. Weisberg, at 1351. If the search is challenged by the records requester, the governmental entity then bears the burden of showing that the search was reasonable. See Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir.1990). And “reasonableness” is dependent on the circumstances in the case. Weisberg, at 1351. If it’s determined that the governmental entity performed a reasonably adequate search, our Utah Administrative Rules then require the requester to provide sufficient evidence that additional records exist and are in the entity’s possession. Utah Administrative Rule R35-2(2).
Although Petitioner received some records, he did not receive others. He argues that the Respondent’s inability to locate and retrieve responsive records is symptomatic of a larger systemic records management problem. Petitioner cites to his current petition for judicial review in an unrelated case where the Respondent’s record management and search adequacy was an issue (Amann v. Utah Attorney General’s Office and Utah State Records Committee, No. 170903997 (3rd Dist. Ct.)). Whether or not Petitioner’s claims have merit, we find them immaterial to our review. Our analysis is not on Respondent’s record management system, but its search efforts within whatever system it has.
The records Petitioner seeks relate to the Respondent’s procurement of an outside law firm to represent it in litigation. The Respondent’s records counsel, Lonny Pehrson, presented to the Committee that due to certain provisions in the Utah Procurement Code and the Respondent’s operational policies, the Respondent was able to retain the law firm without engaging in a standard procurement process under Utah Code § 63G-6a et. seq. As a result, Mr. Pehrson presented that no standard procurement records such as a request for proposals and associated bids exist. Notwithstanding the non-standard procurement process, Mr. Pehrson presented that he still searched for responsive records in multiple ways. For instance, he approached personnel who were involved in the underlying matter and requested responsive records that those individuals had in their custody, if any. Additionally, he asked those individuals whether they had any text message communications with others that would be responsive to Petitioner’s request. These efforts produced the 49 pages that the Respondent delivered to Petitioner. Given the nature of the request, and the non-standard procurement process, we find Mr. Pehrson’s search efforts were reasonable.
With the Respondent satisfying its burden of showing that its search was reasonable, the burden shifts to Petitioner to show that disputed records do in fact exist. The Utah Administrative Rules states,
In any appeal to the Committee of a governmental entity’s denial of access to records for the reason that the record is not maintained by the governmental entity, the petitioner shall provide sufficient evidence in the petitioner’s statement of facts, reasons, and legal authority in support of the appeal, that the record was maintained by the governmental entity at one time, or that the governmental entity has concealed, or has not sufficiently or has improperly searched for the record.
Utah Administrative Rule R35-2(2).
Petitioner relies on other unrelated cases involving the Respondent as evidence that the Respondent has not conducted a reasonable search. Again, without direct evidence, we are not persuaded that such cases naturally equate to this one. Such evidence is circumstantial at best and creates the illogical conclusion that because the Respondent failed to perform a reasonable search in a different case, it must have failed to perform a reasonable search in this one as well. We find that Petitioner has not satisfied his burden to show that additional responsive records exist and are in the possession of the Respondent.
B. Respondent’s Redactions
In finding that the Respondent’s search for responsive records was reasonable, we now turn our attention to the 49 records it did find and disclose to Petitioner. Within those documents, the Respondent made a number of redactions, classifying the redacted information as protected under Sections 63G-2-305(17) [attorney-client privilege]; -305(18) [attorney work product]’; and -305(23)(b) [strategy about pending litigation]. Petitioner challenges the redactions.
To define privilege, and understand the attorney work product, we look to Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88. In that case, Southern Utah Wilderness Alliance sought records from Automated Geographic Reference Center which withheld responsive records on the grounds that they were protected under the GRAMA due to attorney-client privilege. Id. ¶9. On appeal, the Utah Supreme Court explained that the mere existence of an attorney-client relationship does not necessarily make all communications between the two confidential. Id. ¶33 (citing Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990). To establish privilege, “a party must establish (1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice.” Id. ¶33. Accordingly, whether Respondent has, in this instance, properly classified the responsive documents as “protected” will depend on whether these three elements are present.
Per our authority under Section 63G-2-403(9)(a)(i)-(ii), the Committee examined the unredacted documents in camera to determine the propriety of the redactions. After careful review, the Committee finds that the documents showed and were between an attorney and client, confidential information was being exchanged, and legal advice was present. The Committee further finds that the redactions covered the attorney’s work product and strategy for pending litigation. Thus, we conclude that the Respondent had properly classified the redactions as “protected” under Subsections 305(17), (18), and (23)(b).
Further, the Committee finds that the interests favoring lifting the redactions does not outweigh the Respondent’s attorney-client privilege, accompanying work product, nor litigation strategy, especially where the information is directly connected to ongoing litigation Petitioner has with the Respondent. While attorney-client privilege and its ancillary protections are difficult enough to pierce, Petitioner, as a current litigious opponent to the Respondent, has a heightened burden of proof to convince us that the interests of disclosure outweigh those of restriction. This he has not done.
ORDER
THEREFORE, because of the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 27th day of December 2022.
BY THE STATE RECORDS COMMITTEE
_________________________________________
NANCY DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JARED KUMMER, Petitioner, v.
SEVIER SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 24-48
By this appeal, Jared Kummer (“Petitioner”), requests records allegedly held by Sevier School District (“Respondent”).
FACTS
On October 16, 2023, the Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested numerous records seeking more information about Respondent’s investigation and response to his November 22, 2022, grievances about the P.E. classes at South Sevier Middle School (“SSMS”). The records manager for the District responded on October 26, 2023, indicating that due to the volume of the request the District needs additional time under Utah Code Ann. § 63G-2-204(6) to compile and review all of the records.
Petitioner immediately issued an appeal to the Chief Administrative Officer (“CAO”) on October 26, 2023, but also provided a new less voluminous request. Because of the revised request, the District did not acknowledge the appeal and considered the revisions as a new request. Then, on November 7, 2023, the District provided some records and denied access to other records. Petitioner submitted an appeal for the denial of access to records to Respondent’s CAO. On December 6, 2023, the CAO upheld the record manager’s decision.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. Specifically, the disputed records requested by Petitioner that are now before the Committee are the sent and received emails from August 1, 2018, through October 13, 2023, that contain a number of keywords, employee names, and phrases. 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, records that are properly classified as private, controlled, or protected are not public records. Utah Code § 63G-2-201(3)(a). Speaking to education records as defined in the Family Educational Rights and Privacy Act (“FERPA”), GRAMA states that disclosure of such records is governed by FERPA.
FERPA defines “education records” as those records that are “(1) directly related to a student; and (2) maintained by an educational agency or institution. . . .” 34 C.F.R. § 99.3. 20 U.S.C. § 1232g(a)(4)(A). Whether a record relates directly to a student is not necessarily a matter of the student’s academic performance. See U.S. v. Miami Univ., 294 F.3d 797 (finding that non-academic student disciplinary records were “education records” subject to FERPA); see also Id. at 812 (“Notably, Congress made no content-based judgments with regard to its ‘education records’ definition.”). All that’s required to meet the definition is that the information in the record be “directly related to a student.” Eastern Area School Dist. v. Miller, 191 A.3d 75, 81 (Pa.Cmwlth, 2018).
At the hearing, the Committee reviewed the records in camera. Upon doing so, we observed that the batch of emails at issue—130 in total—contain various correspondences either between or concerning various SMSS employees, parents, students, and even the Kummers. We find that the vast majority directly relate to individual students and, therefore, are governed by FERPA, which we cannot order their disclosure. Other records can and should be released. Emails not directly relating to a specific student are not governed by FERPA, but by GRAMA instead. Accordingly, we find that Respondent must release those records not governed by FERPA nor protected by GRAMA. For instance, mass emails are public because they are generalized messages sent to entire groups of individuals, including students. Documents Bate Numbered as 127 – 129 were related specifically to the Kummers and should be provided, with exception, however, to that portion of Bate Number 127 wherein school officials emailed their attorney. See Utah Code § 63G-2-305(17) (protecting records that are subject to attorney-client privilege). Additionally, we find that Bates Number 130 is an employee record pursuant to Utah Code § 63G-2-302(2)(a) and isn’t responsive to the request.
ORDER
THEREFORE, Petitioner’s appeal is hereby GRANTED in part and DENIED in part. Respondent shall deliver those records that are not subject to FERPA or GRAMA protections in accordance with this Decision.
It is so ordered.
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., Chair Pro Tem, Williams, K., Buchanan, M., Peterson, L. voted in favor of and joined in this Decision and Order.
Committee members Biehler, E. and Dubovik, N. were not present at the initial hearing on May 9, 2023, and accordingly voted to abstain.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SHAUN LUCAS, Petitioner, v.
UTAH STATE TAX COMMISSION, Respondent,
DECISION AND ORDER
Case No. 24-33
By this appeal, Shaun Lucas (“Petitioner”), requests records allegedly held by Utah State Tax Commission (“Respondent”).
FACTS
On September 1, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of the real property tax surveys and comparable sales data from the Multiple Listing Services (“MLS”) that the Respondent used to prepare its assessment/sales ratio studies for 2021, 2022, and 2023. The Respondent denied the request on September 13, 2023, based on the protected nature of the records and confidential nature of the MLS data. The Respondent classified the sales questionnaire as protected under Subsections 63G-2-305(10) and (15). As for the MLS sales data, the records were withheld pursuant to Utah Code § 63G-2-305(2).”
On October 12, 2023, Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”) Scott Smith. The CAO affirmed the September 13, 2023, denial of the records request. Petitioner then appealed the CAO’s decision to the State Records Committee (“Committee”).
On May 9, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under Utah law, “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). But a record that is protected under Section 63G-2-305 is not a public record. Utah Code § 63G-2-201(3)(a). “Only a record specified in . . . Section 63G-2-305 may be classified . . . protected.” Utah Code § 63G-2-305(4). With respect to records relating to government procedures and processes, GRAMA protects the following:
(10) records created or maintained for . . . administrative enforcement purposes or audit purposes, if release of the records:
(b) reasonably could be expected to interfere with audit, . . . or enforcement proceedings.
Utah Code § 63G-2-305(10)(b). And, for records relating to data a private company provides to a governmental entity, the following records are protected:
(1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret has provided the governmental entity with the information specified in Section 63G-2-309.
Utah Code § 63G-2-305(1). Also,
(2) commercial information or nonindividual financial information obtained from a person if:
(a) disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future;
(b) the person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and
(c) the person submitting the information has provided the governmental entity with the information specified in Section 63G-2-309.
Utah Code § 63G-2-305(2)(a)-(c).
Here, we find that the records relating to the Respondent’s internal processes that pertain to how it conducts its property tax analysis, assessments, and proceedings are rightfully protected.
Regarding MLS data, the information the MLS supplies to the Respondent is proprietary. The MLS’s entire business model centers on gathering and housing real estate market data. Its members (real estate agents across Utah) pay monthly fees to access and input this data. Where no other companies are structured in this manner, we find that the data does consist of protectable trade secrets and commercial information. Therefore, because the MLS submitted a business confidentiality claim when it entered into a contract with the Respondent to supply the subject data, the information Petitioner seeks is protected as long as the business confidentiality claim comports with Section 63G-2-309.
Section 309 provides that:
(1)(a)(i) Any person who provides to a governmental entity a record that the person believes should be protected under Subsection 63G-2-305(1) or (2) or both Subsections 63G-2-305(1) and (2) shall provide with the record:
(A) a written claim of business confidentiality; and
(B) a concise statement of reasons supporting the claim of business confidentiality.
Utah Code § 63G-2-309(1)(a)(i)(A)-(B).
The record reflects that the MLS submitted a written claim of business confidentiality when it entered into the Respondent’s contract to use its information. The confidentiality claim sets forth the reasons for the claim, thus satisfying Section 309. Accordingly, we find that the requested MLS data is properly classified and withheld.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 20 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Cornwall, M., Williams, K., and Buchanan, M. voted in favor of and joined in this Decision and Order.
Committee member and Dubovik, N. abstained.
enclosed: Right of 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 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).
",Denied,2024-05-20T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANNA AND BRYAN BAGGALEY, Petitioners, v.
GRANITE SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 23-09
This matter comes again before the State Records Committee (“Committee”) after it was continued under our Decision and Order No. 23-05. Although the facts have not changed from how they are recited in that prior Decision and Order, we take the opportunity to give a brief recounting of the factual and procedural background that lead to the parties being before us once more.
FACTS
On April 21, 2022, Petitioners submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking records pertaining to Granger High School’s decision to remove Petitioner, Anna Baggaley, from her 2nd period US Government Class. Understanding the request to pertain more to records concerning the school’s investigation behind Anna’s removal from class, the Respondent denied the request on the grounds that responsive documents could not be released in the midst of a pending investigation.
After unsuccessfully appealing their request to the Respondent’s chief administrative officer, Petitioners found their way before the Committee on January 19, 2023. At that hearing, Petitioners provided a list of specific records they believed should be or were in the Respondent’s possession but not disclosed. To this, Mr. Horsley, in-house counsel for the Respondent, stated that it was the first time he had seen such a list of specifically requested records – that the language of Petitioner’s original GRAMA request was broadly directed to records related to an actual investigation and discrimination claims. Counsel for the Respondent took time during the hearing to address each specific record and his knowledge of whether it was disclosed. He concluded that, to his knowledge, some of the listed records had been disclosed, some could not be disclosed due to their status or classification under the GRAMA, some likely existed and could be disclosed, and some did not exist at all. From counsel’s claims, we found it appropriate that the Respondent be given an adequate opportunity to thoroughly review the list of specific records and then deliver any remaining responsive records. We ordered a continuance to grant the Respondent time to review, retrieve, and disclose any additional responsive records. Baggaley v. Granite School District, No. 23-05, Utah State Records Committee (2023).
Prior to the Committee reconvening this matter, the Respondent granted Petitioners access to 349 responsive documents via a One Drive link. However, Petitioners informed the Respondent they wanted the records in a different media. To this, the Respondent uploaded the 349 records to a physical thumb drive and delivered it to Petitioners, who stated many documents and links to documents were inaccessible or broken..
On February 16, 2023, the Committee reconvened this appeal to resolve Petitioners’ remaining grievances. 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.
STATEMENT OF REASONS FOR DECISION
Petitioners claim that within the batch of records delivered, some records are inaccessible, as well as still outstanding. In turn, the Respondent, through its counsel, maintains that it has fully cooperated with Petitioners, delivered all responsive records in its possession and in accessible fashion, and that any outstanding records simply don’t exist. Therefore, the issue we are faced with is whether the Respondent’s efforts to produce responsive records are adequate under the GRAMA.
The GRAMA states 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). While the GRAMA requires that an individual identify the records he seeks with “reasonable specificity,” it does not set a clear standard for the governmental entity on how to conduct its search. Utah Code § 63G-2-201(7)(b). When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance. See e.g., Deseret news Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations).
Under the FOIA, when a governmental entity receives a records request, its search must be reasonable with the reviewing court looking at the entity’s process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The issue we must review is not whether remaining records may exist, but whether the entity’s search efforts were adequate. Weisberg, at 1351. If the search is challenged by the records requester, the governmental entity then bears the burden of showing that the search was reasonable. See Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir.1990). And “reasonableness” is dependent on the circumstances in the case. Weisberg, at 1351. If it’s determined that the governmental entity performed a reasonably adequate search, our Utah Administrative Rules then require the requester to provide sufficient evidence that additional records exist and are in the entity’s possession. Utah Administrative Rule R35-2(2).
Petitioners argue that the Respondent’s efforts to satisfy their request have been insufficient and fall below the GRAMA’s requirements. They testified that while they did receive records from the list they exchanged with the Respondent at the January 16, 2023 hearing (see Baggaley v. Granite School District, No. 23-05, Utah State Records Committee (2023)), some of those records were inaccessible through the shared drive the Respondent used to grant them access, and that other records are still missing.
The Respondent testified and showed to the Committee that it made multiple attempts to retrieve and deliver all responsive records from the January 16 list, and that all responsive records it had were uploaded to the shared and thumb drives and delivered to Petitioners. The Respondent maintains that any documents on the list that were not included in the delivery are non-existent.
We find that the Respondent’s search efforts have been reasonable, and that it has sought to cooperate with Petitioners and satisfy their requests. With that said, we understand Petitioners’ sentiment that because many electronic documents and links to others were not immediately accessible the Respondent has not cooperated in good faith. However, we see no evidence to support the notion that the Respondent is being uncooperative or is otherwise acting in bad faith. We acknowledge that in the last two hearings, the Respondent’s counsel has offered and extended invitations to personally meet with and assist Petitioners to ensure their request was satisfied. If Petitioners’ choose to decline those offers, regardless of how valid their frustration and lack of trust in the Respondent may or may not be, we don’t see this as a rational basis to penalize the Respondent for its search efforts and delivery.
Clearly, the Respondent has records that are for whatever reason currently inaccessible to Petitioners. During the hearing, counsel for the Respondent offered to print off the 349 records and make them available in hard copy format for Petitioners. But, beyond this, Petitioners’ have produced no evidence to show that other outstanding documents exist, remain in the Respondent’s possession, and are being withheld. Thus, in conjunction with its efforts to retrieve responsive records, the Respondent’s offer to ensure that petitioners receive the records they seek is satisfactory under the GRAMA and to the Committee. And while our decision satisfies the GRAMA request before us, we remind Petitioners that as they review the records they receive, if they see a need to seek additional documents from the Respondent, they may of course do so.
ORDER
THEREFORE, for the foregoing reasons, the Committee hereby ORDERS the following:
Because the Respondent has conducted a reasonable search for responsive records, and because Petitioners have produced no evidence of existent records other than those they cannot immediately access, the Respondent has satisfied its duties under the law. Notwithstanding the Respondent fulfilling those duties, it shall ensure access and delivery of the 349 responsive documents that it has already attempted to deliver to Petitioners and shall do so within two weeks of the date of this order.
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).
Entered this 28 day of February 2023
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
IAN COOPERSTEIN, Petitioner, v
UNIVERSITY OF UTAH, Respondent,
AMENDED DECISION AND ORDER
Case No. 24-12
This appeal between Ian Cooperstein (“Petitioner”) and the University of Utah (“Respondent”) was originally decided on July 20, 2023. We issued an order in that case on August 1, 2023. However, pursuant to Cooperstein v. University of Utah, Decision and Order no. 24-13, Utah State Records Committee (entered February 26, 2024), we issue this Amended Decision and Order.
FACTS
On August 2, 2020, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested “all communication between Mary Bohlig, director of CRS, and Diane Dahlman that relate to me that were communicated through University accounts from 2008-2019.” The Respondent located some potentially responsive records but denied the request citing Utah Code §63G-2-103(25)(b)(i) claiming that the communications did not meet the definition of “records” for the following reasons:
Petitioner appealed the decision to Respondent’s Chief Administrative Officer (CAO), Todd Samuelson, who upheld the denial on February 28, 2023. The CAO didn’t discuss whether the communications could be classified as private or protected. Instead, he focused on the communications not meeting the definition of “record” under the GRAMA. Additionally, he informed Petitioner,
[p]lease note the University’s Acceptable Use Policy Rule 4-004A(III)(2): ‘The University allows Users to make reasonable and limited personal use of its IT Resources, Information Systems, and Electronic Resources to the extent that such use does not interfere with University Duties.’ It would appear that the communications Ms. Bohlig exchanged with Ms. Dahlmann were personal in nature and permissible under University policy.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On July 20, 2023, 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
We must determine whether the sought after communications are records, whether they warrant a protective classification, and whether they must be disclosed.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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). In defining a record, the Code makes clear that “a personal note or personal communication prepared or received by an employee or officer of a governmental entity” “in a capacity other than” their employment or official capacity is not a “record.” Utah Code § 63G-2-103(25)(b)(i)(A). Further, a record that is private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5). When analyzing whether a governmental entity has correctly determined the nature of a record and its classification, this Committee has the authority to view the records in camera and review the information unredacted. Utah Code § 63G-2-403(9)(a)(ii).
1. The Communications are Records Under the GRAMA
At the hearing, pursuant to its authority to review records in camera, the Committee moved to view the unredacted contract in camera to aid it in its analysis. Upon review, we determine that the communications are records and subject to the GRAMA’s provisions. To determine that a personal communication is not a record, the Code requires three elements be present:
1. The communication must be personal in nature;
2. The communication must be prepared by or received by a governmental employee or officer; and
3. Either the communication are made in a non-official capacity or it is unrelated to the public’s business.
Utah Code § 63G-2-103(25)(b)(i)(A)-(B).
Importantly, under the structure of Subsection (25)(b)(i), each of the three elements must be present to satisfy the statute and declare that the communication is not a record under the GRAMA. Accordingly, we look to each.
The communications were either prepared or received by a governmental employee, Mary Bohlig, the Director of Campus Recreation Services for the Respondent during the timeframe of Petitioner’s requested communications. Thus, we look to the personal nature and substance of the communications.
When looking at whether a communication is personal, we look at its substance rather than the other party to the communication. For instance, in Tanner v. Utah State University, Utah State Records Committee, Decision and Order No. 23-08 (Feb. 28, 2023), we determined that emails sent from a government email account to certain family members were not records under the GRAMA because the substance was personal in nature about the sender’s plans after her resignation. Those plans had nothing to do with the public’s business and were clearly personal in nature. Thus, our line of decisions illustrate that whether a document is a “personal communication” does not turn on the device or account used nor the recipient, but is based on the totality of the communication in light of Subsection 25(b)(i) with scrutiny on the subject matter being conveyed.
Here, Petitioner requested only the communications that related to him. In reviewing the records in camera, we found that the subject matter of all the records we received did relate in one way or another to Petitioner. We do not read Petitioner’s request as seeking only the records that reference him specifically, but more generally relate to him and his overarching grievance with the Respondent concerning his past employment. Because of that, we find the communications were not personal in nature. As a result, of the record not being personal, the communications fail the statutory test Subsection 103(25)(b)(i) outlines to be excluded from the definition of “record.”
2. The Records Warrant a Protective Classification
Satisfied that the communications are records, we look at whether they should be classified as either private or protected under the Code. The GRAMA classifies as private “records concerning a current or former employee of . . . a governmental entity, including performance evaluations and personal status information. . . .” Utah Code § 63G-2-302(2)(a). As Petitioner is a former employee of the Respondent, the sought after communications do concern him. Accordingly, we find that the records are classified as private under the Code.
3. The Records Must be Disclosed to Petitioner
The GRAMA requires that a private record be disclosed to a requester under certain conditions. Pertinent here is the condition that the requester is the subject of the record. Utah Code § 63G-2-202(1)(a)(i). As discussed above, the request was specific for communications between Mary Bohlig and Dianne Dahlman that concern Petitioner. From our review of the communications, we find that Petitioner is the subject of the records. Accordingly, the Respondent must disclose the record to him.
However, in our review of the records, we also find that the records do contain some information that, if revealed, would constitute an unwarranted invasion of personal privacy with respect to third-parties. See Utah Code § 63G-2-302(2)(d). As a result, this information may be redacted before disclosure. Utah Code § 63G-2-308.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED. The Respondent is hereby ordered to disclose the responsive records to Petitioner and may redact information in accordance with this Decision before doing so.
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).
Entered this 26 day of February 2024.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL DUDOV, Petitioner, v.
HURRICANE POLICE DEPARTMENT, Respondent,
DECISION AND ORDER
Case No. 24-52
By this appeal, Paul Dudov (“Petitioner”), requests records allegedly held by the Hurricane Police Department (“Respondent”).
FACTS
On December 22, 2023, Petitioner went into Hurricane Police Department and made a public record request pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, he asked for records concerning a particular incident, to which he received a copy of the police report. Later, on February 13, 2024, he filed a new GRAMA request for the police body cam footage related to the same incident, but the Respondent denied the request under Utah Code § 63G-2-305(10).
Petitioner appealed the record request denial to the Respondent’s chief administrative officer (“CAO”) who reviewed the appeal and the responsive videos with the city attorney. It was ultimately determined that the body camera footage could be released to Petitioner in redacted form, and on July 2, 2024, the CAO contacted Petitioner to advise him of the redactions and provide instructions on how to download the video. However, a few days later, Petitioner expressed concern about possible missing footage, but, after conducting an internal review, the CAO informed him that all footage of the interaction had been provided.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On July 18, 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 Respondent performed a reasonable search for the requested records.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). When a governmental entity receives a public record request, the law requires it to perform a reasonable search for the requested record. Utah Code § 63G-2-201(7)(b). In an appeal concerning a search issue, the government must show by a preponderance of the evidence that its search efforts were reasonable. Utah Administrative Rule R35-1-3(1)(a). Upon successfully meeting that standard, the burden then shifts to the requester to show by a preponderance of the evidence that the search efforts were not reasonable. Utah Administrative Rule R35-1-3(1)(b).
At the hearing, the Respondent explained that its officers’ body cameras are only activated to record in two instances: (1) upon emergency lights being activated; and (2) when the officer manually turns on the camera. Since the officers involved in Petitioner’s case were not responding to an emergency, their body cameras were not automatically activated. The Respondent further testified that it searched its database for remaining footage by date, by officer, and by tag and those search efforts turned up nothing. It also testified that once body cam footage is uploaded into the database, the footage cannot be deleted. Thus, according to the Respondent, if no footage can be found, it’s because the footage was never created.
When the Committee questioned Petitioner on why he believes additional footage exists, he conceded that he doesn’t know for sure, but that he “doesn’t buy it.” Unfortunately, we cannot order a new search based on suspicion alone. The Respondent performed search efforts that, in conjunction with a database that doesn’t allow footage to be deleted, are adequate for what the law requires. Accordingly, we find that the Respondent’s search was reasonable and its duty to respond to Petitioner’s request is thus satisfied.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 30 day of July 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., Chair pro tem, Williams, K., Biehler, E., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
UTAH DEPARTMENT OF NATURAL RESOURCES, Respondent,
DECISION AND ORDER
Case No. 24-60
By this appeal, Adam Herbets (“Petitioner”), requests a fee waiver and records allegedly held by Utah Department of Natural Resources (“DNR”) (“Respondent”).
FACTS
On May 23, 2024, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested:
1. Copies of all Utah Division of Wildlife Resources (“DWR”) law enforcement incident reports in which illegal activity is detected but no interaction with the public is involved from July 1, 2023, through present day.
2. Copies of all records listing DNR performance goals, requiring or encouraging an employee to document a certain number of violations within a particular period of time.
Claiming that the information was public, Petitioner also requested an expedited response and a waiver of any fees that might be assessed in filling the request.
On May 31, 2024, the Respondent issued a letter notifying Petitioner that it could not immediately approve or deny the request because “the request is potentially voluminous, requires review of a large number of records requires legal review to determine proper record classification, and may require extensive editing to segregate records the requester is entitled to inspect from those the requester is not entitled to inspect.” The letter also denied the Petitioner’s request for a fee waiver. The letter stated that the requested incident reports would take 200 hours to review and redact any personal information contained in the responsive documents, which at $25/hour would require a fee totaling $5,000. The letter also addressed Petitioner’s second request for law enforcement officer performance plans and informed him of their “private” classification under Utah Code Ann. § 63G-2-302(2)(a). Regardless, the Respondent provided Petitioner with a redacted version of a performance plan, noting that it would be costly to compile and redact every performance plan, and as all performance plans follow the same template, redacted versions would all look relatively the same as the copy provided.
Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”) on June 5, 2024. The CAO issued an order upholding the denial of Petitioner’s request for a fee waiver associated with the requested incident reports and upheld the “private” classification for the requested performance plans.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On August 15, 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 are properly classified and withheld and the assessed fee is proper.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, when the governmental entity “compiles a record in a form other than that normally maintained” by the entity, it may charge a reasonable fee for the cost of staff time “for search, retrieval, and other direct administrative costs for complying with a request.” Utah Code § 63G-2-203(2)(a)(ii). When reviewing whether a record must be compiled in a form other than how it is normally maintained in order to fill the request, the burden is on the governmental entity to make that showing. Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist.,1999 UT App 136, ¶28. And when a governmental entity does make such a showing, the question left to be answered is whether the decision to deny the fee waiver was reasonable. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52.
At the hearing, the Respondent provided a sample of potentially responsive records. We reviewed the sample in camera and found that the records were all in the same format. They all contained basic informational input fields that one would expect in any law enforcement incident report, such as name of the person involved in the incident, the date, the responding officer, location, and other general information about the incident. Also, the reports contained a large text box for the responding officer’s notes about the incident and response. The text boxes held typed information in narrative form and could be quite long or relatively short depending on the incident.
The Respondent testified that its database is not equipped to search through the narrative text blocks to find certain words and phrases that would be relevant to Petitioner’s request. As a result, the Respondent’s staff would have to manually read through each report, of which there is approximately 1800, and then make possible redactions. After reviewing the sample of records ourselves, we see the burden that such a task presents. Without a filtering tool in the database, the work the Respondent purports would be required to fill Petitioner’s request does not seem to be misrepresentative or exaggerated. Accordingly, on this point, we find that the decision to deny the fee waiver request was reasonable.
As for the records concerning performance goals, we find through in camera review that the information in those records is properly classified as private under Subsection 63G-2-302(2)(a), which classifies records as private if they concern a current or former employee of a governmental entity. Accordingly, the records were properly withheld.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 26 day of August 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., chair pro tem, Williams, K., Biehler, E., Buchanan, M., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
IAN COOPERSTEIN, Petitioner, v.
THE UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 23-13
By this appeal, Ian Cooperstein (“Petitioner”), requests records allegedly held by the University of Utah (“Respondent”) and challenges the propriety of the fee charged to fulfill the request.
FACTS
On November 16, 2020, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the “job posting materials” for a job posting that Petitioner claims was labeled “Personal Training Supervisor” and was posted from August 2015 until July 2019. In his request, Petitioner informed the Respondent that at some point, the position title changed to “Personal Training Lead” and asked that the Respondent search its records for those materials if needed. This job posting was for a position that Petitioner applied for when he was employed by the Respondent in a different position. Petitioner was awarded the new role before his employment was later terminated.
On November 8, 2022, the Respondent replied to Petitioner’s GRAMA request, informing him that it had performed a thorough search of its files from August 2015 through July 2019 and was unable to locate any responsive records for a position title of “Personal Training Supervisor,” “Personal Training Lead,” or any other similar title. Additionally, the Respondent charged Petitioner a fee of $48.85 for its search efforts and processing his request.
On November 18, 2022, Petitioner appealed this response to the Respondent’s chief administrative officer, Todd Samuelson. Mr. Samuelson responded approximately two weeks later affirming the Respondent’s decision. His response stated that “the University has thoroughly searched records both at Human Resources and Campus Recreation services. There are no records of a job posting for a position with these titles or any similar titles during the relevant time period.” In regard to the fee the Respondent charged Petitioner for processing his request and searching for records, Mr. Samuelson stated, “In response to your request regarding appeal of the fees ($48.85) for request fulfillment, we find the University has applied §63G-2-203(2)(ii) appropriately. The University of Utah is authorized to charge a reasonable fee to cover the actual costs associated with a records request, including such costs as staff time.”
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On March 16, 2022, 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
1. Whether the Respondent conducted a reasonable search for the requested records.
2. Whether the Respondent’s decision to deny a fee waiver was reasonable under the circumstances.
STATEMENT OF REASONS FOR DECISION
1. The Respondent Conducted a Reasonable Search for the Requested Records
The GRAMA states 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). While the GRAMA requires that an individual identify the records he seeks with “reasonable specificity,” it does not set a clear standard for the governmental entity on how to conduct its search. Utah Code § 63G-2-201(7)(b). When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance. See e.g., Deseret news Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations).
Under the FOIA, when a governmental entity receives a records request, its search must be reasonable with the reviewing court looking at the entity’s process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The issue we must review is not whether remaining records may exist, but whether the entity’s search efforts were adequate. Weisberg, at 1351. If the search is challenged by the records requester, the governmental entity then bears the burden of showing that the search was reasonable. See Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir.1990). And “reasonableness” is dependent on the circumstances in the case. Weisberg, at 1351. If it’s determined that the governmental entity performed a reasonably adequate search, our Utah Administrative Rules then require the requester to provide sufficient evidence that additional records exist and are in the entity’s possession. Utah Administrative Rule R35-2(2).
For Petitioner’s request, the Respondent’s associate human resources (“HR”) director worked with colleagues to identify all benefitted and non-benefitted job postings listed by Campus Recreation Services within the applicable time period. The director and her colleagues were unable to find any job postings entitled “Personal Training Supervisor,” Personal Training Lead,” or any other similar title. The director also worked with HR to understand Petitioner’s employment history. In doing so, she found that the job code Petitioner was originally hired into never changed. This led the Respondent to conclude that the new position Petitioner applied for and received did not require a separate job posting. The Respondent ultimately determined that no responsive records existed.
Based on the testimony and materials presented to the Committee, we are satisfied that the Respondent’s search efforts were reasonable. As a result, the burden shifts to Petitioner to show that responsive records do in fact exist. To meet his burden, Petitioner relies on the Respondent’s own internal policies regarding job postings to show that if the job announcement was never posted, the Respondent may have violated its own policies. However, despite its policies for publishing job announcements, there could be any number of reasons why the Respondent doesn’t possess any responsive records. Petitioner’s mere reliance on policies to prove the existence of records is not strong enough to convince us that the Respondent possesses the records. Therefore, because Petitioner has offered no direct evidence to show that the Respondent has the requested records in its possession, we find that the Respondent conducted a reasonable search and satisfied its duty under the GRAMA.
2. The Respondent’s Fee Waiver Denial was Unreasonable
Under certain conditions, a governmental entity may charge a reasonable fee to cover the entity’s “actual cost” of providing a record. Utah Code § 63G-2-203(1)(a). The GRAMA provides that “actual costs” may, among other things, include the cost of staff time for search, retrieval, and other administrative costs. Utah Code § 63G-2-203(2)(a)(i)-(ii).
The Respondent argues that Subsections 203(1)-(2) allow it to charge a fee to Petitioner despite the fact that it could produce no responsive records. It bases its argument on Subsection 203(2)(a)(ii) which states that staff time in searching and retrieving the records, as well as other direct administrative costs incurred for complying with a request constitute actual costs which may be reasonably passed on. Utah Code § 63G-2-203(2)(a)(ii) However, the Respondent misinterprets the statute.
Subsections 203(1)-(2)(a) don’t grant an unchecked permission to charge a fee to a requester merely because there was staff time spent on a search. Subsection 203(1) is unambiguous in stating that “a government entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.” Utah Code § 63G-2-203(1)(a) (emphasis added). In turn, Subsection 203(a) states that a governmental entity can charge for the actual costs of providing the record only when the entity “compiles a record in a form other than that normally maintained by the governmental entity . . .” Utah Code § 63G-2-203(2)(a) (emphasis added.) Read together, the statutes are quite clear: a governmental entity may charge a reasonable fee to cover the actual costs the entity incurs only when it compiles the records in a form it normally doesn’t and then provides the compiled records to the requester.
Here, not only did the Respondent not provide records to Petitioner, but it also didn’t compile the records in a form outside of the Respondent’s regular record keeping maintenance. Even if the Respondent was able to provide records, it would carry the burden of showing how and why such routine job announcement records had to be compiled in a format foreign to its routine record keeping procedures in order to fulfill Petitioner’s request. Therefore, because the Respondent did not compile and provide the requested records in an irregular format, its decision to charge Petitioner a fee for its staff’s time and then deny Petitioner’s request for a fee waiver was unreasonable.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED in part and GRANTED in part according to the following:
1. The Respondent has performed a reasonable search for responsive records and therefore satisfied its duty under the law.
2. The Respondent’s fee waiver denial is unreasonable. Respondent shall grant Petitioner’s fee waiver request.
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).
Entered this 27 day of March 2023.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SHANA KUMMER, Petitioner, vs
SEVIER COUNTY SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 23-36
By this appeal Shana Kummer (“Petitioner”), requests records allegedly held by Sevier County School District (“Respondent”).
FACTS
On November 21, 2022, A.K., the daughter of Shana and Jared Kummer, attended her 6th grade physical education (P.E.) class at South Sevier Middle School. Allegedly, at some point prior to the class, a sign in the boys’ locker room was vandalized. As a result, the P.E. teacher dedicated the November 21st class as “endurance day” as a form of punishment for the vandalism. The teacher required the kids perform significant continued physical cardiovascular and calisthenic activity for the class period—activity that entailed wind-sprints across the gymnasium and pushups after each sprint. After returning home, A.K. complained of chest and muscle pain; A.K. also experienced restricted arm movements for nearly a week. Believing the physical activity to be unreasonably excessive, the Kummers raised concerns about the endurance day with the school and district administration on November 22, 2022, asking that the matter be investigated.
Superintendent Cade Douglas assigned Assistant Superintendent Michael Willes and Student Services Director Nolan Anderson to work with Principal Michelle Nielson to investigate the concerns. On December 2, 2022, the Kummers were notified by mail that the investigation had been completed and that appropriate action had been taken. After that notification, the Kummers requested various types of information relating to the P.E. program and asked for a copy of the video.
The request for the video was denied because the District IT Director believed that redacting the students’ faces from the video to protect their identities would damage the record. However, Mr. Willis informed the Kummers that although the Family Education Rights and Privacy Act (“FERPA”) protected the privacy of the students shown in the video, he could give a description of the footage, which he did, focusing his description particularly on A.K. He concluded by noting that the amount of exercise being required from the students was excessive given their age and he also confirmed that corrective action was being taken, including removal of these types of events (“endurance day”) from P.E. classes. Notwithstanding the description, arrangements were ultimately made for the Kummers to view the video on March 14, 2023.
After viewing the video, Petitioner filed a formal records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”) on March 16, 2023, requesting a copy of the footage. That request was denied on March 21, 2023, on the grounds that the video was not a public record under the GRAMA.
Petitioner appealed the decision to Chad Lloyd, Respondent’s Chief Administrative Officer (“CAO”). In her appeal Petitioner complained that the initial denial did not comply with the requirement in Utah Code § 63G-2-205(2)(b)—that the denial cite to the GRAMA provisions that justify denial of the request. Mr. Lloyd responded to the appeal by expressly identifying Utah Code § 63G-2-107(2) [1] as the basis for the denial and noting that under this provision the record is not subject to the GRAMA.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On August 17, 2023, 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
We must determine whether the surveillance video footage is protected by FERPA or whether it may be disclosed under GRAMA.
STATEMENT OF REASONS FOR DECISION
1. FERPA Controls the Records to the Extent there is no Conflict with GRAMA.
GRAMA states 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, if a record’s access is restricted pursuant to a statute outside of GRAMA, then it is not a public record. Utah Code § 63G-2-201(3)(b). If access to a record is governed or limited by another statute, then access to the record is governed by the specific provisions of that statute. Utah Code § 63G-2-107(1)(a). However, “while the other statute’s provisions will control in the event of an irreconcilable conflict, GRAMA’s provisions will still apply so long as they are not inconsistent with the other statute.” Southern Wilderness Alliance v. Automated Geographic Reference Center, 2008 UT 88, ¶17 (quoting Utah Dep’t of Pub. Safety v. Robot Aided Mfg. Ctr., Inc., 2005 UT App 199. ¶11 (internal quotation marks omitted).
FERPA is a federal law intended to “protect [parents’ and students’] rights to privacy by limiting the transferability of their records without their consent. United States v. Miami Univ., 294 F.3d 797, 806 (6th Cir. 2002). So long as an educational institution does not have a policy or practice of releasing education records without the consent of the students or their parents, Congress will continue to allocate funds to those institutions that comply with FERPA. See 20 U.S.C. § 1232g(b)(1). FERPA defines an “education record” as “those records, files, documents, and other materials which . . . contain information directly related to a student” and are “maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232(g)(a)(4)(A).
One question in determining whether FERPA governs a record is whether the record pertains to a student’s academic performance. This issue has been addressed by different courts, but courts have found that FERPA holds no such requirement [2]. Therefore, when an educational institution maintains the record, the question to examine is not whether the record relates to the student’s academia in any way, but if the information in the record directly relates to the student. 20 U.S.C. § 1232(g)(a)(4)(A).
Records directly relate to a student if “the matters addressed in the . . . records pertain to actions committed or allegedly committed by or against” the student and contain information identifying the student. U.S. v. Miami Univ., 91 F.Supp.2d 1132, 1149 (S.D.Ohio 2000), affirmed, 294 F.3d 797 (6th Cir.2002). Notably, if the record is directly related to the teacher and only “tangentially related” to the student, FERPA does not apply. Easton Area School Dist. v. Miller, 191 A.3d 75, 82 (Pa.Cmwlth 2018). Therefore, if video footage directly relates to the student, as opposed to the teacher, and the student is personally identifiable, then FERPA will apply regardless of the academic setting of the video.
At the hearing, the Committee moved to view the video recording in camera pursuant to Utah Code § 63G-2-403(9)(a)(ii) (granting the Committee authority to view records in camera). While the footage showed the P.E. teacher in the center of the gymnasium instructing the students, we ultimately believe that the video footage was more related to the students than the teacher. Further, we found the video footage clear enough that students could be personally identified. Because the students were not tangentially related to the teacher’s conduct, and because they could be personally identified, we find that the video directly relates to the students and therefore constitutes an “education record” under FERPA.
2. Notwithstanding FERPA’s Governance, the GRAMA Still Applies
Although FERPA applies to the video and seemingly restricts disclosure, Petitioner argues that our Utah case law provides that, so long as FERPA is satisfied and there is no conflict with our state law, the GRAMA can still control releasing the video. Petitioner points us to Bryner v. Canyons School Dist. 2015 UT App 131 as support for that proposition.
In that case, a GRAMA request sought surveillance footage of an altercation between two students. The issue was the same one we have in front of us here: Namely, is FERPA an absolute bar to record disclosure of education records? In holding that the trial court was correct in ordering the video be redacted and disclosed, the Court ruled that “GRAMA’s provisions will still apply so long as they are not inconsistent with FERPA.” Id., ¶29 (quoting Southern Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶17-21 (editorializing “FERPA” to the original quotation)). That is, because FERPA does not address redacting an education record, then there is no conflict with GRAMA allowing redactions over the protected information before disclosure. See Utah Code § 63G-2-308(1)-(2). Consequently, the Bryner Court upheld the trial court’s decision that the school district redact the students’ faces in the video to comply with FERPA and then disclose the footage.
The Respondent argues that Bryner is not controlling because it does not create a general requirement to disclose the video, nor does it supersede federal law to create an affirmative requirement to provide a copy of the video. To support its position, the Respondent points to guidance issued by the Student Privacy Policy Office of the U.S. Dept. of Education (“SPPO”) which was released after the Bryner case was handed down. Additionally, the Respondent goes so far as to argue, essentially, that Bryner was incorrect in its ruling—that GRAMA cannot compel disclosure of education records governed by FERPA and that the Bryner Court “did not consider the effect or application of the more specific GRAMA section 63G-2-107(2)(c), which expressly states without qualification that the disclosure of a FERPA record is governed by FERPA (and thus not by GRAMA).” Resp’t’s Statement of Facts at 8.
However, we don’t agree. Upon reviewing Bryner, we find the issue before the Court was identical to the one before us, and therefore, the case is applicable and illustrative for us to follow. In essence, the Bryner Court upheld the trial court’s logic in holding that (1) the video footage at issue in the case was governed by FERPA; (2) GRAMA doesn’t conflict with FERPA in redacting the footage; (3) the school district had to redact the identities of the students in the video; (4) the district had to provide a copy a of the redacted video to the requester; and (5) the requester had to pay for the redactions. We see no reason why the same logic cannot be applied to this case.
2.a. The GRAMA/FERPA Conflict
In determining that FERPA applies to the video record at issue, and that, under both Bryner and Southern Utah Wilderness Alliance, GRAMA might also still apply, we defer to Bryner’s own explanation in navigating the GRAMA/FERPA conflict:
GRAMA governs the procedure for requesting government records unless the statute or regulation governing disclosure of the record conflicts with GRAMA. Thus, while FERPA’s specific provisions will control in the event of an irreconcilable conflict, GRAMA’s provisions will still apply so long as they are not inconsistent with FERPA. While FERPA defines education records and provides guidelines for disclosure of such records, FERPA does not directly address whether education records may be redacted or whether a fee may be charged for such redaction. We therefore conclude that GRAMA’s provisions regarding redaction and fees apply to Bryner’s request.
Bryner at ¶29 (internal citations, quotation marks, and editorials omitted).
In other words, the Court ruled that because FERPA doesn’t address disclosure of redacted records, GRAMA’s provisions allowing redactions don’t conflict with the federal law, and where there’s no conflict, GRAMA may still apply. Therefore, if FERPA-related information is redacted, then the law is satisfied and GRAMA can allow disclosure of the redacted record. Since Bryner remains good law in this state, we are bound to follow it.
Turning to the SPPO’s guidance that came out since Bryner was decided, the guidance states:
When a video is an education record of multiple students, in general, FERPA requires the educational agency or institution to allow, upon request, an individual parent of a student (or the student if the student is an eligible student) to whom the video directly relates to inspect and review, or be informed of the content of the video, consistent with the FERPA statutory provisions in 20 U.S.C. § 1232g(a)(1)(A) and regulatory provisions at 34 CFR § 99.12(a). FERPA generally does not require the educational agency or institution to release copies of the video to the parent or eligible student.
U.S. Dept. of Education FAQs on Photos and Videos under FERPA, ¶3.
We don’t find the SPPO guidance convincing for two reasons. First, the guidance is not law; it is guidance for educational institutions—guidance that the Respondent followed in providing a description of the video to the Kummers and then allowing them to view the footage. Second, the guidance states that “FERPA generally does not require” releasing video or photos. This is not the same as being prohibited from releasing them. Therefore, because the guidance is neither law nor bars disclosure, we don’t see how the SPPO’s guidance conflicts with Bryner’s conclusion that disclosure may occur so long as the FERPA protected information is redacted.
Finally, we don’t read Bryner the same way that the Respondent does. The trial court did in fact order the disclosure of the video within 10 days of redactions being completed so long as Bryner paid for the redactions. The Court of Appeals upheld that decision. Thus, we disagree with the Respondent’s assertion that Bryner doesn’t support the notion that redacted FERPA records can be subject to a disclosure order. To the contrary, we read Bryner to fully comport with the law as it neatly balances without contradiction the sensitive interests FERPA seeks to protect with the GRAMA’s “strong presumption in favor of public disclosure.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶55.
2.b. Fees for Redactions
When a governmental entity must provide requested records in a form other than how it normally maintains the records, the entity may charge a reasonable fee for the cost of manipulating and tailoring the record so that it’s suitable for delivery. Utah Code § 63G-2-203(1)-(2)(a)(ii). In this case, the video footage is not normally maintained in redacted form. Redacting the identities of the students in the video will be an added cost to the Respondent to make delivering the video compliant with FERPA and GRAMA.
At the hearing, Petitioner expressed that she was willing to pay the cost of redacting the video. Accordingly, we find that a reasonable fee for the redactions is warranted.
ORDER
THEREFORE, it is hereby ordered that Petitioner’s appeal is GRANTED. The Respondent is ordered to redact only the identities of the students, except for A.K., and provide a copy of the redacted video to Petitioner. The Respondent may charge Petitioner a reasonable fee to cover the costs of redaction.
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).
Entered this 28 day of August 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
1. “Except as provided in Subsection (3), this chapter does not apply to a record containing protected health information as defined in 45 C.F.R., Part 164, Standards for Privacy of Individually Identifiable Health Information, if the record is:
(c) The disclosure of an education record as defined in the Family Educational Rights and Privacy Act, 34 C.F.R. Part 99, that is controlled or maintained by a governmental entity shall be governed by the Family Educational Rights and Privacy Act, 34 C.F.R. Part 99.” Utah Code § 63G-2-107(2)(c).
2. See e.g., State ex rel. ESPN v. Ohio State Univ., 132 Ohio St. 32, 212 (2012) (holding that records of NCAA investigation into student-athletes were education records even though they were not academic in nature); U.S. v. Miami Univ., 294 F.3d 797 (6th Cir.2002) (finding that non-academic student disciplinary records were “education records” subject to FERPA); Easton Area School Dist. v. Miller, 191 A.3d 75, 81 (Pa.Cmwlth, 2018) (“The statute does not require an educational record to be related to a student’s academic performance, but it does require the information to be ‘directly related to a student.’”); Bryner v. Canyons School Dist. 2015 UT App 131, ¶20 (“Notably, Congress made no content-based judgments with regard to its ‘education records’ definition.”) (quoting Miami Univ., 294 F.3d at 812.)
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JARED KUMMER, Petitioner, v.
SEVIER COUNTY SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 23-64
By this appeal Jared Kummer (“Petitioner”), requests records allegedly held by Sevier County School District (“Respondent”).
FACTS
In November, 2023, the State Records Committee (“Committee”) heard and decided Kummer v. Sevier County School District, Decision and Order 23-59, Utah State Records Committee (entered Nov. 28, 2023) (hereinafter “Kummer II”)[1]. In that case, we bifurcated the matter, granting the appeal with respect to one particular record and then continuing the appeal for all remaining records due to technology problems that prohibited us from reviewing those records in camera. We now revisit and resume that review. Naturally, because this matter was bifurcated, the facts here are identical to those in Kummer II. Consequently, we give only a brief recounting of the facts as necessary for the records we now examine.
On November 21, 2022, A.K., Petitioner’s daughter, had to participate in an “endurance day” during her physical education (“P.E.”) class. For the duration of the class, the instructor required the kids perform continued physical exertion exercises that accumulated to hundreds of push ups and scores of wind sprints across the gym. The activity resulted in A.K. incurring chest and muscle pain to the point where the range of motion for her arms was significantly limited.
On May 28, 2023, Petitioner filed a records request with Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner made 12 requests relating to the P.E. classes at South Sevier Middle School (“SSMS”) and investigation into endurance day activities. Those requests were as follows:
1. Records of all allegations or complaints from students, parents, teachers, or district employees related to the P.E. event or any other SSMS P.E. related complaint for the past 6 years;
2. All related incident reports for the past 6 years, including related to the 11/21/22 event;
3. All student and teacher witness related statements/reports created from the school and district investigations;
4. A copy of Principal Michelle Nielson’s communications with the teacher and students, all other records generated by Principal Nielson, as well as reports by students about what happened the day before the P.E. class;
5. All interview transcripts, audio recordings, and summaries of teachers, employees, and external persons interviewed as part of the school and district investigations, and all witness statements for the district investigation, including students, district employees and external persons;
6. All collected evidence including photos, videos, digital communications, and other relevant materials for both investigations;
7. All investigation reports, including the final investigation reports for both the school and the district investigations, including the summary of all findings, conclusions, and recommendations;
8. All meeting minutes and audio/video records associated with both investigations, including both open and closed meetings, as well as meetings that involved the Sevier School Board;
9. All disciplinary records created because of the school investigation and/or district investigation, including disciplinary notices/warnings, suspension letters, corrective action plans, or any other documentation outlining consequences imposed upon the teacher as a result of misconduct, any corrective action for SSMS in general, and all disciplinary action records for Eric Baker since the date of his hire to the present related to any matter;
10. All records of communication (i.e., text messaged, emails, social media messages (Facebook Messenger), notes, reports, and other written statements) associated with the P.E. department investigations and its aftermath, including records created by or provided to any of the following: Michelle Nielson, Cade Douglas, Michael Willies, Nolan Anderson, Kycen Winn, Kimberly Keisel, Eric Baker, Christopher Nielson, arson Christensen, Chad Lloyd, John Foster, Ryan Savage, Jack Hansen, Dixie, Rasmussen, and Richard Orr from 11/21/22 through the present;
11. The name of the lawyer and the agency/firm that has worked with the District related to the investigation and its aftermath; and
12. A copy of all records (prepared statements, emails, other written documents) created but not previously provided to the Kummers relating to the transparency request, including a copy of all communication records created by/received by board members (Jon Foster, Ryan Savage, Jack Hansen, Dixie Rasmussen, and Richard Orr).
The records manager for Respondent responded to the request by providing many records, denying requests that were not records under GRAMA, denying requests of private and protected records, and redacting several records that were partially private or protected. Petitioner appealed the decision to the Chief Administrative Officer (“CAO”). In a written decision, the CAO provided some additional records he deemed subject to public disclosure and denied the appeal for the remaining requests.
Petitioner then appealed to this Committee, which decided in Kummer II to order the gymnasium surveillance video footage be released to Petitioner in redacted form for the same reasoning we put forth in Kummer I. The Committee then continued the hearing on all other record requests. On December 21, 2023, the Committee resumed that hearing during which the parties were allowed to participate. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
ISSUES FOR REVIEW
We are asked to review whether the withheld records are properly classified and restricted under GRAMA.
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). A record that is classified as private, controlled, 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 inspect and information that the government is entitled to restrict, the government may redact the restricted information. Utah Code § 63G-2-308(1)-(2). To ascertain whether the governmental entity correctly classified records as private, controlled, or protected, the law grants this committee the authority to review the disputed records in camera. Utah Code § 63G-2-403(9)(a)(ii).
At the hearing, the Committee moved to review the records in camera. The records at issue consist of 77 documents. From our review, we now arrive at our decision.
A. Records 1-9
The first nine records are email correspondences between SSMS administrators and other individuals such as parents and those affiliated with the Utah State Board of Education. Respondent redacted some names and pronouns within these records on the grounds that releasing them would constitute an unwarranted invasion of personal privacy for the named individuals. See Utah Code § 63G-2-302(2)(d). Respondent argues that because SMSS is central to a small and close community in Monroe, Utah, it wouldn’t be difficult to figure out the identity of the individuals who corresponded with school officials or were otherwise mentioned in the communications. We agree with this argument.
With the only redactions being names and pronouns, we find that the substance of the communications is left untouched, and, upon review of that substance, we find that the records are public records and the current redactions appropriate pursuant to Subsection 302(2)(d).
B. Page 10
Page 10 is a handwritten note that was used and relied on in the administrative investigation. With respect to administrative disciplinary actions, Subsection 63G-2-305(3)(o) provides that records relating to formal charges or disciplinary actions against government employees are public if (i) the disciplinary action has been completed and all timer periods for an appeal have expired; and (ii) the charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o)(i)-(ii). Here, the disciplinary action against the employee orchestrating “endurance day” was sustained and all appeal periods have expired. Consequently, as this handwritten note was used in relation to sustaining that action, it is now a public record and must be released.
C. Page 11
Page 11 appears to be typed notes without an author. Upon review, we find nothing in the note that triggers a protective classification within GRAMA. Utah Code § 63G-2-103(25)(a)(i)-(ii) defines a “record” as “a . . . document, . . . plan, . . . or other documentary regardless of physical form or characteristics: that is prepared . . . by a governmental entity and where all of the information in the original is reproducible by photocopy.” The typed notes satisfy the definition of a “record.” Accordingly, this page is a public record and must be released.
D. Pages 12-13
Pages 12-13 comprise a letter from superintendent, Cade Douglas, to SMSS principal, Michelle Nielson, that provides an update and information on the school district’s formal investigation of the endurance day. As with the first nine records, Respondent seeks to redact names and pronouns of certain personnel mentioned in the letter. For the same reasons we outlined for pages 1-9, we agree that the redactions are appropriate, and the letter may be released with that information withheld.
E. Pages 14-15
Pages 14-15 comprise a letter from principal Nielson to the district’s human resources director, Nolan Andersen. Respondent seeks to redact four substantive portions of the letter. After reviewing the document, we find that:
(1) The first redaction—the second sentence of the opening paragraph—is incorrectly restricted. That sentence is public information and may not be redacted.
(2) The second redaction—item 3 in the letter—is properly redacted since it concerns an individual whom formal charges for disciplinary action was not sustained. Under Subsection 63G-2-301(3)(o), if the formal charges are not sustained, the record cannot be classified as public.
(3) The third redaction—item 5 in the letter—must be unredacted as the charges relating to Kycen Winn were sustained. See § 63G-2-301(3)(o).
(4) The fourth redaction—item 6 in the letter—is appropriately redacted for the same reasons as the second redaction mentioned above.
F. Pages 16-19
Pages 16-19 are the Sevier School District Administrative Counseling Form for Kycen Winn. Respondent seeks to redact certain names within form for the same reasons as those in prior records. We agree that these redactions are appropriate, and the form may be disclosed with the names withheld.
G. Pages 20-40
Pages 20-40 comprise various student injury reports. Respondent seeks to withhold these records entirely under the protections set forth in the Family Educational Rights and Privacy Act, 34 C.F.R. Part 99 (“FERPA”). GRAMA addresses FERPA records by stating “[t]he disclosure of an education record as defined in [FERPA] that is controlled or maintained by a governmental entity shall be governed by [FERPA]. Utah Code § 63G-2-107(2)(c). In Kummer I and Kummer II, we addressed a FERPA record in the form of video surveillance footage of “endurance day.” In that case, we followed the holding in Bryner v. Canyons School District, 2015 UT App 131, which held that when a student’s identifiable information is redacted, the FERPA related portion of the record is withheld and GRAMA can control the unredacted information. From that guidance, we ruled that the video footage must be disclosed in redacted form. See Kummer I and Kummer II. While we are aware that FERPA itself allows for disclosure of FERPA records if the records are de-identified, and while we are aware of our rulings in Kummer I and Kummer II, we find that, in this case, invading FERPA for the student injury reports is inappropriate and we decline to do so.
The student injury reports concern various students and their medical reporting to school officials. We fail to see the relevance of other minor children’s medical reporting to Petitioner’s efforts to gather more information about “endurance day” and the school’s subsequent investigation and administrative actions. Even if there were other students who incurred injury from the gym class, those students’ injuries don’t assist any claims Petitioner has in relation to his own daughter and claims that might possibly be brought on her behalf. Further, even if the records were not governed by FERPA, the information concerns minor children to whom we find an expectation of privacy from other adults not related to them. Without the proper consent and authorization to release the student injury reports, we find that their access may be restricted.
H. Pages 41-45
Pages 41-45 comprise text messages between principal Neilson and human resources director, Nolan Andersen. Within those text messages, Respondent seeks to redact a portion of the messages. Because only a portion of the texts are redacted, Respondent acknowledges that text messages can be public records. See e.g., Henderson v. San Juan County, Decision and Order 19-33, Utah State Records Committee (entered Sep. 23, 2019) (ruling that text messages sent by county official from his personal cell phone could constitute a public record). If text messages can be public records under GRAMA, then it stands to reason that expectations of privacy in those text messages are to some degree diminished. Cf Romboy v. University of Utah, et al., Decision and Order 23-55, Utah State Records Committee (entered Oct. 30, 2023) (ruling NIL contracts become a public record when they are delivered to a public university and the athlete therefore loses their expectation of privacy in the contracts). Consequently, in reviewing the text messages, we find that the redactions are inappropriate for the information they seek to withhold. Both principal Neilson and director Andersen are school administrators to whom GRAMA shines sunlight on the communications they have in their official capacities. Nothing in GRAMA provides a basis for the current redactions. Accordingly, Respondent must lift the current redactions on page 41.
With that said, we do find that other parts of the text messages deserve redaction. Subsection 305(1)(b) makes private “records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or other similar medical data.” The text messages do contain some information related to an individual’s medical treatment and situation. Accordingly, this information should be redacted.
I. Pages 46-56
Pages 46-56 comprise text message communications among various school administrators, including who appears to be director Andersen and superintendent Douglas. Respondent seeks various redactions throughout the messages based primarily on the authors’ privacy. For the same reasons we set forth in the previous section, we find that the school administrators have little, if any expectation of privacy in their official communications. Accordingly, we find that none of the redactions are appropriate and all must be lifted as these messages are all public records.
J. Pages 57-67
Pages 57-67 comprise handwritten notes related to Respondent’s investigation. Respondent argues that the notes are drafts that preceded the investigation report and are therefore protected under GRAMA. Subsection 63G-2-305(22) classifies drafts as protected unless they are otherwise public. However, Subsection 301(3)(k) classifies drafts as public even if they were never formalized as long as the draft was relied upon in carrying out the formal action. In this case, it appears that at least some of the information contained in the notes was later used in the final report. This indicates that to some degree the notes were relied on for the final report. While this seems to imply that the notes should be classified as public, we see that most of these notes pertain to individuals who were the subject of formal disciplinary charges, but whose charges were never sustained. Therefore, we find that although the draft was likely relied on for the final report, the fact that the notes concern individuals whose charges were never sustained. Consequently, the correct classification of this information is Subsection 301(3)(o) which makes public any disciplinary records where the appeal period has been exhausted and the charges were sustained. Since the charges for the individuals mentioned in the notes were not sustained, the notes pertaining to them cannot be public records.
In conclusion, we find that only the notes relating to individuals whose charges were sustained may be released.
K. Pages 68-69
Pages 68-89 are meeting minutes for two separate meetings. The first meeting took place on December 13, 2022, between school and district administrators and the Kummers. The second meeting took place on March 14, 2023, between additional school administrators and the Kummers and their daughter. Upon review of the records, we find that they are public records and must be disclosed.
L. Pages 70-77
The final pages are Respondent’s Internal Investigation Report dated November 28, 2022. While the report is a final report and, therefore, a public record, its findings show that some allegations against certain individuals were not substantiated. As with prior records, if a formal charge is not sustained, the record concerning that charge is not a public record. Utah Code § 63G-2-301(3)(o). Accordingly, we find that the report must be disclosed with exception to any information related to the charges not sustained.
II. Weighing Analysis
Once we determine the proper classification of disputed records, we then weigh “the various interests and public policies pertinent to the classification” and order the records be disclosed if the “interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). When weighing the various interests and public policies, we are instructed by the courts that we must “focus on particularized interests and public policies pertinent to the classification and disclosure of information, not a general analysis of competing public policies.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶57 (cleaned up) (emphasis original). In other words, “the balancing analysis under GRAMA must be tethered to the specific interests of the parties and particularized application of the relevant public policies at issue.” Id. at ¶ 51.
In our review and determination of the records’ classifications and redactions, we considered Petitioner’s specific interest in the records and weighed them against GRAMA’s policy protections as particularly applicable to this dispute. We are mindful that both Kummer I and Kummer II are currently being litigated in court and we are also aware that the Kummers believe they may have possible legal claims for which the requested records might support. On the other hand, GRAMA guards against invasions of personal privacy as those invasions pertain to individuals who have been under scrutiny for formal disciplinary action but were exonerated or otherwise relieved of the charges. Also, we are mindful of FERPA’s protection over student records, which, in this case, concern various students whose parents have not authorized consent to release their students’ records and nor do we see a valid reason to invoke Bryner’s rule allowing de-identified FERPA records be released. As a result, we find that, upon consideration of the specific interests of the parties and particularized application of GRAMA’s policies to this dispute, the redactions and restrictions we outlined above need not be bothered.
ORDER
THEREFORE, Respondent shall deliver the records in accordance with our Decision above.
It is so ordered.
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).
Entered this 3rd day of January 2024
BY THE STATE RECORDS COMMITTEE
________________________________
Ken Williams
Chair, State Records Committee
1. Kummer I was decided on Aug. 28, 2023. See Kummer v. Sevier School District, Decision and Order 23-36, Utah State Records Committee (entered Aug. 2023).
",Partially Granted,2024-01-03T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DIANE ALLAN, Petitioner, vs
DAVIS COUNTY, Respondent,
DECISION AND ORDER
Case No. 23-26
By this appeal Diane Allan (“Petitioner”), requests records allegedly held by Davis County (“Respondent”).
FACTS
On August 11, 2022, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested “all records of communications by and between employees of Davis County, Davis County Justice Court, Davis County Prosecutor's office including phone calls, recordings, text messages, emails, written documents involving or mentioning Diane Allan, Diane Killian Allan or Diane Killian Allen.” The date range of the requested records is March 1, 2022, through August 11, 2022.
On September 20, 2022, Respondent replied to the request, outlining the results of its search for responsive records in the following manner:
1. No responsive records were found relating to the phone calls portion of the request;
2. No responsive records were found relating to the recordings portion of the request;
3. No responsive records were found relating to the text messages portion of the request;
4. There were 2 responsive records found relating to the emails portion of the request, one of which was provided to petitioner and the other was withheld under Section 63G-2-305(10)(e); and
5. There were no responsive records found relating to the typed letters portion of the request.
Accordingly, Respondent partially granted and partially denied the request.
Petitioner was dissatisfied with this response and appealed to the Respondent's chief administrative officer (“CAO”). On October 7, 2022, the CAO responded to the appeal and without offering any explanation or reasoning decided to uphold Respondent’s decision. Consequently, Petitioner appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. During the pendency of her appeal, the parties worked with the records ombudsman to resolve the dispute. In doing so, Petitioner received a copy of the withheld record with slight redactions, but chose to continue with her appeal.
On June 15, 2023, 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
We are asked to determine whether the record that was withheld was properly classified under Subsection 63G-2-305(10)(e) and, if it was, can Petitioner establish, by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access? See Utah Code § 63G-2-406(1). If the evidence favors access, then the redactions must be lifted.
STATEMENT OF REASONS FOR DECISION
Preceding the hearing, the Committee’s executive secretary made numerous attempts to contact Petitioner to see if she wanted to withdraw her appeal in light of receiving the redacted record, but these attempts were unsuccessful. At the hearing, only the Respondent attended and was prepared to argue its case. Given that Petitioner was unresponsive to our secretary’s attempts, her non-attendance at her own appeal hearing, and the fact that she received a copy of the record that is the subject of the appeal, this Committee heard from Respondent and decided to deny the appeal. Notwithstanding the redactions, Petitioner received a copy and has failed to prosecute her appeal.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 26 day of June 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
IAN COOPERSTEIN, Petitioner, vs
UNIVERSITY OF UTAH, Respondent,
DECISION AND ORDER
Case No. 23-35
By this appeal Ian Cooperstein (“Petitioner”), requests records allegedly held by University of Utah (“Respondent”).
FACTS
On August 2, 2020, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested “all communication between Mary Bohlig, director of Campus Recreation Services, and Diane Dahlman that relate to me that were communicated through University accounts from 2008-2019.” The Respondent located some potentially responsive records but denied the request citing Utah Code §63G-2-103(25)(b)(i) claiming that the communications did not meet the definition of “records.” Additionally, the Respondent claimed that even if the communications were records, they would be withheld for the following reasons:
Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”), Todd Samuelson, who upheld the denial on February 28, 2023. The CAO didn’t discuss whether the communications could be classified as private or protected. Instead, he focused on the communications not meeting the definition of “record” under the GRAMA. Furthermore, he informed Petitioner,
[p]lease note the University’s Acceptable Use Policy Rule 4-004A(III)(2): ‘The University allows Users to make reasonable and limited personal use of its IT Resources, Information Systems, and Electronic Resources to the extent that such use does not interfere with University Duties.’ It would appear that the communications Ms. Bohlig exchanged with Ms. Dahlmann were personal in nature and permissible under University policy.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On July 20, 2023, 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
We must determine whether the sought after communications are records, whether they warrant a protective classification, and whether they must be disclosed.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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). In defining a record, the Code makes clear that “a personal note or personal communication prepared or received by an employee or officer of a governmental entity” “in a capacity other than” their employment or official capacity is not a “record.” Utah Code § 63G-2-103(25)(b)(i)(A). Further, a record that is private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5). When analyzing whether a governmental entity has correctly determined the nature of a record and its classification, this Committee has the authority to view the records in camera and review the information unredacted. Utah Code § 63G-2-403(9)(a)(ii).
1. The Communications are Records Under the GRAMA
At the hearing, pursuant to its authority to review records in camera, the Committee moved to view the unredacted contract in camera to aid it in its analysis. Upon review, we determine that the communications are records and subject to the GRAMA’s provisions.
To determine that a personal communication is not a record, the Code requires three elements be present:
1. The communication must be personal in nature;
2. The communication must be prepared by or received by a governmental employee or officer; and
3. Either the communication is made in a non-official capacity or it is unrelated to the public’s business.
Utah Code § 63G-2-103(25)(b)(i)(A)-(B).
Importantly, under the structure of Subsection (25)(b)(i), each of the three elements must be present to satisfy the statute and declare that the communication is not a record under the GRAMA. Accordingly, we look at each.
The communications were either prepared or received by a governmental employee, Mary Bohlig, the Director of Campus Recreation Services for the Respondent during the timeframe of Petitioner’s requested communications. With the second element satisfied, we look to the personal nature and substance of the communications.
When looking at whether a communication is personal, we look more to its substance rather than who the communication was sent to. For instance, in Tanner v. Utah State University, Utah State Records Committee, Decision and Order No. 23-08 (Feb. 28, 2023), we determined that emails sent from a government email account to certain family members were not records under the GRAMA because the substance was personal in nature concerning the sender’s plans after her resignation. Those plans had nothing to do with the public’s business and were clearly personal in nature. Thus, our line of decisions illustrate that whether a document is a “personal communication” does not turn on the device or account used nor the recipient, but is based on the totality of the communication in light of Subsection (25)(b)(i) with scrutiny on the subject matter being conveyed.
Here, Petitioner requested only the communications that related to him. In reviewing the records in camera, we found that the subject matter of all the records we received did relate in one way or another to Petitioner. We do not read Petitioner’s request as seeking only the records that reference him specifically, but that more generally relate to him and his overarching grievance with the Respondent concerning his past employment. Because of that, we find the communications concerning him were not personal in nature between Bohlig and Dahlman. As a result, of the record not being personal, the communications fail the statutory test Subsection 103(25)(b)(i) outlines to be excluded from the definition of “record.”
2. The Records Warrant a Protective Classification
Satisfied that the communications are records, we look at whether they should be classified as either private or protected under the Code. The GRAMA classifies as private “records concerning a current or former employee of . . . a governmental entity, including performance evaluations and personal status information. . . .” Utah Code § 63G-2-302(2)(a). As Petitioner is a former employee of the Respondent, the sought after communications do concern him. Accordingly, we find that the records are classified as private under the Code.
3. The Records Must be Disclosed to Petitioner
The GRAMA requires that a private record be disclosed to a requester under certain conditions. Pertinent here is the condition that the requester is the subject of the record. Utah Code § 63G-2-202(1)(a)(i). As discussed above, the request was specific for communications between Mary Bohlig and Dianne Dahlman that concern Petitioner. From our review of the communications, we find that Petitioner is the subject of the requested records and those we reviewed. Accordingly, the Respondent must disclose the record to him.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED. The Respondent is hereby ordered to disclose the responsive records to Petitioner.
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).
Entered this 1 day of August 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, vs
UTAH ATTORNEY GENERAL’S OFFICE, Respondent,
DECISION AND ORDER
Case No. 23-41
By this appeal Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by Utah Attorney General’s Office (“Respondent”).
FACTS
On March 12, 2023, Petitioner filed a records request and fee waiver with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Amann requested a fee waiver because “[t]he public has a strong interest in learning about any possible government corruption and favoritism at the Utah Attorney General’s Office (“UAG”) and whether the AG himself is involved, and that includes the hiring of unqualified section chiefs.” Mr. Amann requested the following records:
In a letter dated March 27, 2023, the UAG’s office responded to Petitioner’s request, stating:
“The Utah Attorney General’s Office has enacted a Policy for GRAMA Fee Waiver Requests establishing factors to be considered before the Office will grant a fee waiver request based on a claim of public benefit. Based on consideration of the factors identified in the Fee Waiver Policy, I have determined that you have not met your burden of demonstrating that this request primarily benefits the public and that the relevant policy factors weigh in favor of granting your waiver request. Accordingly, your request for a fee waiver is denied.”
The Respondent determined that the request would take between 15 and 20 hours to complete, which accounted for search time and time spent reviewing records for proper classification. The estimate to complete the records request was determined to be $300, and because that amount exceeded the threshold under Utah Code § 63G-2-203(8)(a)(i), the Respondent requested a $300 fee deposit upfront before the records request could be completed.
Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”). On April 24, 2023, the CAO rejected Petitioner’s assertion that the records requested have relevance to “public corruption” or any other official misconduct. The CAO determined that simply stating that the public would benefit from release of government records does not satisfy this condition. He added that the requested records are “directly related to a pending litigation against the Office, For these reasons, the CAO denied the appeal.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On August 28, 2023, 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
We must review the Respondent’s decision to deny the fee waiver request and determine whether that decision was reasonable.
STATEMENT OF REASONS FOR DECISION
A. The Fee the Respondent Assessed was Legally Appropriate
Under the GRAMA, “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). When it comes to the right to take a copy of a public record, the government does have some allowances to charge a fee for the record. For instance, when the governmental entity “compiles a record in a form other than that normally maintained by the governmental entity,” it may charge a reasonable fee to cover the entity’s “actual costs” in compiling the record. Utah Code § 63G-2-203(2)(a). For Subsection 203(2), “actual costs” can include the cost of staff time to search, retrieve, compile, format, manipulate, or tailor the record to meet the person’s request. Utah Code § 63G-2-203(2)(a)(i)-(ii). If the fees to compile a record are expected to exceed $50.00, the governmental entity may require payment of the fee before beginning to process the request. Utah Code § 63G-2-203(8)(a)(i).
When it comes to assessing whether the fee is appropriate, Graham v. Davis County Solid Waste Management provides guidance on interpreting Subsection 203(2). There the Court ruled:
may not charge for a request under section 63G-2-203(2) if the agency is only required to retrieve a single document or set of documents from a readily available source and provide them to the requester for inspection. An agency may, however, assess fees in conjunction with a record request that involves extracting materials from a larger document or source and compiling them in a different form. In other words, if an agency is required to do more than simply retrieve and make available a record in its original form, then the agency may charge a compilation fee for its production.
Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136, ¶26. Thus, when determining whether an agency’s fee is legally appropriate, we look for the manner in which the documents must be extracted and whether they must be compiled in a new form to fill the request.
We see that is precisely the case here. Petitioner submitted nineteen distinct record requests. The Respondent testified that the records are housed within several different state agencies (e.g., Division of Human Resources Management; Division of Finance) and many of the records are from over 10 years ago. Due to this, the Respondent testified that because of the large number of records spread across agencies, the records officer would need to contact and consult with numerous records custodians in effort to retrieve the documents. For records that would be found in personnel files, that information would need to be screened for protected information. Additionally, some records will need to be converted into a deliverable format to fill the request due to the nature in which they’re regularly held.
Because the records must be extracted from a larger (several) source, and then must be compiled in a format for delivery that they’re not regularly maintained in, we find that Graham’s requirements are satisfied and the Respondent’s decision to assess a fee has a defensible basis in law.
B. The Benefit of Releasing the Records is Immaterial to the Decision to Charge a Fee
We now turn our attention to the Respondent’s decision to deny Petitioner’s request for a fee waiver.
The GRAMA “encourages” governmental entities to waive fees if releasing the record “primarily benefits the public rather than a person.” Utah Code § 63G-2-203(4)(a). Petitioner relies on this provision in requesting his fee. The Respondent rebuts that the statute applies more to the media where the public interest in the records is presumed. We don’t see the need to interpret Subsection 203(4)(a) at this time; therefore, we decline to do so.
In Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, the Court upheld the trial court’s determination that “[d]espite finding that JRRN’s purpose was to primarily benefit the public, the court concluded that the city’s decision to deny the requested fee waiver . . . was reasonable given the voluminous nature of the request and the effort necessary to compile the requested documents.” Id. ¶83 (internal quotation marks omitted). Therefore, even if we give Petitioner the benefit of the doubt that releasing the records would primarily benefit the public, the Jordan River Court makes clear that a fee could still be permissible depending on the nature of the request.
As we’ve established that filling the Petitioner’s request will be laborious for the Respondent, we find that whether the records will benefit the public is immaterial to the Respondent’s decision to charge a fee for compiling the requested records.
C. The Respondent’s Decision to Deny the Fee Waiver Request Was Reasonable
The statute’s allowance to charge a fee for a record request does not go unchecked. When a fee waiver request is denied, and that denial is appealed to this Committee, the decision to deny a fee waiver is reviewed under a standard of “whether [the governmental entity’s] decision was reasonable.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52.
The Jordan River Court upheld the trial court’s decision that the fee waiver request denial was reasonable. The decision was mainly due to the “voluminous nature of the request and the effort necessary to compile the requested documents. Id. ¶83. We find that line of reasoning applicable here. As noted above, the Respondent will have to compile the records from several larger sources. Thus, we see no reason why Jordan River cannot be directly applicable. Accordingly, we find that due to the nature of the request, the Respondent’s decision to deny Petitioner’s request for a fee waiver was reasonable.
ORDER
THEREFORE, IT IS HEREBY ORDERED that Petitioner’s appeal is DENIED.
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).
Entered this 6 day of September 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COREY COLEMAN, Petitioner, vs
UINTAH COUNTY and VERNAL CITY, Respondents,
DECISION AND ORDER
Case No. 23-50
By this appeal Corey Coleman (“Petitioner”), requests records allegedly held by Uintah County and Vernal City (collectively, “Respondents”).
FACTS
In May, 2019, Respondent filed criminal charges against Petitioner. Petitioner alleges that the charges were filed with no police report and/or documented investigation. He also alleges that Respondent prosecuted him without releasing certain evidence. Nearly two years later, Petitioner filed records requests with Respondents pursuant to the Government Records Access and Management Act (“GRAMA”). On February 6, 2023, Uintah County received its request. Specifically, Petitioner’s request sought records relating to the 2019 charges filed against him, namely:
1. all text messages for Tegan Troutner (Uintah County prosecutor’s office) from September 16, 2022, through September 23, 2022;
2. a copy of the investigation report;
3. any communication regarding the case;
4. text communications from and to Tegan Troutner on September 20, 2022 through September 22, 2022;
5. any texts and emails from Cameron Beach, Tegan Troutner, Vernal City, Greg Lamb, Jaymon Thomas, ABH Law etc., from January 2019 through September 2019; and
6. an email to or from Greg Lamb containing 200 plus photos and attachments.
On February 17, 2023, Uintah County denied the GRAMA request, stating that “[i]tems 1, 3, 4, 5, and 6 are being denied as these are considered “protected” records pursuant to Utah Code Ann. §63G-2-305(18). This particular information will remain so classified at this time. For item number 2, there are no responsive records to your request."
Petitioner appealed the denial to the County’s chief administrative officer (“CAO”) on February 27, 2023. Upon review of the appeal, the CAO decided to release two redacted sets of text message correspondence. The CAO stated, “The redacted portions of the text messages are being redacted as protected records . . ., or because they are not considered records as they are personal communications not dealing with public business. . . .” The CAO then affirmed the denial for all remaining responsive records.
With respect to Vernal City, on March 3, 2023, Petitioner requested “all of Roxanne Affidavit and any emails associated with the creation of document from May, 2019.”[1] This request was denied on the basis that the records were protected under Utah Code § 63G-2-305(17) & (18). Petitioner appealed the denial to the City’s CAO who upheld the denial.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On September 21, 2023, the Committee held a hearing during which the parties were allowed to participate. At the hearing, Uintah County stated that it held confusion as to what records were actually being requested since some records had been delivered and the request seemed to have change in its correspondence with Petitioner. To seek that clarification, the Committee directed Petitioner to respond. Petitioner stated that he was seeking all communications between Uintah County and Vernal City connected to his criminal case, including. Uintah County presented that it had provided some records to Petitioner.
Consequently, this appeal concerns outstanding records relating to communications between Respondents in connection to Petitioner and his criminal case. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
ISSUES FOR REVIEW
We are asked to determine whether the withheld responsive records are properly classified, and, if so, whether the law permits their disclosure.
STATEMENT OF REASONS FOR DECISION
Pursuant to Utah Code § 63G-2-403(9)(a), this Committee moved to continue this matter as it views the records in camera. As the motion carried, the Committee will reconvene this matter on October 19th, 2023.
ORDER
It is hereby ordered that this matter be continued to October 19th 2023.
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).
Entered this 2nd day of October 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
1. Roxanne Behunin is the City’s records officer whose affidavit was used in Petitioner’s criminal case.
",Continuance,2023-10-02T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JONATHAN BEJARANO, Petitioner, vs
UTAH STATE TREASURER, Respondent,
DECISION AND ORDER
Case No. 23-38
By this appeal Jonathan Bejarano (“Petitioner”), requests a fee waiver for records held by, Utah State Treasurer (“Respondent”).
FACTS
On February 28, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested a “digital copy of all the e-mails sent or received by Marlo Oaks from August 1, 2022, to September 1, 2022, that contain one or more of the following keywords, ‘Blackrock.’” Additionally, Petitioner requested a fee waiver for any applicable fees.
In an email dated March 10, 2023, the Respondent informed Petitioner that “[w]e currently have records responsive to your request . . . which are included with this response. Certain personal information, as defined in Utah Code § 63g-2-303(1)(c), such as personal mailing addresses, personal email addresses, or personal phone numbers, have been redacted.” The Respondent denied the fee waiver in accordance with Utah Code § 63G-2-203(2), which allows a governmental entity to charge a reasonable fee to cover the costs associated with compiling, formatting, and packaging the records if they government must deliver the records in a format other than how they are regularly maintained. The Respondent informed Petitioner that the fee for his request was $48.00.
Petitioner appealed the decision on the fee waiver denial to the Respondent’s Chief Administrative Officer (“CAO”) on March 21, 2023, on the grounds that “there are multiple national news stories about Utah Treasurer.” However, the CAO upheld the denial of the fee waiver, pursuant to Section 63G-2-203(4)(a). The CAO explained that per Subsection 203(4)(a), “national news coverage of the office is not evidence that this request by this requester benefits the public rather than a person.”
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On August 17, 2023, 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
We are asked to review the fee waiver denial and determine if the denial was warranted and, if so, whether the fee was reasonable.
STATEMENT OF REASONS FOR DECISION
1. The Fee Charged to Petitioner was Appropriate Under GRAMA
Under the GRAMA, “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, despite this, the law permits the governmental entity to “charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.” Utah Code § 63G-2-203(1)(a). When a governmental entity must compile a record in a form other than that normally maintained by the entity, the actual costs may include the cost of staff time for compiling, formatting, and packaging the record to meet a person’s request. Utah Code § 63G-2-203(2)(a)(i). However, the governmental entity is encouraged to fulfill a record request without charging a fee if the entity determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-204(4)(a). Additionally, if the requester is a “media representative” who requests a record for a story or report for publication or broadcast to the general public, rather than for a blog, podcast, social media account, or other similar means, then the governmental entity is prevented from charging a fee for the first quarter hour of staff time spent in responding to the request. Utah Code §§ 63G-2-203(5)(a)(i)-(ii); -203(5)(c)(i).
Here, Petitioner’s request was for e-mails and was quite broad. The search for responsive emails turned up numerous results. From there, the Respondent had to compile the responsive emails and convert them into PDF files, redact protected information, package them into a deliverable format, and then deliver them to Petitioner. The emails themselves were originally maintained on the Respondent’s email server as archived emails, not PDF files. Thus, because the responsive records had to be compiled in a form other than that normally maintained by the Respondent, we find that it was within its rights to assess a reasonable fee for the time its staff had to take to compile, format, and package the records.
Petitioner argues that because the records may be used in a media report, the fee should be waived. Fee waivers may be granted to the media under Subsection 203(5), or, at the very least, the media may avoid a fee for the time it takes the governmental entity to review and inspect records to determine if they are responsive, or a fee may also be set aside for the first fifteen minutes of staff time spend in responding to a request. Utah Code § 63G-2-203(5)(a)-(c). Notably, for fees to be waived for the media, the requester must show that they are a “media representative” as defined by statute.
Under the GRAMA, a “media representative” “means a person who requests a record for a story or report for publication or broadcast to the general public.” Utah Code § 63G-2-203(5)(a)(i). Here, Petitioner provided no evidence that he meets that definition. He seems to argue that the information obtained from the records could be used for a news story and he states that he has spoken with journalists about the issue, but speculation on whether the information he seeks is journalistically worthy is not a path we’re prepared to venture down. Although Petitioner argued that he is an aspiring journalist of sorts, he currently is not one. He is not employed by any news outlets, nor has he authored any articles which have been published by any public news organization. Therefore, we find that he is not a “media representative” under the statute. As a result, we find that he is not entitled to the fee waiver contemplated by Subsection 203(5)(b)-(c).
2. The Assessed Fee was Reasonable
Turning now to the reasonableness of the fee. If it’s determined that the entity is permitted to charge a fee, then the fee amount must be reasonable. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶46, 52.
The Respondent charged Petitioner a fee of $48.00 for the voluminous records. Given the time it takes to search, review, compile, reformat, and package the large number of responsive emails, we find that staff time is compensable and $48.00 is a reasonable measure of that time.
In sum, although we sympathize with Petitioner desiring a fee waiver because of the potential journalistic value of the records, we don’t see a strong enough nexus between him and the media industry. Thus, although he argues that the records will primarily benefit the public upon potential publication, we believe the issue is best encapsulated by the succinct conclusion of the Jordan River Court: “Despite finding that [Petitioner’s] purpose was to primarily benefit the public, . . . the [Respondent’s] decision to deny the requested fee waiver [ ] was reasonable given the voluminous nature of the request and the effort necessary to compile the requested documents.” Jordan River, at ¶83 (internal quotations and ellipses omitted).
ORDER
THEREFORE, it is hereby ordered that, Petitioner’s appeal is DENIED.
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).
Entered this 28 day of August 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DAVID REYMANN (Utah Investigative Journalism Project), Petitioner, vs
UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent,
DECISION AND ORDER
Case No. 23-45
By this appeal David Reymann, attorney for Utah Investigative Journalism Project (“Petitioner”), requests records allegedly held by, Utah Department of Public Safety (“Respondent”).
FACTS
On January 24, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). The Petitioner requested all records Utah Police Officer Standards and Training (“POST”) had relating to law enforcement officer certification in Utah. Specifically, the request’s terms were for:
With respect to the records relating to certified officers, Petitioner specifically requested records that contain one or all of the following data elements:
With respect to the records relating to decertified officers, Petitioner specifically requested records that contain one or all of the following data elements:
On February 7, 2023, POST responded. With respect to the request relating to certified officers, the Respondent stated that police certification records that identify the officer’s employing agency are classified as protected under Subsection 63G-2-305(11), and because some officers may be undercover, the request is also denied under Subsection 63G-2-202 and -205.
With respect to the request relating to decertified officers, the Respondent found some responsive documents that were delivered; however, it denied the rest on the grounds that the records contained information protected under Subsections 63G-2-305(10), -305(18), and -305(22). Additionally, the Respondent claimed some of the information was classified as private under Subsection 63G-2-302(2)(d).
With respect to the third request, the Respondent stated that it does not possess any records that may help to understand or interpret the data. Consequently, the request was denied.
On March 9, 2023, Petitioner appealed the Respondent’s decision to its chief administrative officer (“CAO”). They upheld the Respondent’s decision and denied Petitioner’s appeal.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On August 28, 2023, 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 question before the Committee is whether the requested records must be disclosed.
STATEMENT OF REASONS FOR DECISION
A. The Respondent Owns the Records for Purposes of GRAMA Requests
Under the GRAMA, “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). Subsection 103(25)(a) defines record as, among other things, “. . . electronic data or other documentary material regardless of physical form or characteristics: (i) that is prepared, owned, received, or retained by a governmental entity . . .; and (ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.” Utah Code § 63G-2-103(25)(a)(i)-(ii).
The Respondent argues before this Committee that the information Petitioner seeks is housed in a shared database referred to as ACADIS. This database is the product of a contract between the State of Utah and the database provider, and is used by law enforcement agencies in Utah for multiple uses such as training, testing, storing documents, compliance, and other needs for officers. ACADIS is a shared database, meaning that it’s accessed and used by numerous other law enforcement agencies and departments, not just the Respondent and POST. It is the various agencies that upload and utilize the system for their own purposes; thus, POST itself does not upload information into ACADIS for all of the state’s officers. Because of this, the Respondent argues, it does not own or retain the records Petitioner seeks. Consequently, it is not responsible to fill the request.
We acknowledge the problem that shared databases create under the GRAMA and believe it’s an issue the legislature must resolve. However, until then, we must figure whether the Respondent is responsible for the records in the shared database. When the State of Utah contracts with a private vendor for a technology service, such as a database, the public contract holds the State, including its various departments, as owners of the information supplied to the contractor in performance of the contract. This means that, by virtue of the State’s contract with ACADIS’s provider, the Respondent is an owner of the records uploaded into the database.
This conclusion is bolstered by three different facts. First, it’s undisputed that the Respondent has access to ACADIS and the information being sought. Second, the ACADIS website itself states, “The POST is required to maintain all training, certification and employment records for the 9,280 officers who are part of the 210 law-enforcement and related agencies.” Utah POST Increases Ease and Accuracy of Reporting Vital Training Data, (Aug. 31, 2023, 2:50 PM), https://www.acadis.com/customer-stories/utah-post-academy. Together, with the Respondent sharing ownership of the uploaded information by way of the State’s contract with the vendor, we find that the Respondent owns the requested records pursuant to Subsection 103(25)(a). As owner of the records, it has a duty to deliver responsive records under the GRAMA.
B. The Records Must Be Properly Classified and Disclosed
Upon finding that the Respondent owns the requested records for purposes of GRAMA requests, we turn now to whether they must be disclosed.
A record is considered a public record unless expressly provided by statute, and a record that is private, controlled, or protected under Sections 63G-2-302, -303, -304, or -305 is not a public record. Utah Code §§ 63G-2-201(2)-(3)(a). However, if a public record contains, in part, some private, controlled, or protected information, the non-public information may be redacted to fill the request and keep in accordance with the GRAMA’s intent “promote the public’s right of easy and reasonable access to unrestricted public records.” Utah Code §§ 63G-2-308 and 102(3)(a).
The Respondent argues that even if it owns the requested records, it still cannot disclose them to Petitioner because they are protected under the GRAMA. The Respondent supports this argument by the fact that the requested records contain the identities of numerous undercover officers and to disclose them would necessarily jeopardize their safety.
True as that may be, we cannot agree that all requested records may be withheld merely because some records within the batch are protected. We are sensitive to the issue of the undercover officers’ identifiable information; however, the Respondent’s argument goes too far. Within the requested records there is most certainly information the GRAMA would classify as a public record. These records cannot be lost amidst the arguments over protecting undercover officers’ information. On the other hand, we presume, without making a determination, that there are records within the database that hold protected or private information. Therefore, the only path forward is to compile the requested records and make a determination concerning their classifications. We acknowledge the amount of work that would entail, but the GRAMA provides no relief to governmental entities for the mere fact that the requester seeks a voluminous amount of records. Accordingly, we find that the Respondent must retrieve the responsive records. From there, it must respond to the request in accordance with provisions the law sets forth. Once the records are delivered to Petitioner, it is at that point where classifications may be challenged and be brought before this Committee.
C. The Committee Will Retain Jurisdiction Over the Issues Until Final Compliance or Appeal
Our order below carries some logistical considerations. As a result, we must take a moment to explain the parameters surrounding it.
First, our regulations require that “each governmental entity ordered by the Committee to produce records shall file with the Executive Secretary [ ] a notice of compliance . . . no later than the 30th day following the date of the Committee Order.” Utah Administrative Rule R35-4-2(2). Because the requested records are voluminous, it may not be possible for the Respondent to comply with this order within 30 days. Therefore, for purposes of satisfying R35-4-2(2), the parties are to negotiate a deadline by which the records must be produced. Once a deadline is agreed upon, the Respondent may submit its notice of compliance to the Executive Secretary to satisfy the regulation. Notwithstanding that notice, however, this order will remain effective and a second and final notice of compliance must be filed with the Executive Secretary within 30 days of the Respondent producing the records.
If, upon compiling the responsive records, the Respondent believes it proper to make certain protective classifications and redactions in accordance with the GRAMA, it may do so. If Petitioner desires to appeal any withholdings or redactions, it may do so, and we will hear that appeal.
We also note that some discussion has been had about whether a fee may be charged to Petitioner to fill this request. Similar to the records’ classifications, we find it premature to address this issue at this point. If the Respondent decides a fee is warranted, and Petitioner wishes to challenge the fee, Petitioner may bring that issue before the Committee.
Thus, to be clear, Petitioner’s record request may hold several issues that eventually need to be decided, but, for now, we review only the one we’ve resolved. The others are not yet ripe for our review but we preserve the parties’ rights to have them heard if and when they ripen. Therefore, if the Respondent appeals this order to district court for review, absent any exceptional circumstances the court might find, the Committee will retain jurisdiction over the issues of the records’ classifications, possible redactions, and any assessed fees as those issues have not yet been addressed before the Committee. See Utah Code § 63G-2-404(2)(b) (“Except in exceptional circumstances, a petition for judicial review may not raise an issue that was not raised in the underlying appeal and order.”). Additionally, as it pertains to the issue we have decided, if the Respondent files its notice of compliance indicating a date has been agreed upon for the records production, the Committee will still retain jurisdiction over this order to ensure that full and final compliance with this order has occurred, that being the production and delivery of the requested records. See Career Service Review Bd. v. Utah Dept. of Corrections, 942 P.2d 933, 946 (Utah 1997) (“Until an appeal was perfected the Board retained jurisdiction and had the inherent authority to reconsider and modify its 1993 Order in light of subsequently discovered facts.”).
ORDER
THEREFORE, Petitioner’s appeal is hereby GRANTED. The Respondent is ordered to retrieve the responsive records, properly classify them, redact any private, controlled, or protected information according to the proper classifications, and, if no fee will be assessed for the records, provide them to Petitioner.
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).
Entered this 6 day of September 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY TANNER (Salt Lake Tribune), Petitioner, vs
DEPARTMENT OF HEALTH & HUMAN SERVICES, DIVISION OF CHILD AND FAMILY SERVICES, Respondents,
DECISION AND ORDER
Case No. 23-53
By this appeal Courtney Tanner, a reporter for the Salt Lake Tribune (“Petitioner”), requests records allegedly held by, Department of Health & Human Services, Division of Child and Family Services (“Respondents”).
FACTS
On April 20, 2023, Petitioner filed a records request with the Respondents pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested “the external review or fatality review and related docs, responses conducted on how Utah DCFS[1] handled the Haight family case in Enoch.” Petitioner also requested “any internal reviews” from Respondents on the same case. On April 21, 2023, Respondents denied the requests stating “no records that match this description were found within the Division of Child and Family Services. Pursuant to Utah Code Ann § 63G-2-201(8)(a&b) if a record does not exist with the information requested, the agency is not required to create or compile a record.” They added “pursuant to Utah Code Ann § 63G-2-302, information classified as private has been withheld.”
Petitioner appealed the decision to Respondents’ Chief Administrative Officer (“CAO”) Eric Stott on May 19, 2023. Respondents’ CAO, upheld the denial of the records request on the basis that the records are protected under a statute outside of GRAMA—Utah Code § 80-2-1005—and therefore, cannot be disclosed. The CAO did inform Petitioner that although there was an internal meeting to discuss the case, no records were produced from that meeting. Therefore, with respect to any records relating to an internal review, the appeal was denied.
Regarding records relevant to an external review, the CAO upheld the denial on the grounds that such records aren’t public—that an external fatality review is protected under Utah Code §§ 63G-2-305(10), 63G-2-201(3)(b), and 26B-1-506(5). The CAO went on to explain that DCFS’s case files had already been released to the public along with associated law enforcement records. As a result, Petitioner already has public access to records showing DCFS’s actions in connection with the Haight family. The CAO concluded the denial by finding that the public interest in the case does not outweigh the interest favoring restriction.
Petitioner ultimately conceded that there are no records in connection with an internal review. However, she has appealed to the State Records Committee (“Committee”), challenging the CAO’s decision with respect to records connected to an external review. In response, Respondents submitted a motion to dismiss the appeal. On October 19, 2023, 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
First, we must determine whether this appeal should be dismissed pursuant to Respondents’ motion. If we decide to proceed in hearing the appeal, then we must determine whether the requested records are governed by a statute outside of GRAMA that restricts their disclosure, or if the records fall under the purview of GRAMA and may be disclosed.
STATEMENT OF REASONS FOR DECISION
I. The Motion to Dismiss
Respondents filed a motion to dismiss arguing that Utah Code § 26B-1-501 et seq. bars them from disclosing the requested records. We note that GRAMA expressly disavows the Administrative Procedures Act. Utah Code § 63G-2-104. Additionally, the legislature intentionally kept the Utah Rules of Civil Procedure out of reach in appeals before this Committee. Compare Utah Code §§ 63G-2-403 and 404 (Section 404 expressly allows for the Rules of Civil Procedure whereas Section 403 does not). Therefore, we see that motions to dismiss are not contemplated by GRAMA. In fact, the only mechanism in which an appeal may be summarily denied is found in Subsection 403(4)(b) which allows the executive secretary to decline to schedule a hearing if “the record series that is the subject of the appeal has been found by the committee in a previous hearing involving the same governmental entity to be appropriately classified as private, controlled, or protected.” Utah Code § 63G-2-403(4)(b). Accordingly, with respect to Respondents’ motion to dismiss, we find that we cannot entertain such a motion. We must hear the appeal from the CAO’s determination of access. Utah Code § 63G-2-502(1)(a).
II. The Records are Properly Classified and Cannot be Disclosed
Utah law 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 to which access is restricted pursuant to another state statute is not a public record. Utah Code § 63G-2-201(3)(b). If the other statute allows for disclosure of the record, then access is governed by the specific provisions of that statute. Utah Code § 63G-2-107(1)(a).
In the hearing, it became evident that Petitioner’s GRAMA request is clouded with inadvertent confusion—confusion from the Respondents in what precisely is being requested, confusion from Petitioner in not knowing how Respondents labels their reports and therefore how to word her request to obtain the records she has in mind, and confusion by this Committee in trying to reconcile the request and the Respondents’ response. We sympathize with Petitioner’s plight in not knowing the specific titles of the records she seeks. We also believe that using generalized terms such as “external review” to seek some sort of audit report is understandable. On the other hand, we acknowledge the Respondents’ efforts to interpret a GRAMA request containing a lack of specificity. The Respondents informed the Committee that it interpreted “external review” to be a fatality review since fatality reviews are conducted by the Office of Services Review, a subdivision of the Respondents, but an external office distinct from DCFS—the recipient of the GRAMA request. Due to the Respondents’ organizational structure, its interpretation of the GRAMA request is reasonable. Therefore, we approach the GRAMA request with the same reading.
Fatality review reports are governed by Utah Code § 26B-1-501 et seq. Subsection 506(6)(a) outlines a list of records that are considered a “fatality review document” for purposes of the statute—among them a fatality report created pursuant to Section 506. From there, Subsection 506(6)(b) then declares that “[a] fatality review document is not subject to discovery, subpoena, or similar compulsory process in any civil, judicial, or administrative proceeding. . . .” Utah Code § 26B-1-506(6)(b). From this, the language is clear that any fatality review document itemized by the statute, including a fatality report, is confidential under the law and its disclosure cannot be compelled in this administrative proceeding.
With that said, we again acknowledge that Petitioner may have meant something else by “external review.” Thus, Petitioner may submit a new GRAMA request more specifically oriented toward what she has in mind after learning at the hearing how the request was interpreted.
ORDER
In accordance with this decision, Petitioner’s appeal is hereby DENIED.
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).
Entered this 30 day of October 2023
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
1. Division of Child and Family Services
",Denied,2023-10-30T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL CLARA, Petitioner, v.
UTAH STATE BOARD OF EDUCATION, Respondent,
DECISION AND ORDER
Case No. 23-61
By this appeal, Michael Clara (“Petitioner”), requests records allegedly held by Utah State Board of Education (“Respondent”).
FACTS
In July 2023, a news story broke that Utah State Board of Education member, Natalie Cline, was under investigation for certain social media posts. For a month, Cline’s posts were under scrutiny as Respondent conducted its internal investigation into the matter. However, on August 7, 2023, Respondent issued a press release that Cline was cleared of any wrongdoing.
On August 14, 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 following:
In a recent social media post (see attached), [Utah State Board of Education] members Brent Strate and LeAnn Wood published a letter where in [sic] they state in part … Board Leadership has announced completion of an internal investigation … out of the nine specific areas in the preliminary analysis, board leadership found three areas that they believed needed further review. Information from the review was then presented to the Board during two executive sessions…. I am requesting a copy of the ‘information’ presented to the Board.
On August 18, 2023, USBE Records Officer Ben Rasmussen provided all responsive documents, but withheld the following:
The draft letters were deemed protected pursuant to Subsection 63G-2-305(18), and the other records were classified as private under Subsections 63G-2-302(2)(a) and 305(17).
Petitioner appealed the decision to withhold those documents on August 19, 2023, to the Respondent’s Chief Administrative Officer (“CAO”) who failed to respond within 10 business days. Under Utah Code § 63G-2-401(5)(b)(i), the failure of a CAO to respond to a timely appeal constitutes an affirmation of the governmental entity’s decision.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 21, 2023, 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 withheld records were classified correctly, and, if so, whether they may be disclosed.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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 private or protected is not a public record. Utah Code § 63G-2-201(3)(a). To assess whether a governmental entity correctly classified a record as private or protected, the law allows the Committee to review the records in camera. Utah Code § 63G-2-403(9)(a)(i)-(ii).
At the hearing, the Committee moved to examine the records in camera. Upon doing so, the Committee makes the following findings.
I. Draft Letters
GRAMA classifies records as protected if they are drafts unless the drafts are otherwise classified as public. Utah Code § 63G-2-305(22). Upon review, we find that the records are properly classified as protected but under Subsection 305(22).
Upon finding that the draft letters are protected, the law directs us to weigh “the various interests and public pertinent to the classification and disclosure or nondisclosure” and, upon doing so, we may “order the disclosure of information properly classified as private, controlled, or protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). In performing that weighing analysis, we are instructed by the courts that we must weigh the “specific interests of the parties and the particularized application of the relevant public policies at issue.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶51.
In examining Petitioner’s interests, we find them insufficient to outweigh the particularized policies behind Subsection 305(22). Petitioner essentially argues that the drafts are unlawful drafts because they are the result of a public meeting in which there was no formal vote to issue a letter of reprimand. On the other hand, drafts are protected under GRAMA because they may contain information that is subject to change. For instance, a draft may contain an allegation that has yet to be sustained before it can be included in a final report. An allegation or charge not yet sustained has the potential to ruin an otherwise innocent party’s reputation if it’s released. It’s for this reason that final reports are expressly classified as public records whereas drafts are restricted. Compare Utah Code § 63G-2-301(3)(o). We find that, in comparing the drafts to the final letter that was released, the information contained in the draft letters was preliminary and not sustained, which is presumably why it was excluded from the final letter. As applied to the drafts here, we find that the particularized policy behind Subsection 305(22) outweighs that of Petitioner’s.
II. Remaining Records
The remaining records at issue are a human resources complaint filed by a non-elected employee of the Respondent, along with the investigative summary. Upon reviewing the records in camera, we find that both are correctly withheld but the investigative summary is classified incorrectly.
GRAMA makes private the records concerning a current or former employee. Utah Code § 63G-2-302(2)(a). In reviewing the records, we find that they do in fact concern an employee of Respondent. Nothing in the materials we reviewed falls under the exception to 302(2)(a), which is any records governed by Subsection 301(2)(b) (certain employment related information is a public record). Therefore, we find that the records classified as private under 302(2)(a) are correctly withheld.
The investigative summary was withheld on the grounds that it is protected by attorney-client privilege. While we agree that the record should be withheld, we find it is incorrectly classified as protected for attorney-client privilege.
In Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶33, the Court explained that three elements must be present to invoke a claim of attorney-client privilege: (1) an attorney-client relationship must be present; (2) there must be a transfer of confidential information; and (3) the purpose of the transfer was to obtain legal advice. In examining the investigative summary, we saw the existence of the first two elements, but saw no evidence that the purpose of the transfer was to obtain legal advice. With the investigative summary containing information concerning an employee, the correct classification is that of Subsection 302(2)(a).
In weighing the various interests and policies as GRAMA and Schroeder require, we find that, for similar reasons as those we weighed for the draft letters, the interests here do not favor disclosure. That is, unsubstantiated claims, allegations, or other non-sustained information contained in the investigative summary has the potential to inflame the court of public opinion about any individual(s) named in the summary. When the claims are not sustained, an individual’s reputation can unnecessarily suffer. For this reason, the investigative summary need not be disclosed.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 3rd day of January 2024
BY THE STATE RECORDS COMMITTEE
________________________________
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL ROWLEY, Petitioner, v.
UTAH DEPARTMENT OF WORKFORCE SERVICES (DWS), Respondent.
DECISION AND ORDER
Case No. 23-58
By this appeal Michael Rowley (“Petitioner”), requests records allegedly held by, Utah Department of Workforce Services (“Respondent”).
FACTS
In November, 2021, Petitioner was involved in a car accident that resulted in a significant loss of his physical abilities. His impairments affected his ability to work, and, ultimately, his employment was terminated. For this, Petitioner filed for unemployment benefits with Respondent toward the end of May, 2022. He was eventually awarded the unemployment benefits he sought.
On August 6, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested a copy of the employer’s response, statement, and/or transcript to the filing of the unemployment and the employer’s stated reason as to why he was no longer employed by them. Petitioner requested the records to settle a claim with the car insurance company to ensure he is fairly compensated in connection with his car accident.
The Respondent denied Petitioner’s request on August 9, 2023, saying that the records requested by him are classified as private records according to Utah Code § 35A-4-312, which, the Respondent alleged, prohibits the release of the records. Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”) who upheld the denial.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On November 16, 2023, 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
In light of Section 35A-4-312, we must determine whether the requested records are subject to GRAMA and may be disclosed.
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, if access to a record is restricted pursuant to another state statute, the record is not considered a public record. Utah Code § 63G-2-201(3)(b). In the event that another statute does restrict access to a requested record, disclosure is governed by the specific provisions of that statute. Utah Code § 63G-2-107(1)(a).
In this case, the Respondent points us to Section 35A-4-312 which governs all records it retains. This section of law is quite broad in its protections over information the Respondent obtains. For example, Subsection 312(4) states that “information obtained by the division under this section may not be used in court or admitted into evidence in an action or proceeding” except in legal proceedings expressly established by the Employment Security Act, particularly written agreements with the Labor Commission, a court order pursuant to certain GRAMA sections, and a written agreement with the Office of State Debt Collection. Utah Code § 35A-4-312(4)(a)(i)-(iv). While the requested records are not being used in the proceeding before us, this section illustrates the vast protection the statute extends over the records.
Subsection 312(5) governs the actual disclosure of information the Respondent has in its possession. That provision states that “information obtained by the division may be disclosed to:” and then proceeds to itemize fifteen individuals to whom records may be disclosed. Notably, we see that the subject of the records is not among the listed. Compare Section 63G-2-202(1)(a) (“a governmental entity shall, upon request, disclose a private record to the subject of the record”).
From our review of the statute, we find only one possible provision that could permit the Respondent to release the records. Subsection 312(5) allows the Respondent’s information to be disclosed to “the public for any purpose following a written waiver by all interested parties of their rights to nondisclosure.” Utah Code § 35A-4-312(5)(k). However, when the Committee questioned the Respondent on this possibility, the Respondent testified that it had sought the employer’s consent to release the requested records since disclosure affects the employer’s interests, but the employer declined to consent.
In sum, the Committee recognizes the frustration Petitioner is experiencing in trying to obtain the records for purposes of his vehicle accident claim. To us, it seems that there may be a good policy reason to allow him the records he seeks for his stated purpose. However, “that is no reason for us to step in and do the legislature’s job of amending or updating its laws.” Matter of Childers-Gray, 2021 UT 13, ¶309 (Lee, J. dissenting). This committee is bound to follow the express provisions of the statute, and where GRAMA specifically defers to other governing statutes, and where the governing statute in this case holds no provision that would permit the records’ release, we must affirm the Respondent’s denial.
ORDER
THEREFORE, in accordance with our Decision above, Petitioner’s appeal is hereby DENIED.
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).
Entered this 28 day of November 2023
BY THE STATE RECORDS COMMITTEE
Kenneth R. Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KELLY ANDERSON, Petitioner, v.
DAVIS COUNTY, Respondent,
DECISION AND ORDER
Case No. 24-02
By this appeal, Kelly Anderson (“Petitioner”), requests records allegedly held by Davis County (“Respondent”).
FACTS
Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, he requested a copy of voting records for John Benjamin Collier—the elections Mr. Collier voted in, not necessarily how he voted.
In a response dated May 25, 2023, the Davis County Clerk’s Office denied the request stating that the requested record is classified as private pursuant to § 63G-2-302(1)(d). Subsequently, the Davis County Commission received an appeal from the Petitioner on or about June 12, 2023, requesting that the denial of his original request be reconsidered. Davis County Commission Chair Lorene Kamalu reviewed the facts surrounding the request as well as the response and upheld the denial.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On January 4, 2024, the Committee held a hearing during which the parties were allowed to participate. However, even after being personally contacted about his appearance at the hearing, Petitioner failed to attend. After having carefully considered the matter, the Committee issues the following Decision and Order.
ISSUES FOR REVIEW
We must determine whether the responsive records are correctly classified and withheld.
STATEMENT OF REASONS FOR DECISION
At the hearing, Petitioner failed to appear despite the Committee’s secretary contacting him and asking him to make his appearance. Petitioner informed the secretary that he believed attending the hearing would be futile. As a result of his voluntary non-appearance, we have no choice but to deny his appeal in the form of a default ruling for Respondent.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 16 day of January 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH LOCAL GOVERNMENT TRUST, Respondent,
DECISION AND ORDER
Case No. 24-10
Prior to the hearing, the Respondent, Utah Local Government Trust, delivered responsive records to Petitioner, Brady Eames. At the hearing, Petitioner acknowledged receipt of the records. Accordingly, the appeal is now moot.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DISMISSED.
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).
Entered this 29 day of January 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JACK BREWER, Petitioner, v.
UNITAH COUNTY, Respondent,
DECISION AND ORDER
Case No. 24-20
By this appeal, Jack Brewer (“Petitioner”), requests records allegedly held by Uintah County (“Respondent”).
FACTS
The Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On October 20, 2023, Specifically, Petitioner requested: all records cross referencing or pertaining to 2023 “PhenomeCon”--a conference that takes place in Vernal, Utah, with a centralized focus on paranormal phenomena.
Over the course of responses from Respondent and appeals up to and through the Respondent’s chief administrative officer, Petitioner received some records responsive to his request. However, Respondent withheld the agreements it had with the various speakers and presenters for the conference, called “Talent Agreements” (“Agreements”). The Agreements were all created using a standard form which held some minor differences with respect to the respective speakers, such as compensation rates. Respondent delivered the Agreements in heavily redacted form, withholding nearly all of the contract terms pursuant to Subsection 63G-2-305(25) on the basis that Section 13 of the Agreements required the redactions and that the Agreements contained private information, such as personal mailing addresses, email addresses, and phone numbers. Section 13 of the Agreements provides:
13. Confidential. The parties acknowledge that the terms of this Agreement are confidential. Talent shall not disclose the terms of this Agreement to any third-party, except Talent’s attorney, agent or tax professional (on a need-to-know basis only), who shall agree to be bound by the foregoing confidentiality obligation.
Petitioner appealed the redactions to the State Records Committee (“Committee”). He concedes that the personal addresses, email addresses, and phone numbers, may be redacted, he challenges the redactions over all substantive terms of the Agreements. On March 21, 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 Agreements have been properly redacted.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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 protected is not a public record. Utah Code § 63G-2-201(3)(a). Importantly, only records listed in Section 63G-2-305 may be classified as protected and withheld from a person requesting the record. Utah Code § 63G-2-201(4). To determine whether the record is correctly classified as protected, the law allows this Committee to review the records in camera.
At the hearing, we moved to review the records in camera. Upon doing so, we find not only that Respondent’s reliance on Subsection 305(25) is misplaced, but also that Agreements are not protected under Section 305 at all.
Respondent relies on the “Confidential” provision found in Section 13 of the Agreements to bar their disclosure. The argument is that this provision exists because the contracts contain information that, if disclosed, could put the speakers at a competitive disadvantage in the marketplace. Protection of commercial information is addressed in Subsection 63G-2-305(2), not -305(25).
Subsection 305(25) protects “records, other than personnel evaluations, that contain a personal recommendation concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal privacy, or disclosure is not in the public interest.” Respondent argues that the clause succeeding the final comma—“or disclosure is not in the public interest”—is broad enough to apply to the Agreements, and that the public interest does not outweigh the interests of protecting the speakers against competitive disadvantage. We don’t agree with this interpretation. When read in context, Subsection (25) refers to employment records that contain a personal recommendation. This is indicated by the initial clause: “other than personnel evaluation.” Because personal recommendations concerning an individual happen in an employment context and the initial clause seeks to exclude personnel evaluations, we believe the statute is contextually addressing employment records that contain personal recommendations of an individual. The Agreements do not concern Respondent’s employees, but outside talent being contracted. Therefore, Subsection (25) is inapplicable.
However, even if the statute is not limited to just employment recommendations, Subsection (25) still doesn’t apply because the Agreements don’t contain personal recommendations concerning an individual. The plain text of Subsection (25) protects personal recommendations that their disclosure “would constitute a clearly unwarranted invasion of privacy, or disclosure is not in the public interest.” Respondent essentially argues that the comma entirely disconnects the final clause from the antecedent personal recommendations, which would allow for any record to be protected if disclosure was not in the public interest. This catch-all interpretation allowing any record to be protected after weighing the public interest is problematic because GRAMA was created on the exact opposite premise: “A record is public unless otherwise provided by statute.” Utah Code § 63G-2-201(2). Moreover, GRAMA also states that “Only a record specified in Section 63G-2-302, 63G-2-303, 63G-2-304, or 63G-2-305 may be classified as private, controlled, or protected.” Utah Code § 63G-2-201(4) (emphasis added). Respondent’s argument that any record can be protected if disclosure is not the public interest fails to satisfy the specificity requirement of -201(4). Indeed, it would be strange if, among the 87 types of records that are specifically described in Section 305, there was a catch-all protection for ‘any record where disclosure is against the public interest.’ We find that neither GRAMA’s policy nor the text itself supports Respondent’s argument.
Rather than Subsection 305(25), we believe the more applicable GRAMA protection is Subsection 305(2), which expressly protects commercial information. However, the provision goes on to state that commercial information is protected only if three requirements are met:
(a) Disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future;
(b) The person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and
(c) The person submitting the information has provided the governmental entity with the information specified in Section 63G-2-309.
Utah Code § 63G-2-305(2)(a)-(c). But even assuming arguendo that both Subsections (a) and (b) are satisfied, we find that Subsection (c) has not.
For a record to be protected because it contains commercial information, Subsection 305(2)(c) requires that the person submitting the information also comply with Section 63G-2-309. There, the law states:
(1)(a)(i) Any person who provides to a governmental a record that the person believes should be protected under Subsection 63G-2-305(1) or (2) or both Subsections 63G-2-305(1) and (2) shall provide with the record:
(A) a written claim of business of confidentiality; and
(B) a concise statement of reasons supporting the claim of business confidentiality.
Utah Code 63G-2-309(1)(a)(i)(A)-(B). Thus, for a claim of confidentiality to withstand scrutiny, the person submitting the record to the governmental entity must provide both a written claim of confidentiality and a statement of reasons supporting the claim.
In Barnes v. Governor’s Office of Economic Opportunity, Decision and Order no. 23-31, Utah State Records Committee (entered Aug. 1, 2023). Northrop Grummon submitted a separate written claim of business confidentiality with the contract it signed with the governmental entity. Within the written claim was a statement of reasons to support its claim of business confidentiality. Part of our inquiry was whether the claim was submitted with the record or at a later date. We found that Northrop Grummon strictly adhered to the requirements of Section 309 by properly asserting a business confidentiality claim separate from the record itself and at the time the record was provided. Because of that, we upheld the governmental entity’s restriction of access.
Here, the vendors didn’t provide a separate confidentiality claim at the time they provided the Agreements. The only evidence of any sort of confidentiality claim is Section 13 in the Agreements; however, we find this to be inadequate under what GRAMA requires. In a case very similar to the one before us, Hughes General Contractors v. Wasatch School District, Decision and Order no. 23-63, Utah State Records Committee (entered Jan. 3, 2024), we looked at the school district’s decision to withhold subcontractor lists related to a recent procurement for reasons of business confidentiality. In that case, the vendor stamped the records at issue with a “PROPRIETARY” red stamp that claimed the information contained therein was proprietary to the vendor and release of the information could result in legal action. We determined that “GRAMA contemplates a separate written confidentiality statement be submitted so that it may be retained by the governmental with the records the statement seeks to protect.” Id. (Internal quotations omitted, emphasis added). Similar here, Section 13 asserts confidentiality within the record itself. We find this does not fit what Section 309(1) states.
Subsection 309(1)(a)(i) states that “any person who provides to a governmental entity a record that the person believes should be protected . . . shall provide with the record: a written claim of business confidentiality; and a concise statement of reasons supporting the claim of business confidentiality.” Utah Code § 63G-2-309(1)(a)(i)(A)-(B). Providing a written statement and reasons with the record is different than providing them in the record. To us, GRAMA clearly indicates that the business confidentiality claim and statement of reasons supporting the claim are to be distinct and separate from the record itself so that the governmental entity can easily identify the confidentiality claim associated with the record and need not search through a potentially lengthy record to find fine print claims of confidentiality embedded somewhere within.
Where a contract contains a provision requiring one or both parties keep the contract confidential raises an interesting question of law: Does the contract prevail over GRAMA’s requirement that it be a separate written instrument? Due to the facts of the case before us, we need not answer that question at this time because even if the statute could be read to allow a confidentiality claim be embedded within the record itself, Section 309 also requires the vendor also submit a concise statement of reasons to support the confidentiality claim. Here, Section 13 of the Agreements offers no supporting reasons. Consequently, even under a liberal construction of Subsection 309(1)(a)(i), both prongs still cannot be met.
In conclusion, we find that because the speakers did not provide separate written claims of confidentiality and reasoning to support those claims, they hold no valid claim for business confidentiality over the Agreements. And since GRAMA does not protect final executed contracts generally, the Agreements are public records and must be disclosed.
Because Petitioner does not challenge the redactions of personal information contained in the Agreements, we have no need to address them and those redactions may stand, with the exception that in addition to personal addresses, email addresses, and phone numbers, Respondent may redact tax identification numbers belonging to payees on the Agreements upon disclosure pursuant to Subsection 63G-2-302(2)(d).
ORDER
THEREFORE, Petitioner’s appeal is hereby GRANTED. In accordance with this Decision, Respondent shall deliver the Agreements to Petitioner, redacting only personal addresses, email addresses, phone numbers, and tax identification numbers of payees.
It is so ordered.
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).
Entered this 1st day of April 2024
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
HUGHES GENERAL CONTRACTORS (Joe McAllister), Petitioner, v.
WASATCH SCHOOL DISTRICT, Respondent, and
WESTLAND CONSTRUCTION, Intervenor, Interested Party.
DECISION AND ORDER
Case No. 23-63
By this appeal, Hughes General Contractors (“Petitioner”), requests records allegedly held by Wasatch School District (“Respondent”). Westland Construction intervenes as an interested party.
FACTS
Recently, Respondent conducted a procurement for the construction of its new high school that is slated to be built in Heber City, Utah. Three general contractors submitted bids for the project: Westland Construction (“Westland”), Bud Mahas, and Petitioner. Westland was the low bidder by a substantial margin. Upon being awarded the contract, the law requires all bidders submit their subcontractor lists and schedule of values (collectively, “Subcontractor Documents”) to Respondent within twenty-four hours of the award.
When Westland submitted its Subcontractor Documents, it stamped each page of the package with a red “Proprietary” stamp that read:
PROPRIETARY
Any and all information contained herein is PROPRIETARY to Westland Construction, Inc. This includes any and all subcontractor financial bids/budgetary numbers and business information. Release of any of [sic] information contained here in [sic], will be cause for legal action.
When Petitioner submitted its Subcontractor Documents to Respondent, it also made a request for the other contractors’ Subcontractor Documents pursuant to the Government Records Access and Management Act (“GRAMA”). Wasatch School District didn’t answer the public records (GRAMA) request within the 10-day time limit prescribed by law. See Utah Code § 63G-2-204(4)(b). Consequently, it was treated as a denial under Utah Code § 63G-2-204(9). Petitioner appealed to Respondent’s Chief Administrative Officer (“CAO”) who responded to the appeal saying that the documents are protected records because they contain trade secrets, as set forth in § 63G-2-305(1).
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 21, 2023, 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 are properly withheld pursuant to Subsection 63G-2-305(1).
STATEMENT OF REASONS FOR DECISION
GRAMA prescribes 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). When the governmental entity receives a document, it normally becomes a public record under GRAMA and is subject to disclosure. Utah Code § 63G-2-103(25)(a)(i); See also Romboy v. University of Utah, et al., Decision and Order no. 2023-55, Utah State Records Committee (entered Oct. 30, 2023) (“When those contracts are shared with a public institution, they become a government record under statute.”). However, a record that is classified as protected is not a public record that is subject to disclosure. Utah Code § 63G-2-201(3)(a). And, as it relates to governmental procurements, procurement records become public records after the contract or grant has been awarded and signed by all parties, unless the party submitting the records to the governmental entity asserts a claim of confidentiality over the records because they can be protected under Subsections 63G-2-305(1) or 305(2).
There is no dispute among the parties that Westland submitted Subcontractor Documents to Respondent. There is, however, dispute as to whether those materials are properly classified and withheld. Petitioner argues that because the bid was awarded, Westland’s Subcontractor Documents are public record pursuant to Utah Code § 63G-2-305(6). However, while Respondent and Westland both agree that procurement records normally become public records upon the award and signing, they argue the Subcontractor Documents are still restricted under Westland’s confidentiality claim that invokes Subsection 305(1). Petitioner rebuts this by pointing to various regulations and laws that specifically address the status of subcontractor lists and sets of values as applied to certain state agencies and their construction procurements. We need not address the applicability of state agency regulations in this case because we find the records are not protected due to Westland’s failure to assert a proper confidentiality claim over them.
Subsection 63G-2-305(1) classifies as protected “trade secrets as defined in Section 13-24-2 if the person submitting the trade secret has provided the governmental entity with the information specified in Section 63G-2-309.” Thus, for Respondent’s and Westland’s defense to survive, they must show two things: (1) that the information specified in Section 309 was submitted to Respondent; and (2) that the Subcontractor Documents meet the definition of “trade secrets” as defined by state law.
At the hearing, the Committee reviewed the Subcontractor Documents in camera. For the reasons stated below, we need not address whether the records satisfy the legal definition of “trade secret.” Rather, the Section 309 compliance requirement disposes of this appeal.
As previously mentioned, in order for a trade secret to be protected from a GRAMA request, the person submitting the document to the governmental entity must also comply with Section 309. There, the law prescribes:
(1)(a)(i) Any person who provides to a governmental entity a record that the person believes should be protected under Subsection 63G-2-305(1) or (2) or both Subsections 63G-2-305(1) and (2) shall provide with the record:
(A) a written claim of business confidentiality; and
(B) a concise statement of reasons supporting the claim of business confidentiality. Utah Code § 63G-2-309(1)(a)(i) (emphasis added.)
Westland argues that its PROPRIETARY red stamp on each page satisfies Section’s 309 requirements. We disagree. Even if we were to construe the stamped language to be a written claim of business confidentiality, nothing in the stamp provides a concise statement of reasons supporting the claim that the records are proprietary. The language states only that “any and all subcontractor financial bids/budgetary numbers and business information” are proprietary to Westland Construction. This language is conclusory—it offers no reasoning for the proprietary claim as Subsection 309(1)(B) requires. Although Westland may have intended for the Subcontractor Documents to be confidential, we cannot overlook the fact that the stamped language doesn’t comply with the statute’s two required elements. Our previous rulings on confidentiality claims have been consistent on this point.
In Barnes v. Governor’s Office of Economic Opportunity, Decision and Order no. 2023-31, Utah State Records Committee (entered Aug. 1, 2023), Northrop submitted a separate written claim of business confidentiality to the Governor’s Office of Economic Opportunity in which it claimed that both Subsections 305(1) and 305(2) shielded the records from disclosure. The claim also included the reasons as to why the records needed shielding. We ruled that Northrop Grumman’s claim of confidentiality over records was properly submitted under Section 309 and we upheld the restriction of access because the practice of submitting a separate written claim of confidentiality that contains the reasoning behind the need for protection is exactly what GRAMA contemplates.
Recently, in Romboy v. University of Utah, et al., Decision and Order no. 2023-55, Utah State Records Committee (entered Oct. 30, 2023), the universities argued that a confidentiality claim should protect NIL contracts from disclosure in the event the records were not otherwise protected. We disagreed, explaining that,
[t]he Utah legislature was aware that turning commercial contracts and documents over to a governmental entity would curtail a person’s privacy expectations. For this reason, lawmakers enacted Section 63G-2-309, which allows any person to assert a claim of confidentiality over the record they provide the governmental entity if the record contains information protected under certain provisions of Section 63G-20305, and the person adheres to Section 309’s requirements. Id. at 13 (emphasis added).
In examining the materials submitted to the Committee, we found that confidentiality claims were not submitted to the universities with the NIL contracts. We concluded that “[w]ithout a proper confidentiality claim submitted at the time of the record, we find no provision in GRAMA that shields entire contracts from public disclosure.” Id. at 14.
We see no reason to deviate from our previous rulings in this case. There is no evidence that Westland submitted a separate written claim of business confidentiality at the time it delivered the Subcontractor Documents to Respondent. Nor do we have any evidence that Westland submitted a concise statement of reasons supporting the claim of business confidentiality. We don’t accept the argument that a rubber stamp constitutes the “written statement” that Section 309(1)(a)(i)(A) mandates. GRAMA contemplates a separate written confidentiality statement be submitted so that it may be retained by the governmental entity “with the records.” Utah Code § 63G-2-309(1)(a)(i). But as we stated above, even if we were to find that simply stamping the records could satisfy the “written statement” requirement, the stamp itself offers no reasoning as to why the Subcontractor Documents warrant protection. Consequently, we find that merely stamping the documents with a conclusory statement indicating that they are proprietary is not enough to satisfy Section 309’s requirements.
Because of this, we need not address whether the records were in fact trade secrets; nor do we need to address the various laws and regulations concerning subcontractor lists and sets of values post-procurement award. The requested records are public under Subsection 305(6) and must be disclosed.
ORDER
THEREFORE, in accordance with this Decision, Petitioner’s appeal is hereby GRANTED. Respondent shall disclose the requested Subcontractor Documents.
It is so ordered.
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).
Entered this 3rd day of January 2024
BY THE STATE RECORDS COMMITTEE
________________________________
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
LEHI CITY, Respondent,
DECISION AND ORDER
Case No. 24-08
By this appeal, Brady Eames (“Petitioner”), requests a fee waiver and records allegedly held by Lehi City (“Respondent”).
FACTS
Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner sought “the statutorily required public biannual report that reveals the public funds deposited and pooled in the [Public Treasurer’s Investment Fund] by the public treasurer of [Lehi City Municipal Corporation] for investment by the State Treasurer as of June 30, 2023 (D&I Report).” In conjunction with his request, Petitioner sought a fee waiver because he “believe[s] that the D&I Report is a vital public record.”
Respondent didn’t respond within the 10 days required by statute which constitutes a denial under GRAMA. Petitioner then filed an appeal with Respondent’s chief administrative officer (“CAO”). On September 26, 2023, records officer, Teisha Wilson, contacted Petitioner informing him that his appeal had been received and she had just been made aware of his initial GRAMA request. Ms. Wilson informed Petitioner that “[a]fter research and a search, Lehi City has no known records pertaining to your request.” Petitioner then appealed to the State Records Committee (the “Committee”).
On January 18, 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.
STATEMENT OF REASONS FOR DECISION
At the beginning of the hearing, both Petitioner and Respondent attended virtually. It quickly became apparent that, although the Committee and Respondent could understand each other just fine, Petitioner’s connection was failing—the Committee and Respondent both had difficulty hearing him when he spoke due to his internet connection, and he had difficulty hearing the dialogue on his end. Due to the technical difficulties Petitioner was experiencing, the Committee moved to continue the hearing until February 15, 2023.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby CONTINUED to February 15, 2023.
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).
Entered this 29 day of January 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY TANNER, Petitioner, v.
UTAH STATE UNIVERSITY, Respondent,
DECISION AND ORDER
Case No. 24-17
By this appeal, Courtney Tanner (“Petitioner”), requests records allegedly held by Utah State University (“Respondent”).
FACTS
On August 30, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner sought “any/all complaints that may have been submitted/filed to [Utah State University] (HR, Title IX, Office of Equity, etc.) about [Utah System of Higher Education] Commissioner David Woolstenhulme, as well as any findings or investigative reports on those matters, if applicable.” The request pertained to complaints submitted between August 1, 2021, and August 30, 2023. Petitioner noted that she is fine with any reasonable redactions of victim names to protect privacy.
On September 13, 2023, the records officer denied the request. Without confirming whether the Respondent had any responsive records, the records officer explained the various reasons why the records—if they existed at all—would not be subject to disclosure under GRAMA. The response cited Utah Code § 63G-2-302(2), -305(1), and -305(11) as the protective policies shielding the records.
Petitioner appealed to the Respondent’s chief administrative officer (“CAO”) who, while neither confirming nor denying the existence of the records, denied the appeal on the basis that, if responsive records existed, they would be protected under Subsection 63G-2-305(10).
Petitioner has now appealed the denial to the State Records Committee (“Committee”). On February 15, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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 under Section -302 or protected under Section -305 is not a public record. Utah Code § 63G-2-201(3)(a). Records are private if their disclosure would constitute an unwarranted invasion of personal privacy. Utah Code § 63G-2-302(2)(d). And records concerning administrative enforcement purposes are protected if releasing the records could reasonably be expected to disclose the identity of a source who is not generally known outside of government. Utah Code § 63G-2-305(10)(d).
When records are classified as private under -302(2)(d), we are to weigh the various interests and public policies to determine if the public interest favoring disclosure is at least equal to the interests favoring restriction. If we find that it is, we may order the record be disclosed. On the other hand, when records are protected under -305(10), the law requires that the requester show, by a preponderance of the evidence, that the interests favoring disclosure are at least equal to those supporting restriction. Only then may the protected record be disclosed.
In this case, the Committee reviewed the records in camera pursuant to Subsection 63G-2-403(9)(a)(ii). Upon doing so, we found that the records contain information about victims, alleged victims, and sources who would not generally be known outside of government. As a result, we find that the records are properly classified under both Subsections 63G-2-302(2)(d) and 63G-2-305(10)(d).
Although Petitioner is a journalist and seeks to use the information gleaned from the records for a news story, we find that the policy protecting the victims’ information contained in the records outweighs the Petitioner’s interest. See Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶ (“. . . the balancing analysis under GRAMA must be tethered to the specific interests of the parties and the particularized application of the relevant public policies at issue.”). Consequently, the records may be withheld.
Additionally, Petitioner has not satisfied the burden of proof to pierce the protective policies of Subsection 305(10)(d). With GRAMA requiring a preponderance of evidence to justify the disclosure of a record protected by -305(10), this burden of proof is ultimately higher than that of releasing a record withheld under Subsection 302(2)(d). Without carrying that burden, we conclude that the records may not be disclosed under -305(10).
ORDER
THEREFORE, for the reasons set forth in this Decision, Petitioner’s appeal is hereby DENIED.
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).
Entered this 26 day of February 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WILLIAM CARLESS (on behalf of USA Today), Petitioner, v.
PROVO CITY POLICE, Respondent,
SCHEDULING ORDER
Case No. 24-63
The matter before us is William Carless’s “Request for Follow-Up Hearing Regarding Unjust Delays in Promised Production of Records” that was filed on August 2, 2024. Mr. Carless bases his request on representations made to him and this Committee that the Provo City Police Department anticipated that its investigation in the matter would be complete and the requested records would be available within a short time after our hearing. Since then, Provo City has continued to push back the anticipated deadline that it expects it can deliver the records. Based on this, and for good cause showing, we reopen this case to hear from the parties concerning this matter. The Committee’s executive secretary shall schedule this hearing for December 19th and inform the parties.
It is so ordered.
Entered this 26 day of August 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., chair pro tem, Williams, K., Biehler, E., Buchanan, M., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
LOGAN CITY, Respondent,
DECISION AND ORDER
Case No. 24-21
By this appeal, Petitioner, Brady Eames, requests a fee waiver for records held by Respondent, Logan City.
FACTS
On or about September 12, 2023, September 13, 2023, and September 21, 2023, Petitioner submitted approximately 25 individual records requests to Respondent. In his September 12, 2023, request, Petitioner’s request was as follows:
(1) Each instruction sheet that was provided to the Public Treasurer by the [Office of State Treasurer] and/or the [State Money Management Council] and/or the DFI and that pertains to the Deposit and Investment Report ending June 30, 2023.
(2) Each bank statement off which the Deposit and Investment Report ending June 30, 2023, is based.
(3) The Deposit and Investment Report ending June 30, 2023, that reveals the Public Treasurer has verified the following information by his/her initial:
(A) all deposits and investments meet the criteria of the [State Money Management Council];
(B) [Logan City] has an investment policy in place;
(C) date of the last review of such investment policy; and
(D) [Logan City] does not have an investment policy in place.
(4) If it is in place, the investment policy of the [Logan City] referred to in the Deposit and Invest Report ending June 30, 2023.
(5) The Deposit and Invest Report ending June 30, 2023, that reveals the following information:
(A) name and title of the person who prepared it;
(B) average rate of investment interest,
(C) weighted Average of investment interest,
(D) breakdown of the amount of public funds in Bank/[Public Treasurer’s Investment Fund]/Money Market Accounts; and
(E) breakdown of the amount of public funds in Investment.
In his second September 12, 2023, request, Petitioner requested the following:
(1) Each ordinance or resolution pertaining to the past government crime policy effective July 1, 2022, to July 1, 2023.
(2) Any and all declarations, discovery forms, endorsements and claim reporting forms which pertain to the past government crime policy effective July 1, 2022, to July 1, 2023.
(3) Each ordinance or resolution pertaining to the current government crime policy effective July 1, 2023, to July 1, 2024.
(4) Any and all declarations, discovery forms, endorsements and claim reporting forms which pertain to the current government crime policy effective July 1, 2023, to July 1, 2024.
(5) Any and all government crime insurance claims reported during July 1, 2022, to September 12, 2023.
(6) Each ordinance or resolution pertaining to a cancellation of comprehensive liability insurance.
(7) Any and all duly filed cancellations of comprehensive liability insurance.
(8) Any and all comprehensive liability insurance claims reported during July 1, 2019 to September 12, 2023.
(9) Any and all current public official surety bonds pertaining to the elected and appointed officers of the [Logan City] other than the Public Treasurer.
(10) With respect to UC 51-7-15, the current public official surety bond or government crime theft insurance pertaining to the Public Treasurer.
In his September 13, 2023, request, Mr. Eames amended his September 12, 2023, request concerning deposit and investment reporting to read:
(1) With respect to the Deposit and Investment Report ending June 30, 2023, each and every record that reveals exactly who, for and on behalf of [Logan City] as an external participant in the [Public Treasurer’s Investment Fund], transferred the external public funds belonging to the citizens of Logan City to the custody of the State Treasurer and exactly how, where and when such external public funds were so transferred.
(2) Each instruction sheet that was provided to the Public Treasurer by the [Office of State Treasurer and/or the [State Money Management Council] and/or the DFI and that pertains to the Deposit and Investment Report ending June 30, 2023;
(3) Each bank statement off which the Deposit and Investment Report ending June 30, 2023 is based;
(4) The Deposit and Investment Report ending June 30, 2023 that reveals the Public Treasurer has verified the following information by his/her initial:
(A) all deposits and investments meet the criteria of the [State Money Management Act];
(B) [Logan City] has an investment policy in place;
(C) date of the last review of such investment policy; and
(D) [Logan City] does not have investment policy in place.
(5) If it is in place, the investment policy of the [Logan City] referred to in the Deposit and Invest Report ending June 30, 2023.
(6) The Deposit and Invest Report ending June 30, 2023 that reveals the following information:
(A) name and title of person who prepared it;
(B) average rate of investment interest,
(C) weighted Average of investment interest,
(D) breakdown of the amount of public funds in Bank/[Public Treasurer’s Investment Fund]/Money Market Accounts’; and
(E) breakdown of the amount of public funds in ‘investment.
On September 18, 2023, Respondent responded to Mr. Eames request explaining that the “total cost for the two requests dated September 12 and 13 (amended) 2023 is $75.” Respondent broke down the cost as “$60 in staff time of 4 hours at $15 per hour and $15 for a thumb drive where the documents consisting of over 300 pages are located and cannot be emailed because of the large volume.”
From there, Petitioner emailed Respondent requesting it break down the staff time fees pertaining to each record he requested in his September 12 and 13 requests. Petitioner further stated that if Respondent wouldn’t provide such a breakdown, he would withdraw his request and file new individual requests for each respective record he sought.
The record is unclear on whether Respondent replied to the email, nor is it clear that Petitioner formally withdrew his request; however, Petitioner did begin sending individual requests for records that he sought in his September 12 and 13 requests. Upon receiving the new requests, Respondent denied them on the grounds that they were duplicative of the prior GRAMA request and that they had already been made available for pickup at City Hall for the $75.00 fee. This pattern continued for several requests and came to a head when Petitioner filed a GRAMA request for an entirely new set of records on January 1, 2024. In that request, he sought the following:
(1) Each separate monthly statement of account that pertains to the citizens’ municipal money transferred by the Public Treasurer to the State Treasurer and pooled in the [Public Treasurer’s Investment Fund].
(2) Any and all documentation pertaining to the monthly apportionment of interest income earned by the State Treasurer from the investment of citizens’ municipal money from the date range of October 31, 2023, through December 31, 2023.
(3) Any and all accounting records that reveal the Public Treasurer promptly deposited into and made a part of any of the following municipal funds the interest earned/income referred to above in (1) and (2):
(A) general
(B) enterprise
(C) electric
(D) environmental health
(E) water and sewer
(F) sewer treatment
(G) emergency medical services
(H) gold course
(I) 911.
(4) Any and all accounting records which reveal the Public Treasurer provided for all the interest earned/income referred to in (1) and (2) above to be reinvested in the [Public Treasurer’s Investment Fund].
(5) Any and all actions of the [City] Council and/or the Mayor which reveal the authorization of the reinvestment described above in (4).
Respondent denied the request on the grounds that he still had not paid the $75.00 fee for the September 12 and 13 request that had been filled and made available for him to pick up.
Petitioner filed an appeal with Respondent’s chief administrative officer (“CAO”) arguing that the Records Officer was “extorting him” and abridging his “Constitutional rights” by charging the $75.00 fee. The CAO upheld the decision.
Petitioner filed an appeal with the State Records Committee (“Committee”) challenging the assessed fee. On March 21, 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 the evidence presented to the Committee, the Committee issues the following Decision and Order.
ISSUES FOR REVIEW
We are asked to determine the propriety of the fee and withholding of the January 1, 2024, requested records.
STATEMENT OF REASONS FOR DECISION
GRAMA states 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, that right is not entirely unchecked. The legislature has also “balanced the public’s right to access government documents against the government’s interest in operating free from unreasonable and burdensome records requests.” Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 137, ¶22. One way of balancing and protecting the government’s interest in that regard is to impose fees for the production of records. While the law acknowledges that fees for records “does, to some extent, limit access to public records,” the law does not allow “for a lawful custodian to bear the burden of paying for all expenses associated with a public record request.” Id., ¶25. Therefore, GRAMA allows a governmental entity to “charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.” Utah Code § 63G-2-203(1)(a). In addition, if a governmental entity must compile the records in a form other than how they are normally maintained, the entity may also assess a fee. Utah Code § 63G-2-203(2). For a political subdivision, those fees are established “by ordinance or written formal policy adopted by the governing body.” Utah Code § 63G-2-203(3)(c).
We note that GRAMA “encourages” a governmental entity to fill a record request without charge but is not required to do so. See Utah Code § 63G-2-203(4). Additionally, a governmental entity “may require payment of past fees . . . before beginning to process a request if: (ii) the requester has no paid fees from a previous request.” Utah Code § 63G-2-203(8)(a)(ii). We also note that the courts have made it clear that “sound public policy requires an agency, prior to compiling records and imposing a fee, to inform the requestor that fees will be assessed and, if so desired, allow the requestor to modify or withdraw the request based on this information.” Graham, at ¶27. And, finally, in any review of a governmental entity’s decision to deny a fee waiver request, “the ultimate question is not whether the entity abused its discretion, but whether its decision was reasonable.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52.
In this case, Respondent has shown that it follows a set fee schedule that its City Council has incorporated into the Logan City Municipal Code. See Logan City Municipal Code § 2.65.050. This ordinance allows Respondent to charge fees for record requests and requires that the records officer retain a copy of the fee schedule. That fee schedule is also available on Respondent’s website. Thus, as a preliminary matter, we find that Respondent has fulfilled GRAMA’s requirement that a political subdivision establish fees by ordinance. Of course, it’s important to point out that that legislature’s charge that political subdivisions establish a fee schedule necessarily shows that Respondent has the ability and authority to charge a fee for records requests.
Respondent testified of its history with Petitioner when it comes to battling fees. Over the years, Petitioner would submit requests for multiple records. Upon receipt and analyzing the request, Respondent would quote Petitioner the expected fee to fill the request before it began gathering the records. Upon receiving the fee quote, Petitioner would then withdraw his request and resubmit individual requests for each of the initial requested records. This practice became more burdensome on Respondent’s operations and administration than just handling the larger initial request. Because of this pattern of behavior, Respondent testified that it did not quote Petitioner the $75.00 fee for the September 12 and 13 request; rather, it filled the requests and made the records available fearing that a barrage of individual requests would ensue. Which they did anyway.
The entire purpose of allowing the governmental entity to charge a fee is to balance the “government’s interest in operating free from unreasonable and burdensome records requests.” Graham, at ¶22. Given Petitioner’s distinct pattern of withdrawing a large request only to piecemeal it afterward, does not relieve the burden, it amplifies it. Rather than focus on one unique request, Respondent must now field multiple individual requests-sometimes dozens—that all must be answered within 10 days and in accordance with the law. See Utah Code § 63G-2-204(4). We believe it unreasonable to expect a governmental entity to shoulder that burden. As a result, we find that, given Petitioner began piecemealing his request after the September 12 and 13 requests were assessed a fee, any error in not quoting the fee upfront was harmless due to the burden that was to ensue with the individual requests.
Respondent’s fee schedule covers the actual cost of providing the record and is attached to the record request form on Respondent’s website. The fees range from $0.20 for basic copies to $5.00 for a certified copy, and an hourly charge not to exceed to $15.00 per hour for staff time. These fees are reasonable, especially in the context of the voluminous requests Petitioner made in his September 12 and 13 requests. Therefore, we find that the $75.00 fee was permissible under GRAMA to cover the actual cost and staff time to gather the records. See Utah Code § 63G-2-203(1)-(2).
Finally, because GRAMA allows a governmental entity to first require payment of a past owing fee before it begins processing a new request, we find that Respondent was within its rights to refuse to process all requests that Petitioner made after the September 12 and 13. We find that until Petitioner pays the owing $75.00 fee for the September requests, Respondent may require that payment before processing any subsequent ones.
ORDER
THEREFORE, in accordance with this Decision, Petitioner’s appeal is DENIED.
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).
Entered this 1st day of April 2024
BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (FOX 13), Petitioner, v.
UTAH COUNTY, Respondent,
DECISION AND ORDER
Case No. 24-29
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Utah County (“Respondent”).
FACTS
Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On November 30, 2023, Petitioner requested initial contact reports for any case in which Mary Hall and Kira Lynch (aka Kira Green) are interviewed as alleged victims of Tim Ballard. Respondent informed Petitioner that it had no records responsive to his request. However, Petitioner informed Respondent of the reasons he believed that it did possess the records he sought, but Respondent didn’t timely respond.
Pursuant to Section 63G-2-401, Petitioner filed a formal appeal of the denial to Chief Seth Hendrickson Respondent’s chief administrative officer (“CAO”) on November 7, 2023. The CAO did not respond. Petitioner then filed an appeal to the State Records Committee (“Committee”). During the pendency of the appeal—over the course of five months—Respondent did eventually deliver responsive records.
On April 18, 2024, the Committee held a hearing during which the parties were allowed to participate. Despite Respondent delivering responsive records a week before the hearing, Petitioner desires that his appeal still be heard, requesting that his grievance be noted so that other governmental entities cannot wait several months before delivering responsive records. 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
With responsive records delivered, we are asked to review the propriety of how the record request was handled.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). After a governmental entity receives a record request, it must respond to the request “as soon as possible, but no later than 10 business days after receiving the request, or five business days after receiving a written request if the requester demonstrates that expedited response to the record request benefits the public rather than the person.” Utah Code § 63G-2-204(4)(b). In responding to the request within the 5 or 10-day required response time, the entity shall either: (i) approve the request and provide a copy of the record; (ii) deny the request in accordance with Section 63G-2-205; (iii) notify the requester that it doesn’t maintain the records; or (iv) inform the requester that because of extraordinary circumstances, it cannot immediately approve or deny the request and provide a new date by which a formal response may be expected. Utah Code § 63G-2-204(4)(b)(i)-(iv).
The first listed legislative intention behind GRAMA is to “promote the public’s right of easy and reasonable access to unrestricted public records.” Utah Code § 63G-2-107(3)(a). Further, the legislature also wanted to “prevent abuse of confidentiality by governmental entities. . . .” Utah Code § 63G-2-107(3)(c). GRAMA’s requirement that formal responses be given to record requesters within a five or ten day period is to effectuate these two policies. But that’s not what happened here.
Rather than respect Petitioner’s rights under GRAMA and the process itself, Respondent acted on its own accord, first summarily denying his request on the basis that there were no responsive records in its possession, and then, after he provided reasons that he believed otherwise and was forced to endure a lengthy appeal period of five months, Respondent somehow discovered and finally disclosed the records it had. This leads us to conclude that one of two things occurred: Either Respondent violated GRAMA’s policies of promoting the public’s right to easy and reasonable access and abused confidentiality of records, or it has violated GRAMA’s policy of “establishing fair and reasonable records management practices.” Utah Code § 63G-2-107(3)(f).
At the hearing, counsel for Respondent was anything but helpful. Perhaps better described as obstructive. When the Committee asked what procedures were initially used to search for the records—a question designed to determine whether Respondent was acting in good faith on the request—counsel refused to answer, citing attorney-client privilege. When asked why Respondent initially told Petitioner that it had no records, counsel again cited attorney-client privilege. Where attorney-client privilege requires the transfer of confidential information for the intent of obtaining legal advice, we are suspicious of how and why search procedures to fill a public record request constitutes legal advice and confidential information. See Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶33 (“Thus to rely on the attorney-client privilege, a party must establish (1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice.”) This is especially true when the law requires that the governmental entity “conduct a reasonable search for the requested record.” Utah Code § 63G-2-201(7)(b). How are we, the State Records Committee, expected to make “determinations of access” on record disputes if we can’t obtain information on how Respondent conducted its search? Utah Code § 63G-2-502(1)(b). When we are stonewalled from basic factual information concerning the case under the claim of attorney-client privilege, the truth is, we cannot. Our purpose becomes frustrated, and as a result, GRAMA’s policy of “easy and reasonable access” does as well. By blocking this Committee without so much as a privilege-log to help us ascertain how and why basic search procedures are somehow confidential despite GRAMA’s requirements and policies, we are left with no choice but to publicly admonish Respondent and voice our displeasure at how this appeal was handled.
From the beginning, it seems to us that Respondent failed to treat Petitioner, a member of the media, with the respect GRAMA requires. See Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25. (“GRAMA does not contemplate adversarial combat over record requests. It instead envisions an impartial, rational balancing of competing interests.”) Here, without receiving anything to the contrary, the stonewalling given to Petitioner and this Committee is anything but impartial, rational, and non-adversarial. We strongly advise that Respondent reevaluate its GRAMA procedures for how it handles public record requests and presents its case to tribunals such as this one that are charged by the legislatures to make findings of facts to support its determinations.
Because the records were eventually given to Petitioner a mere week before this hearing, there is no reason for us to grant his appeal. Respondent did not initially fulfill its obligation under the law; nor has it provided the Committee the required information we need to conduct a fair tribunal as the law requires. To finally comply with a public record request five months after it was submitted is not consistent with GRAMA. As a result, we deny the appeal but do so with strong disapproval of how Respondent handled the request from beginning to end.
ORDER
THEREFORE, in accordance with this Decision, because Petitioner has received the records he seeks, this appeal is DENIED.
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).
Entered this 29 day of April 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COREY COLEMAN, Petitioner, v.
VERNAL CITY, Respondent,
DECISION AND ORDER
Case No. 24-38
By this appeal, Corey Coleman (“Petitioner”), challenges the fee for records charged to him by Vernal City (“Respondent”).[1]
FACTS
On October 26, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested account ledgers, receipts, invoices, and contracts associated with multiple city account numbers, for the period from January 1, 2017, to September 1, 2023. The account numbers specified in the request are detailed as follows:
a. 10-414-3160 Special Legal Services
b. 10-414-3150 Conflict Prosecution
c. 10-414-3110 Prosecution Attorney
d. 10-414-3100 Professional Services
e. 10-414-2400 Office Supplies
In his request, Petitioner asserted that he was willing to pay a total fee of $250 for the requested records.
On November 6, 2023, Respondent informed Petitioner of the following critical aspects regarding his request:
1. Because of Respondent’s retention policy, records older than five years had been disposed of and no longer exist;
2. The estimated total cost for retrieving, compiling, and redacting the requested records from the remaining period (November 6, 2018, to September 1, 2023) was $750.
Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”), who failed to respond to the appeal. Because Utah Code § 63G-2-401(5) provides that a CAO’s failure to respond is equivalent to a denial, Petitioner has now appealed the CAO’s constructive denial to the State Records Committee (“Committee”).
On May 16, 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 assessed fee for the requested records is reasonable.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.” Utah Code § 63G-2-203(1)(a). Additionally, when a governmental entity must extract records from a larger source and compile them in a different form, a fee may be assessed. Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist., 1999 UT App 136, ¶26; see also Utah Code § 63G-2-203(2). However, the government “bears the burden of establishing the necessity of ‘compiling’ the records in a manner so as to justify the charging of fees to the public.” Id. at ¶27. And in all cases, “sound public policy requires an agency, prior to compiling records and imposing a fee, to inform the requestor that fees will be assessed and, if so desired, allow the requestor to modify or withdraw the request based on this information.” Id.
Respondent asks us to take its written statement and rule in its favor. But that endeavor is easier said than done. As Graham gives guiding interpretation of Section 203 and when fees may be properly assessed, we are beholden to follow its guidance. Thus, we are to check the imposed fee against Respondent’s burden to show that (1) the fee is permissible; and (2) the fee is reasonable. Since Respondent desired to rest on its written statement, we rely solely on that and are mindful moving forward that it shoulders the burden of convincing us that Graham’s test is satisfied and the fee is reasonable. Without being present for the Committee’s examination, we are initially curious if the written statement alone can sufficiently demonstrate what it needs to.
In its written statement, Respondent justifies the $750 fee with the following four points.
1. Respondent’s accounting clerk had already expended 16 hours on searching and retrieving relevant documents. This effort included compiling information from “different aspects of city operations” and was “time-consuming and complex.”
2. Respondent estimated that an additional 4 to 6 hours was required to complete the retrieval of all responsive documents. This estimate was based on “a detailed analysis of the remaining records and the specific years involved.”
3. Following retrieval, “significant staff time is necessary to review the documents and redact any sensitive or protected information.”
4. The records “must also be formatted and compiled in a manner that makes them accessible and usable to the Appellant, which requires additional staff time.”
The problem is that these four points are largely conclusory and, if we are to do the job Graham requires us to do, we must question these claims. For instance, what is meant by “different aspects of city operations” and why would that be “complex” and “time-consuming”? What was the “detailed analysis of the remaining records,” and how did that determine the time remaining? How “significant” would the staff time be to review the records for possible redactions? That is, how many documents must be reviewed, and, according to the nature of the records, what is the likely amount of redactions for these types of records? And, what justifies the claim that the records “must also be formatted and compiled in a manner that makes them accessible and usable” to Petitioner? Notably, Graham specifically holds that, if the requestor doesn’t specify that the records be delivered in a particular format, then the government bears the burden of proving that, to fill the request, the records must be compiled in a format not regularly maintained.
In relying solely on the written statement, we find that Respondent has not met its burden to justify the $750 fee.
With that said, we do observe that Petitioner has agreed to pay a fee of $250 for the records and that the records are being extracted from a larger source with need for redaction. Accordingly, we find that $250 is a reasonable fee for all responsive records given the evidence we have to go on.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED. The $750 fee is unreasonable and may not be charged to Petitioner. Respondent may assess a fee of $250 as authorized by Petitioner in his initial GRAMA request.
It is so ordered.
Entered this 24 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Cornwall, M., Biehler, E., Buchanan, M., and Peterson, L. voted unanimously in favor of and joined in this Decision and Order.
Enclosed: Right of 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).
1. Respondent informed the Committee’s executive secretary that it would not be attending the hearing due to a scheduling conflict and that it agreed to rest on its written statement and would allow the hearing to proceed despite its absence. At the hearing, the Committee informed Petitioner that Respondent had waived its right to appear personally at the hearing and that it desired to rest on its written statement. The Committee asked Petitioner how he would like to proceed and he asked to move forward. The Committee then elected to proceed based on Petitioner’s request and Respondent’s waiver.
",Granted,2024-05-24T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANGEL ECHEVARRIA, Petitioner, v.
PERRY CITY, Respondent,
DECISION AND ORDER
Case No. 24-46
By this appeal, Angel Echevarria (“Petitioner”), requests records allegedly held by Perry City (“Respondent”).
FACTS
The procedural history behind this case and the list of records sought are both rather lengthy, and all records requested pertained to Officer Jeremy Godfrey of the Perry City Police Department. We recount only the facts relevant to this appeal. They are as follows.
On October 26, 2023, and October 30, 2024, Petitioner submitted two requests to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). At issue here is the request for Officer Godfrey’s disciplinary records, administrative reviews, reprimands, records related to alleged misconduct, and termination documents. Ultimately, responsive records were provided to Petitioner but with redactions pursuant to Utah Code §§ 63G-2-302(2)(d) (privacy) and 63G-2-301(3)(o)(ii) (disciplinary charges not sustained).
Petitioner appealed the redactions to Respondent’s chief administrative officer, requesting that the CAO order the disclosure of redacted information regarding the internal investigation charges that were not sustained. The appeal was denied on the same day.
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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, records that are classified as private under Section 63G-2-302 are not public records. Utah Code § 63G-2-201(3)(a). If a record is properly classified as private, we are to conduct a weighing analysis when determining whether the record should be disclosed. That is, we must weigh “the various interests and public policies pertinent to the classification and disclosure or nondisclosure” and order the disclosure of the record “if the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b).
Relevant to the records at issue here are two specific classifications. Respondent argues that the redacted information is private under Subsection 63G-2-302(2)(d), which states that records are private if their disclosure would constitute “an unwarranted invasion of personal privacy,” and Subsection 63G-2-301(3)(o)(ii), which states that records relating to formal charges or disciplinary are actions against a governmental employee are normally public if the disciplinary action has been completed, all time periods for appeal have expired, and the charges were sustained. Here, all investigations have been completed and the time periods for Officer Godfrey to appeal have expired. Respondent argues that because certain disciplinary charges weren’t sustained, information relating to those unsustained charges is not public.
At the hearing, the Committee reviewed the disputed records unredacted in camera. Upon doing so, we found that the names of public employees were redacted, as well as allegations that were determined to be unsustained.
Even if public employees held a privacy interest in their names, we find that Petitioner’s interest in the records—his potential legal action—exceeds any privacy interest a public employee has in their name. Accordingly, the redactions hiding all names must be lifted.
But in weighing the interests and policies surrounding the unsustained charges, we find that the redactions were proper and may remain. The public policy behind Subsection 301(3)(o) is, in essence, a presumption of innocence until proven guilty and the preservation of a public employee’s reputation. Disclosing records where charges were either dropped, unsupported by evidence, or otherwise not sustained would be a tremendous obstacle to government employees trying to clear their names. Although the employee was relieved of the charges in disciplinary proceedings, with the unsustained charges being disclosed, he or she might always be guilty in the all-important court of public opinion. But if information about unsustained charges was never released, that court of reputational consequence may never know about the allegations to begin with. It’s for this reason that the statute makes public only the records resulting from a completed investigation with all appeals exhausted and charges sustained. That way, public opinion will be based on findings of fact proven by sufficient evidence, not conjecture. While Petitioner has an interest in the records because of his possible or otherwise pending litigation against Respondent, we find that interest is not enough. The policy reasons behind Subsection 301(3)(o) outweigh Petitioner’s interest in the records.
ORDER
THEREFORE, Petitioner’s appeal is hereby GRANTED in part and DENIED in part in accordance with this Decision. Respondent shall unredact all public employee names but may leave the redactions relating to unsustained charges undisturbed.
It is so ordered.
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., Chair Pro Tem, Williams, K., Biehler, E., Buchanan, M., and Peterson, L. voted unanimously in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH SCHOOL and INSTITUTIONAL TRUST FUND OFFICE, Respondent,
DECISION AND ORDER
Case No. 24-34
By this appeal, Brady Eames (“Petitioner”), requests a fee waiver for records held by Utah School and Institutional Trust Fund Office (“Respondent”).
FACTS
Petitioner submitted five requests to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”).
First Request – On October 15, 2023, Petitioner sent a records request to the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). In conjunction with his request, Petitioner asked that any fees associated with the records be waived. At the bottom of his record request, Petitioner made the following additional request:
If you intend to charge me any such fees, I’m hereby requesting that, before you search, find, compile, format, manipulate, package, summarize, tailor, and send or otherwise provide me any of the records described above in (1) – (10) you grant me the administrative courtesy of quoting me any applicable staff time fees albeit I’ve requested a waiver of such fees. (Emphasis original.)
The Respondent determined that the waiver request fell short and responded that there would be a fee of $125. Petitioner construed the response as a denial and he replied in an effort to “reject the initial decision.” The Respondent responded and sought clarification on whether he would like to proceed with the request and offered to arrange a payment method. Rather than respond, Petitioner appealed to the Respondent’s Chief Administrative Officer (“CAO”).
On October 20, 2023, the Respondent responded with requested records and formally imposed the $125 fee. Then, on October 25, 2023, Petitioner submitted another appeal to the CAO challenging both the denial of the fee waiver and the substance of the initial records production. On November 8, 2023, the CAO responded in detail and even produced a few additional records that had inadvertently been missed. After the supplemental production, Petitioner possessed copies of all of the Respondent’s responsive records.
Subsequent Requests – On December 5, 2023, and January 3, 2024, Petitioner submitted two new records requests. The Respondent denied both requests on the grounds that Petitioner never paid the owing $125 fee for the October 15 request and that GRAMA allowed it to demand past owing fees before processing a new request. Petitioner appealed to the CAO who upheld the denial and Petitioner has now appealed these denials to the Committee.
On May 9, 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 fee for the October 15, 2023, request was proper, and whether the subsequent requests may be withheld because of the owing fee.
STATEMENT OF REASONS FOR DECISION
I. The Assessed Fee for the Initial Request
Under GRAMA, “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, the legislature “did not intend for a lawful custodian to bear the burden of paying for all expenses associated with a public records request.” Graham v. Davis County Solid Waste Mgmt. and Energy Recovery Special Service Dist., 1999 UT App 136, ¶25. Thus, while an agency may not charge a fee for retrieving only “a single document or set of documents from a readily available source,” a governmental entity may assess a fee if the request “involves extracting materials from a larger document or source and compiling [the records] in a different form.” Id. at ¶26. However, “sound public policy requires an agency, prior to compiling records and imposing a fee, to inform the requestor that fees will be assessed and, if so desired, allow the requestor to modify or withdraw the request based on this information.” Id. at ¶27.
Here, the Respondent asserts that the first request “required sifting through dense financial documents and separating responsive from non-responsive records.” Resp’t’s Statement of Facts at 2. We acknowledge that this endeavor may have taken some amount of time to complete, but it’s only one part of the analysis. For a fee to be imposed, the records must be compiled in a form other than how the governmental entity normally maintains them—only then can a governmental entity charge for its staff time efforts in compiling the records. Graham, at ¶25; Utah Code § 63G-2-203(2)(a). We need not analyze whether the records were compiled in an irregular form because our focus is called to the fee itself.
Despite Petitioner’s own request embedded at the bottom of his record request, and despite the instruction laid out in Graham that is intended to institute a “sound public policy” in relation to public record requests, the Respondent charged Petitioner the $125 fee and simultaneously provided him the records. Thus, in addition to denying him the fee waiver he requested, the Respondent also deprived him of the opportunity to withdraw his request or modify it to reduce the assessed fee to an amount more manageable to him.
We believe the policy the Graham Court was instituting was for exactly this reason. Although a governmental entity has every right to assess a fee when it compiles records in a form they’re not normally maintained in, that fee may be more than what the requestor can afford or would be agreeable to pay. With the requestor not knowing what the production will cost, it would be inequitable to the public to allow the government to charge expensive fees without forewarning, provide the records, and then hold the owed fees as leverage against future requests. This brings us to the second issue.
II. The $125 Fee as a Past Owing Fee
After the Respondent produced the initial records and charged the $125 fee, it then denied Petitioner’s Subsequent Requests on the grounds that GRAMA expressly relieves a governmental entity from filling new record requests when there is an owing fee for previous requests. We find that this application of the law is improper.
In pertinent part, Subsection 203(8) states that “[a] governmental entity may require payment of past fees and future estimated before beginning to process a request if: (i) . . .; or (ii) the requester has not paid fees from previous requests.” Utah Code § 63G-2-203(8)(a)(ii). But, again, “sound public policy requires an agency, prior to compiling records and imposing a fee, to inform the requestor that fees will be assessed and, if so desired, allow the requestor to modify or withdraw the request based on this information.” Graham at ¶27 (emphasis added).
We find that because the Respondent acted contrary to Graham’s stated public policy and didn’t afford Petitioner the opportunity to modify or withdraw his request, especially in light of the fact that he expressly requested the opportunity to do so if a fee would be assessed, it would further frustrate public policy to now allow it to refuse to fill Petitioner’s future record requests until he pays the fee that contravened the public policy.
Our decision here necessarily requires that we confront one additional issue as a matter of clarification. Therefore, we take the opportunity to do so in effort to relieve confusion on this topic moving forward.
When a governmental entity receives a record request, it typically has 10 business days to produce the requested records or issue a formal denial. Utah Code § 63G-2-204(4)(b). If the governmental entity fails to formally respond, whether by producing the records or issuing an express denial, then the government’s silence is construed as a constructive denial. Utah Code § 63G-2-204(9). As it pertains to fees, GRAMA states that “[a] person who believes that there has been an unreasonable denial of a fee waiver under Subsection (4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Section 63G-2-205.” Utah Code § 63G-2-203(6)(a). When appealing the denial of a fee waiver under Subsection 63G-2-203(4), the requestor must file a notice of appeal with the chief administrative officer within 30 days after the date the governmental entity notifies the requestor that the fee waiver is denied. Utah Code § 63G-2-401(1)(a)(ii).
If governmental entities are required to inform the requestor of the assessed fee before compiling the records and then allow the requestor to modify or withdraw the request, per Graham, then it stands to reason that the 10-day timeframe for responding must necessarily be suspended while the governmental entity awaits the requestor’s response to the imposed fee. At that point, the requestor may modify the request to reduce the fee, withdraw the request altogether, or, pursuant to Subsection 63G-2-203(4), appeal the denial of the request for a fee waiver.[1] Because the appeal of a fee waiver denial follows the ordinary procedure laid out in Subsection 63G-2-401(1), then it must be treated as a regular appeal and given its proper due process. This means that the governmental entity’s obligation to respond to the substance of the GRAMA request is necessarily suspended during the pendency of the fee waiver appeal. Once the fee waiver appeal is finally adjudicated, the time clock for the governmental entity resumes on the substance of the initial request. Thus, it’s at the requestor’s own discretion to pursue a potentially lengthy appeal on a fee waiver before even getting to the response of the records themselves.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED. The Respondent shall waive the $125 fee for the initial request and begin processing the Subsequent Requests anew and without consideration of the $125 fee it must now waive.
Entered this 20 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Buchanan, M., and Dubovik, N. voted in favor of and joined in Part I of this Decision of Order.
Committee members Cornwall, M., Williams, K. voted in opposition to Part I.
Committee members Dean, N., Chairperson, Williams, K., Buchanan, M., and Dubovik, N. voted in favor of and joined in Part II of this Decision and Order.
Committee member Cornwall, M. voted in opposition to Part II.
enclosed: Right of 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 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).
1. This, of course, assumes that, as with the case in most GRAMA forms and the public records portal, the fee waiver request is made at the time of the initial request. If an individual is unaware of the public record request or similar GRAMA request form, it’s entirely possible that they neglect to seek a fee waiver in their initial request. We don’t opine on the latter situation because it is not before us, and the vast majority of requests address the fee waiver issue upfront within the initial request.
",Granted,2024-05-20T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
THE UNIVERSITY OF UTAH, Petitioner, v.
IAN COOPERSTEIN, Respondent,
SCHEDULING ORDER
Case No. 24-51
The matter before us is The University of Utah’s petition to declare Ian Cooperstein a vexatious requester pursuant to Utah Code § 63G-2-209. Initially, the executive secretary for the State Records Committee, the chair pro tem of the Committee, and one other member recommended that the petition be declined a hearing. See Utah Code § 63G-2-209(3)(c)(i)(A)-(C). The matter now comes before the full Committee for a vote to either ratify the decision to decline a hearing or reverse it. See Utah Code § 63G-2-209(3)(d).
The University of Utah argues that although Mr. Coopestein has not submitted any GRAMA requests within the last 9 months, they still have ongoing communications with him concerning his numerous pending requests that go back for years. The University alleges that these communications are problematic and, when taken in conjunction with the other factors outlined in Section 209, warrant their petition be heard by the Committee.
For the reasons the University asserts, the Committee reverses the initial recommendation that the appeal be declined a hearing. In doing so, we remind the parties that our decision today is limited to whether the University’s position warrants a hearing, and we express no opinion on the merits of their argument against Mr. Cooperstein.
Accordingly, this matter is scheduled to be heard on August 15, 2024.
It is so ordered.
Entered this 23 day of July 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., Chair pro tem, Williams, K., Dubovik, N., and Peterson, L. voted in favor of and joined this Order.
Committee member Biehler, E. voted in opposition.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
VANGUARD ACADEMY, Respondent,
DECISION AND ORDER
Case No. 24-73
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Vanguard Academy (“Respondent”).[1]
BACKGROUND
To better understand the parties’ arguments and our analysis, it’s helpful to outline the events that led to this appeal. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA, and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), that essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor’s signature if it was approved by two-thirds of the members of each house of the legislature, which it was. At roughly 8:00 pm that evening, the Governor signed SB 240 into law with immediate effect.[2] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
At 1:26 am on February 28, 2024, (almost 19 hours prior to SB 240 was signed into law) Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2019, through March 1, 2025.” The request then named 17 individuals.
In a response dated March 6, 2024, the Respondent denied access to the records on the grounds that SB 240 clarified that daily calendars are not records under GRAMA. Petitioner filed an appeal of the denial to the Respondent’s chief administrative officer (“CAO”).
In response, the CAO denied Petitioner’s appeal. The CAO stated: “While you may have served your GRAMA request hours before Governor Cox signed SB 240, that does not insulate your request from the law. To the contrary, when Vanguard’s response was due, the law was clear that daily calendars were not subject to GRAMA. Thus, Vanguard denied the request based on the law that existed at that time.”
The CAO went on to say that if the Respondent were required to produce the daily calendars, the costs would be significant because the request seeks more than six years of daily calendars for seventeen (17) individuals. According to the CAO, those calendars would likely have information protected from disclosure by the Family Education Rights and Privacy Act and personal information, which Judge Corum found could be redacted. The cost of retrieving, formatting, and redacting protected information from those calendars for production would be significant. Vanguard would not be willing or able to waive those costs.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Time Computation Under Utah Code
The Respondent's first argument is that the 2024 version of GRAMA is controlling because, under Section 68-3-7, GRAMA became operative the day after Petitioner submitted his request.
Section 68-3-7 provides that when an act is performed, time is computed by excluding the first day. Utah Code § 68-3-7(1)(a). Under GRAMA, when a record request is received, the governmental entity customarily has 10 business days to respond to the request. Utah Code § 63G-2-204(4)(b). Thus, according to the Respondent, because of Section 68-3-7, the 10-day clock to respond to a GRAMA request begins one day after the request is submitted. Consequently, the version of GRAMA that is in effect on day one of the 10-day response period is the one that governs the request. Regarding the request at issue, the argument is that although Petitioner submitted his request on the same day but prior to the Governor signing SB 240, the response time began running on the day after the request was submitted and when SB 240 went into law.
The time computation statute governs when a statutorily prescribed act is to be performed. This is made clear by the Subsection (1): “A person shall compute the period of time provided by law to perform an act . . .” Utah Code § 68-3-7(1) (emphasis added). Then, GRAMA states that the entity has 10 business days “after receiving a written request” to issue a formal response to the requester. Utah Code § 63G-2-204(4)(b). Read together, we agree that these statutes mean that the day the request is submitted is excluded from any statutory time periods and the clock begins on the following day. However, day 1 of the response period is not the point in time where we look to see which version of GRAMA is operative.
In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribute v. State Records Committee, 2019 UT 68, ¶1 n.1 where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in determining which version of GRAMA should be analyzed.
The Respondent goes on to argue that Section 63G-2-307 supports the idea that the 2024 version of GRAMA should apply because SB 240 was in effect when it classified the record. We disagree.
Section 307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added). Additionally, “[a] governmental entity may redesignate . . . or reclassify a record . . . at any time.” Utah Code § 63G-2-307(3). The Respondent argues that because Subsection 307(2) allows it to classify the record “at any time,” GRAMA becomes operational when that classification is made. Thus, because it classified the calendars after SB 240 went into effect, the 2024 version of GRAMA controls, and the calendars aren’t records.
We note that Section 307 deals with the classification of “records”—a defined term under GRAMA. Whether the requested calendars are “records” subject to GRAMA is the core issue of this appeal. However, even assuming that Section 307 could apply to the requested calendars, the problem with this argument is that Subsection 307(2) actually supports Petitioner’s position.
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement for the governmental entity is to classify the record when it is requested. That would require classification under the 2023 version of GRAMA when Petitioner made his request. Subsection 307(3) then permits a reclassification at any time after the record has been classified. Consequently, even if Section 307 is applied here, it is unhelpful to the Respondent since the record cannot be reclassified without first being initially classified when the request is made.
Finally, the Respondent argues that the 2024 version of GRAMA controls because it was under this version when Petitioner’s “cause of action” arose. The Respondent argues that Petitioner has no “cause of action” until his record request is denied and that under Gressman v. State of Utah¸ 2013 UT 63, it’s the cause of action that triggers GRAMA into effect, which, in this case, was after SB 240 was signed.
In Gressman, the Court analyzed the difference in retroactivity between procedural and substantive statutory amendments. The Court determined that the statutory amendments at issue were substantive and, therefore, could not be retroactive. This meant that the version of the law in place when the plaintiff’s claim arose was the controlling law. We view this as an oversimplification of Gressman.
It is true that the statute in Gressman was examined in the context of “when Mr. Gressman’s claim arose.” Gressman, ¶20. However, basing statutory effect solely on a “cause of action” is an imprecise formulation:
Instead, our cases stand for the simpler proposition that we apply the law as it exists at the time of the event regulated by the law in question. Thus, if a law regulates a breach of contract or tort, we apply the law as it exists when the alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action . . . Similarly,, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed.
State v. Clark, 2011 UT 23, ¶13 (emphasis added). From this instruction, it’s not a cause of action per se, but the event is being regulated. Since GRAMA is a unique statute that “does not contemplate adversarial combat over record requests,” we don’t believe that a cause of action must arise before the requester can gain certainty about which law will govern their request. Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25.
As discussed in greater detail below, SB 240 amended a statutory definition. The amendment substantively affected which records could be requested under GRAMA. As a result, the event that SB 240 regulates is not that which gives rise to a cause of action (the denial of the request) but the request itself. Therefore, we find the “cause of action” argument is unpersuasive.
Ultimately, we find that the case law cited above and the plain language of Section 307 shows that the requester has the right to rely on the version of GRAMA in effect when the record request was submitted, which, in this case, was the 2023 version of GRAMA.
2. The Retroactive Effect of SB 240
The Respondent argues that even if GRAMA was triggered into effect when Petitioner’s request was made, the request was still correctly denied because SB 240 applied to his request retroactively.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[3] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Waddoups, supra.
The Respondent brings Wasatch County v. Okelberry 2015 UT App 192 to our attention. That decision was rendered two years after Gressman and the Court held that a seemingly purely clarifying amendment retroactively applied. The Respondent argues that, as a more recent case than Gressman, Okelberry supports—and even controls—the proposition that a simple clarifying amendment has a retroactive effect. We are in no position to guess why the Okelberry court ignored the repudiation given in Gressman and reinforced in Waddoups, but regardless, we find that Okelberry is distinguishable in its facts.
In that case, the Supreme Court interpreted the “continuous use” requirement found in Section 72-5-104(1) (2009). The legislature disagreed with the Court’s definition and amended the statute in direct response to the Court’s decision. The amendment clarified the legislative intent behind “continuous use” by essentially defining the term and establishing elements that must be satisfied to trigger the statute’s application. Appeals then ensued over whether the legislative amendment applied retroactively.
Notably different from our case is that in Okelberry, is that the legislature’s amendment clarified the meaning of the term “continuously used.” Lawmakers established a definition to guide judicial interpretation. In our case, the legislature didn’t clarify the meaning of “daily calendars.” Instead, it made “daily calendars” its own line item in the list of items that don’t constitute a record. Thus, even though the legislature attempted to “clarify” its original intent behind daily calendars and GRAMA, it created an all-new definitional term after Judge Corum determined the statute's plain language was clear. The contrast between Okelberry and our case is clear: the former created a definition; the latter eliminated a right. The cases are not analogous, and Gressman still controls our decisions.
3. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that they constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
4. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
5. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., chair pro tem, Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. For purposes of argument and judicial economy at the hearing, this appeal was voluntarily consolidated with eight other appeals that are substantially similar in fact and questions of law. Counsel for Salt Lake City represented the consolidated respondents, including Vanguard Academy.
2. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
3. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
",Partially Granted,2024-10-04T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
PARK CITY, Respondent,
DECISION AND ORDER
Case No. 24-69
By this appeal, Adam Herbets (“Petitioner”), requests a fee waiver and records allegedly held by Park City (“Respondent”).
FACTS
At 5:00 pm on February 28, 2024, Petitioner submitted a request to Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). He also requested a waiver of any fees assessed for producing the records. Specifically, Petitioner requested:
Copies of all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2019, through March 1, 2025.
On March 6, 2024, Respondent denied the fee waiver and notified Petitioner that it would assess an estimated fee of $352.85 to provide the requested records. The fee estimate was determined due to the anticipated need to redact personal non-public information from the calendars. Respondent explained that both Mayor Worel and Police Chief Carpenter regularly kept personal appointments on their city calendars so that their respective administrative assistants would be able to effectively schedule their meetings and appointments. Because the personal appointments are non-public records, they could only be identified by Chief Carpenter and Mayor Worel. Once identified, staff would have to redact the information. To begin processing the request and compiling the records, Respondent requested a partial payment be made. At no time did Respondent deny access to the public portion of the calendars requested.
On April 6, 2024, Petitioner filed an appeal to Respondent’s chief administrative officer (“CAO”) claiming the fee waiver should have been granted because “currently there is a large amount of public interest surrounding the calendars or public officials.” In his response, the CAO denied Petitioner’s appeal as untimely filed.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 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
Respondent raises two issues. First, it argues that the Committee has no jurisdiction to hear the appeal due to the timing of Petitioner’s appeal to the CAO. Respondent then argues that even if the Committee has jurisdiction, it should rule that the assessed fee was reasonable.
STATEMENT OF REASONS FOR DECISION
GRAMA provides that “a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.” Utah Code § 63G-2-203(1)(a). If providing a record entails compiling it “in a form other than that normally maintained,” the entity may charge for “the cost of staff time for search, retrieval, and other direct administrative costs for complying with a request.” Utah Code § 63G-2-203(2)(a)(ii). However, a governmental entity is statutorily “encouraged” to waive the fee if, among other considerations, releasing the record “primarily benefits the public rather than a person.” Utah Code § 63G-2-203(4)(a). If a requester believes the fee should be waived for a reason set forth under Subsection 203(4), then they may appeal the denial of a fee waiver to the entity’s chief administrative officer “within 30 days after: . . . the date the governmental entity notifies the requester that the fee waiver is denied.” Utah Code § 63G-2-401(1)(a)(ii).
Here, Petitioner submitted his GRAMA request at 5:00 pm on February 28, 2024. That submission included a request that Respondent waive any fees since the information in the records “is for the benefit of the general public rather than a person.” On March 6, 2024, Respondent replied to the request by informing him that it estimated fees to be up to $352.85, and that it Petitioner would need to submit a partial payment of $100.00 before it would process the request and begin compiling the records. Then on April 6, 2024, Petitioner appealed the fee waiver denial to Respondent’s CAO.
Subsection 401(1)(a) says that a requester must file an appeal to the CAO “within 30 days after” the notice is given that the fee waiver is denied. While the statute has some ambiguity on whether the day the appeal is counted is filed, we take a conservative approach and begin the 30-day clock with March 7th—the day after Petitioner filed his appeal. This approach also accords with Utah Code § 68-3-7(1) which states that time periods in statute begin by excluding the first day:
A person shall compute the period of time provided by law to perform an act by:
(a) excluding the first day; and
(b) except as provided in Subsection (2), including the last day.
Therefore, as it relates here, the “first day,” for time computation purposes, was the day Petitioner filed his appeal. That day is excluded from the 30-day statute of limitations. Accordingly, March 7th is day 1 of the limitations period. Because March has 31 days in the month, April 5th would be the 30th day of the limitations period. Since Petitioner filed his appeal to the CAO on April 6th, his right to appeal expired. While the law permits some good cause exceptions for a delay, Petitioner has presented no such arguments here. Accordingly, we find that Petitioner’s appeal to the CAO exceeded the 30-day deadline and his appeal right was lost.
Because Petitioner’s appeal was untimely, we have no jurisdiction over his appeal. As a result, we don’t reach the merits of the fee waiver denial.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED
Entered this 30 day of September 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair Pro tem, Utah State Records Committee
Committee members Cornwall, M., chair pro tem, Buchanan, M., Biehler, E., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
IAN COOPERSTEIN, Petitioner, v.
UNIVERSITY OF UTAH, Respondent,
DECISION AND ORDER
Case No. 24-14
By this appeal, Ian Cooperstein (“Petitioner”), requests records allegedly held by University of Utah (“Respondent”).
FACTS
Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On November 10, 2020, Mr. Cooperstein request was as follows:
In August 2020, the OGC and OEO offices were supposed to be engaged in preparing Mary Bohlig to participate in an OEO hearing that took place on August 25, 2020. Scott Smith, Michele Ballantyne, Adam Saxby, and Kelly Marsden were some of the attorney’s [sic] responsible for that process. I would like all records showing that the attorney’s [sic] prepared to present [sic] Ms. Bohlig and well as their instructions to her.
The Respondent was unable to locate any responsive records involving attorneys specifically identified in the request; however, the Respondent did locate emails between Robert Payne, who serves as its deputy general counsel, and Ms. Bohlig, a former employee. After reviewing the emails, the Respondent notified Petitioner that it had located records potentially responsive to the request, and that the identified records were properly classified as “protected” due to attorney-client privilege. Additionally, the Respondent concluded the records were also classified as “private” because the records contain nonpublic information pertaining to a former employee and disclosing them would constitute a clearly unwarranted invasion of privacy.
Petitioner appealed the University’s decision to the Respondent’s chief administrative officer (“CAO”). Upon review, the CAO upheld the denial and affirmed that the records were protected under Utah Code §§ 63G-2-305(17) (attorney-client privilege), 63G-2-302(2)(a) (employment records), and 63G-2-302(2)(d) (disclosure would constitute an unwarranted violation of personal privacy).
Petitioner has now appealed the denial to the State Records Committee (“Committee”). On February 15, 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 two issues: First, whether the records are properly classified and withheld. Second, whether a reasonable search was conducted for responsive records.
STATEMENT OF REASONS FOR DECISION
I. Records Classification
GRAMA states 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 protected pursuant to Section 63G-2-305 is not a public record subject to disclosure. Utah Code § 63G-2-201(3)(a). Records that are subject to the attorney-client privilege are expressly listed as a protected record under Utah Code § 63G-2-305(17). If a record is subject to such privilege, then disclosure may be made only if the requester shows, “by a preponderance of evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1).
At the hearing, we moved to review the disputed record in camera. See Utah Code § 63G-2-403(9)(a)(ii). Upon doing so, we find that the records are indeed subject to attorney-client privilege. The records hold legal advice which was expected to remain confidential between an attorney and the client. See Southern Utah Wilderness Alliance, 2008 UT 88, ¶33 (ruling that to rely on attorney-client privilege, a party must establish (1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice). As a result, the 305(17) protective classification was correct.
With the attorney-client privilege protection governing the responsive records, we now look to the evidence to see if it preponderates in favor of disclosure as Subsection 63G-2-406(1) requires.
At the hearing, this Committee heard arguments in support of disclosure versus restriction. We note on the outset that “many of the exceptions to GRAMA’s disclosure requirements involve policies that virtually always outweigh the public’s right to know.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶55. And, as Schroeder illustrates, this is especially exemplified in cases where attorney-client privilege and attorney work product are at issue. That case gives us some guidance in the sense that attorney-client privilege protections can wane over time, where the interests favoring restriction may not be as strong under certain circumstances. However, in this case, Petitioner has provided us no evidence to show that the interests favoring disclosure are at least equal to the interests favoring restriction, which hold an especially high burden as the law instructs us not to weigh the various interests in support of disclosure but to look at the actual evidence. Compare Utah Code §§ 63G-2-403(11)(b) and 63G-2-406(1). As we’ve heard the arguments in favor of disclosure, we aren’t convinced that Petitioner has met his burden. As a result, the records may remain restricted.
II. The Respondent’s Search Efforts
Upon receiving a records request, “[a] governmental entity shall conduct a reasonable search for a requested record.” Utah Code § 63G-2-201(7)(b). If the requester petitions this Committee to review the adequacy of the search, the burden is initially on the government to show “by a preponderance of the evidence that its search for the requested records was reasonable.” Utah Administrative Code R35-1-3(1)(a). If the government can show that its search was reasonable, then the burden shifts to the petitioner to show “by a preponderance of the evidence that the search efforts were not reasonable.” Utah Administrative Code R35-1-3(1)(b).
Petitioner requested records concerning the Respondent’s attorneys’ efforts to prepare Mary Bohlig for a hearing. Such preparations are, of course, legal in nature. As a result, it makes sense that the search efforts would be focused within the Respondent’s legal domain. The Respondent testified that its personnel searched for anything responsive to the request, including directly contacting attorneys involved in Ms. Bohlig’s preparation and searching the attorneys’ email accounts. The Respondent noted that some of the records were arguably non-responsive but they retrieved the records in an effort to be sure nothing went ignored. Of the records found, they were then classified as protected. In hearing the Respondent’s explanation of the search efforts and its answers to our examination, we find that the search efforts were reasonable.
With that finding, the burden of proof shifts back to Petitioner to demonstrate that the search efforts were not reasonable. To this, Petitioner did not carry his burden. As a result, we leave our finding on this point undisturbed.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 26 day of February 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
DEPARTMENT OF VETERANS AND MILITARY AFFAIRS, Respondent,
DECISION AND ORDER
Case No. 24-39
By this appeal, Brady Eames (“Petitioner”), requests records allegedly the Department of Veterans and Military Affairs (“Respondent”) (“DVMA”).
FACTS
On January 5, 2024, in conjunction with numerous similar requests, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the following:
1. The semiannual deposit and investment report pertaining to the Utah Public Treasurers Investment Fund (“PTIF”) for the time period ending June 30, 2023, that has been filed with the SMMC.
2. Each separate monthly Statement of Account that pertains to the public state money transferred by the Public Treasurer to the State Treasurer and pooled in the PTIF investment by the State Treasurer and that reveals the following vital public information for the date range of January 1 to December 31, 2023:
3. Any and all documentation of the following pertaining to the monthly apportionment of interest” income earned by the State Treasurer by the investment of public state money transferred by the Public Treasurer to the State Treasurer and pooled in the PTIF:
4. The fidelity bond or government crime insurance procured by the Public Treasurer that has been effective January 1 – December 31, 2023.
Initially, it appears that the Respondent failed to respond to the GRAMA request in a timely manner, thus constituting a constructive denial of the request under Utah Code § 63G-2-204(9). Then, on January 29, 2024, Petitioner appealed to the Respondent’s chief administrative officer (“CAO”) who responded on February 12, 2024.
The CAO made the following findings:
1. Any reports on the Public Treasurer’s Investment Fund are filed by the Office of the State Treasurer.
2. There were no responsive records for public state money transferred.
3. There were no responsive records for income earned by the State Treasurer by the investment of the public state money transferred to the State Treasurer and pooled in the PTIF.
4. The Treasurer’s Office may be able to provide information on the fidelity bond or government crime insurance for the period requested.
Petitioner now appeals the CAO’s determinations to the State Records Committee (“Committee”). On May 16, 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 Respondent performed a reasonable search for the requested records.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). When a proper GRAMA request is submitted to a governmental entity, it has a duty “conduct a reasonable search” for the requested record. Utah Code § 63G-2-201(7)(b). The burden of proof a governmental entity bears in showing that its search efforts were reasonable is that of a preponderance of evidence. Utah Administrative Code R35-1-3(1)(a). If the government meets that burden, then the requestor must show by a preponderance of the evidence that the search efforts were not reasonable. Utah Administrative Code R35-1-3(1)(b). And if the governmental entity performs a reasonable search and cannot locate a requested record, GRAMA is clear that the entity need not create the record. Utah Code § 63G-2-201(7)(a)(i).
At the hearing, the Committee questioned the Respondent about the nature of the records and its search efforts. The Respondent’s counsel informed the Committee that the record request was one among nearly 20 very similar requests to other state agencies. According to counsel, all but one of the state agencies responded to the request that the requested records are owned by the State Treasurer. Counsel stated that he sought clarifications on the records and inquired of the Respondent as to the records and they determined the same conclusion—that the requested records are those of the State Treasurer’s Office.
We have no reason to question the Respondent’s claims. In looking at the GRAMA request, it clearly identifies records that are under the purview of the State Treasurer. As Petitioner made us aware during the hearing, he is unable to request public records from the Treasurer’s Office due to a standing order where this Committee found him to be a vexatious requester. See Office of the Utah State Treasurer v. Eames, Decision and Order no. 23-60, Utah State Records Committee (entered Nov. 28, 2023). Thus, it appears that Petitioner is attempting to indirectly obtain Treasurer records by requesting them from various agencies. But the records he seeks are created and retained by the Treasurer’s Office alone. Excepting those records that the Office uploads to its website for public download, only a record request to the Treasurer’s Office can allow access to the records he seeks.
Accordingly, we find that the Respondent has performed a reasonable search and there is no evidence to show otherwise. We further find that because the Respondent is not obligated to create a responsive record, its legal duties respective to Petitioner’s request are satisfied.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 24 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Cornwall, M., Biehler, E., Buchanan, M., and Peterson, L. voted unanimously in favor of and joined in this Decision and Order.
Enclosed: Right of 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).
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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SIERRA TREJOS, Petitioner, v.
WEBER COUNTY, Respondent,
DECISION AND ORDER
Case No. 24-55
By this appeal, Sierra Trejos (“Petitioner”), requests records allegedly held by Weber County (“Respondent”).
FACTS
On December 20, 2023, Petitioner submitted a request to the Weber County Library for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner’s request was as follows:
1. patronage breakdown by age;
2. funding specific to Ogden Valley Branch programming (senior vs adult vs family vs children) compared to other branches;
3. programming breakdown by percentages (senior vs adult vs family vs children);
4. Programming calendars for both children and adult for the past five years;
5. The number of regular programming that has been modified in the past five years to change age groups from what it was originally intended (i.e. a list of regularly scheduled programming that changed its core age group);
6. library policies regarding patron conduct;
7. library policies regarding how staff responds to patrons violating library policies;
8. library staff obligations to patrons;
9. library policies regarding staff who don’t fulfill obligations to patrons;
10. Policies regarding who can participate in adult programming and child programming and any exclusions that are allowed;
11. Policies regarding which groups have protected status and what they can and can’t be denied (i.e. your staff claimed mothers who don’t have alternative childcare cannot be denied access to adult programming);
12. Policies regarding the number of complaints that have to be submitted for staff to address complaint;
13. Number of complaints and number of people who made a complaint regarding the library cat until the point the library cat was removed from premises;
14. Number of people who were misusing the printing function that led to the librarians punishing all patrons;
15. Any actions that were taken by the staff to address the users who were misusing the printing before deciding to unilaterally change a process for all patrons;
16. Policies regarding the time that patrons should allow for a complaint to be addressed;
17. Policies regarding what notice is required to patrons when programming is changed;
18. Date the Ogden Valley Yoga program was changed from serving adults (18+) to families;
19. Notice that was given to the public that the Ogden Valley Yoga program was changing from serving adults (18+);
20. Job posting for the Ogden Valley Yoga position;
21. Job responsibilities/scope of the Ogden Valley Yoga position;
22. Any written changes to the job responsibilities/scope of the Ogden Valley Yoga position in the last five years;
23. Policies regarding contractors modifying Ogden Valley programming (ie contractor changing the scope or purpose of the programming);
24. Reportable gifts that library staff received from the yoga contractor since employment
25. Any gifts the library staff gave to the yoga contractor since employment;
26. Meeting minutes or emails concerning the complaints about children disrupting the Ogden Valley Yoga program (including the complaints made over a year ago);
27. Any actions the staff took to address the children disrupting the Ogden Valley Yoga program;
28. Meeting minutes or emails concerning the Ogden Valley Yoga class being changed from Adult to Family Programming; and
On December 22, 2023, the Library responded to Ms. Trejos’ request. For each of the 28 requests, the Library either provided the responsive documents, provided an explanation in response to the question, provided a link to access the requested information, or stated that the records do not exist (e.g. Not available, None, Not applicable).
Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”) on January 3, 2024, challenging the non-existent parts of her request. The CAO denied the appeal stating that “all records maintained by the Weber County Library were provided. There are no additional records pertaining to your request. Per Utah State Code 63G-2-201(7)(a)(b) if there is no record, the Library cannot create a record, nor are they required to compile, format, summarize, or tailor information that is not currently maintained by the entity.” The CAO then provided Ms. Trejos with the contact information for Nathan Carroll, a member of the County’s GRAMA Appeals Board. Ms. Trejos reached out to Mr. Carroll, but they never set a date for the appeal hearing.
Petitioner then filed an appeal to the State Records Committee (“Committee”). On July 18, 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 Respondent performed a reasonable search for the records.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). When a person submits a public record request, the law requires that the governmental entity perform a reasonable search for the records. Utah Code § 63G-2-201(7)(b). In an appeal concerning the existence of records, the issue is not whether the records exist, nor is it that the governmental entity performed a perfect search. Rather, pursuant to Subsection 201(7)(b), the governmental entity must prove by a preponderance of the evidence that its search efforts were reasonable. Utah Administrative Rule R35-1-3(1)(a). If the government meets that standard, then the burden shifts to the requester to show by a preponderance of the evidence that the government’s search efforts were not reasonable. Utah Administrative Rule R35-1-3(1)(b).
At the hearing, the library director, Lynnda Wangsgard, testified she met with all staff engaged in supervising the library’s programs or otherwise managing the Ogden Valley Branch, which was the branch pertinent to the request. Ms. Wangsgard asked staff to search their email and any other sources that they may have for responsive communications and documents related to the GRAMA request. She testified that staff had memories of communications with Petitioner, but no records.
Further, Respondent showed that while there were meetings and communications regarding Petitioner or the complaints of children attending yoga classes, there were no emails or other written communications, nor were any minutes recorded for the staff meetings. Based on the testimonies and arguments, we find that Respondent’s search efforts were reasonable.
The burden shifts now to Petitioner to show that the search wasn’t reasonable,
Petitioner’s primary argument is that certain records must exist because she provided a written complaint and emails on the topic. While this fact might create a probability, it does not satisfy the preponderance burden of showing that the search efforts weren’t reasonable. In actuality, we think the problem in this appeal has more to do with how Respondent handled the record request. Responding with “not applicable” to certain items in the record request created confusion as to what exactly that meant. We also think there may be problems with the wording in the request itself. Therefore, we invite Petitioner to work with the records ombudsman to draft a request that defines the target records more clearly and submit that new request to Respondent. We also encourage Respondent to communicate more clearly with Petitioner in the new request; to articulately explain that upon searching, the requested records don’t exist, rather than providing an ambiguous “not applicable.” We hope that with better communication between the parties, Petitioner will be satisfied with the results of the new request regardless of what the results might be.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 30 day of July 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., Chair pro tem, Williams, K., Biehler, E., Dubovik, N., and Peterson, L., unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COREY VONBERG, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent,
DECISION AND ORDER
Case No. 24-56
By this appeal, Corey Vonberg(“Petitioner”), requests records allegedly held by the Utah Department of Corrections (“Respondent”).
FACTS
On February 4, 2024, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested a “complete SOTP[1] record from August ’22 - to present,” to include the following:
Respondent denied the initial request on the grounds that SOTP notes and records are classified as controlled under Section 305. Petitioner appealed to the Respondent’s chief administrative officer (“CAO”), who partially upheld the appeal. The CAO stated that the therapy notes were classified correctly and appropriately upheld, but upon an additional search, the Respondent located one record classified as private—the Sex Offender Treatability Assessment. Since Petitioner is the subject of the private record, it was disclosed to him. Petitioner then appealed the denied records to the State Records Committee (“Committee”).
In preparing for the hearing, the Respondent conducted an internal review of the requested records and concluded that they were classified incorrectly. Rather than being classified as protected, the Respondent reclassified them as private, which entitled Petitioner to copies since he is the subject of the records. The Respondent then sent records that it considered responsive to the request with some minor redactions. However, the Respondent concedes that there is one outstanding responsive contract that could not be located prior to the hearing: an SOTP contract signed by Petitioner.
On July 18, 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 Respondent has adequately responded to the request.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). When a person submits a GRAMA request to a governmental entity, the basic standard in response is for the entity to perform a reasonable search for the requested records. Utah Code § 63G-2-201(7)(b). When defending its search efforts before the Committee, a governmental entity must show by a preponderance of the evidence that its search efforts were reasonable. Utah Administrative Rule R35-1-3(1)(a). If the entity satisfies that requirement, then the burden shifts to the requester to show by a preponderance of the evidence that the search efforts were not reasonable. Utah Administrative Rule R35-1-3(1)(b).
Whether Petitioner is entitled to the missing contract is not in question. At the hearing, the Respondent’s witness, Dr. Waltrip testified about the search efforts. From her testimony, the efforts were quite robust. The Respondent searched where all SOTP records are stored, including two document portals referred to as ODOCA and OTRACK. The Respondent also searched its Google drive and records, paper files within its staff’s control, the cubicle where the intern sat who worked on the contract, the intern’s supervisor’s records and files, email accounts and a Google Vault search.
However, despite these efforts, the Respondent concedes that the contract must exist and that if it had more time, it’s possible that it will turn up. It also concedes that there is at least one more area that it could search—the intern’s iDrive. Accordingly, we find that the Respondent should be allowed more time to finish its search. Additionally, we find that the Respondent has satisfied its duty to produce all other responsive documents but for the outstanding contract.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall perform another search for the remaining responsive record which is to include searching the intern’s iDrive who managed and possessed the document. All other documents Petitioner has requested have either been delivered or a reasonable search has been performed and the Respondent has satisfied its duty for producing items.
Entered this 30 day of July 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committeee
Committee members Cornwall, M., Chair pro tem, Williams, K., Biehler, E., 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).
1. Sex Offender Treatment Program
",Partially Granted,2024-07-30T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
UTAH ATTORNEY GENERAL, Respondent,
DECISION AND ORDER
Case No. 24-79
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Utah Attorney General (“AGO”)(“Respondent”).
BACKGROUND
It’s helpful to outline the events that led to this appeal to better to understand the parties' arguments and our analysis. We begin with a summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023).[1] [2] The Attorney General’s Office appealed our decision to the district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), which essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor's signature if two-thirds of each house of the legislature approved it, which they did. At roughly 8:00 pm that evening, the Governor signed SB 240 into law with immediate effect.[3] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 12:48 am, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records reflecting Sean Reyes’ calendar and/or appointments from 2013 through Feb 2025.” Then, at 5:18 pm on the same day, Petitioner submitted a second request to the Respondent for additional records. Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2018, through March 1, 2025.” The request then named seven individuals.
In a response dated March 7, 2024, the Respondent informed Petitioner that it doesn’t maintain an official calendar or record of appointments for the subject individuals due to the fact that Subsection 63G-2-103(25)(b)(ix) excludes “daily calendar” from the definition of a “record” under GRAMA.
Petitioner filed an appeal to the Respondent’s chief administrative officer (“CAO”) who denied the appeal.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 2024, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee consolidated the two GRAMA requests, 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Daily Calendars Are Not Records Under GRAMA
The Respondent argues that Utah Code § 63G-2-103(25)(b)(ix) clearly excludes “daily calendars” from the definition of “record,” and therefore it properly denied the record request. But this argument assumes that the 2024 version of GRAMA applies to the request. It does not.
Petitioner submitted his request after business hours on February 28th but before SB 240 was signed into law. In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribune v. State Records Committee, 2019 UT 68, ¶1 n.1 where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow in suit in our determination of which version of GRAMA should be analyzed. Consequently, the 2023 version of GRAMA governs the request, and under that version, only personal calendars are excluded from the definition of “record.” Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
2. Request After Business Hours
The Respondent next argues that the 2024 version of GRAMA applies because Petitioner submitted his GRAMA request after work hours on the day SB 240 was signed into law, and because the request wasn’t received and processed until the next day, the new law governs. In support of this argument, the Respondent cites Utah Administrative Rule R105-2-2 which states that record requests received after regular business hours (8:00 am to 5:00 pm) will be deemed received the following business day.
However, this argument cuts against both case law and GRAMA itself. As discussed above, Utah courts have clearly indicated on numerous occasions that GRAMA is applied at the time the record request is made. Petitioner made the request on February 28th before SB 240 was signed into law. Therefore, the 2023 version of GRAMA applies. When it comes to the business hours issue, we find that GRAMA case law indicates that business hours are immaterial.
Additionally, Section 63G-2-307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added).
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement on the governmental entity is to classify the record when it is requested; not when it was received, and not subject to business hours. In this case, because the request was made before SB 240 was signed, classification would have to have been made under the 2023 version of GRAMA. Consequently, we find that Section 307 of GRAMA and the case law such as Schroeder reinforce the notion that GRAMA applies the moment a request is made irrespective of the time of day.
3. The Retroactive Effect of SB 240
To be sure that the 2023 version of GRAMA applies, we next take a look at whether SB 240 could be retroactive in its application.
As an initial matter, newly codified laws do not apply retroactively unless there is an express provision in the bill declaring it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated “so, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240 to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. Additionally, the Respondent points out that the General Retention Schedule also treats calendars as non-records. According to the Respondent, these two arguments show that calendars never were intended to be records under GRAMA, and SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law and, because they were clarifications, the amendments applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, the question we must answer is whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions in general are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are per se procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[4] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Gressman and Waddoups, supra.
4. The Breadth of the Request
Respondent argues that the request is unreasonably broad, and because of that, it is not required to fill the request. We disagree.
It is true that a governmental entity must provide the requested record if, among other things, the requester “identifies the record with reasonable specificity.” Utah Code § 63G-2-201(6)(b). But this requirement doesn’t require the requester to identify the subject record with exact precision. All that is required under GRAMA is that the request describe the records in a manner that a reasonable person can understand what is being requested. Dodd v. Salt Lake City, Decision and Order no. 24-03, Utah State Records Committee (entered Jan. 16, 2024).
Here, the request sought records relating to calendars and appointments for specifically named individuals within a targeted dated range. This request is specific enough as it names the individuals and provides a date range for which the record pertains to. Further, records relating to calendars and appointments is a reasonable description to show that Petitioner seeks calendars and appointments, including any other records that relate to the calendar entries.
We find that the request meets the “reasonable specificity” requirement in Subsection 201(6)(b). If Respondent desires further clarity or desires a narrower scope, it may seek clarity from Petitioner.
5. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled, sometimes it occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that they constitute draft entries that are subject to an eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
6. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
7. Fees
Finally, we are aware that production of the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for the compilation and production of the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., Cornwall, M., Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. We allowed the Attorney General to redact certain information in his calendar prior to its disclosure. Knox, Decision and Order no. 23-22.
2. Moving forward, we will refer to this decision as “Knox I.”
3. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
4. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
",Partially Granted,2024-10-04T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
HEBER CITY, Respondent,
DECISION AND ORDER
Case No. 24-77
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Heber City (“Respondent”).
BACKGROUND
To better understand the parties’ arguments and our analysis, it’s helpful to outline the events that led to this appeal. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA, and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), that essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the approval of the governor’s signature if it was approved by two-thirds of the members of each house of the legislature, which it was. At roughly 8:00 pm that evening, the Governor signed SB 240 into law.[1] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 5:36 pm, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2018, through March 1, 2025.” The request then named five individuals.
In a response dated March 6, 2024, Respondent denied access to the records citing that daily calendars do not constitute a record, pursuant to § 63G-2-103(25). Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”), who denied the appeal.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Time Computation Under Utah Code
The Respondent's first argument is that the 2024 version of GRAMA is controlling because, under Section 68-3-7, GRAMA became operative the day after Petitioner submitted his request.
Section 68-3-7 provides that when an act is performed, time is computed by excluding the first day. Utah Code § 68-3-7(1)(a). Under GRAMA, when a record request is received, the governmental entity customarily has 10 business days to respond to the request. Utah Code § 63G-2-204(4)(b). Thus, according to the Respondent, because of Section 68-3-7, the 10-day clock to respond to a GRAMA request begins one day after the request is submitted. Consequently, the version of GRAMA that is in effect on day one of the 10-day response period is the one that governs the request. Regarding the request at issue, the argument is that although Petitioner submitted his request on the same day but prior to the Governor signing SB 240, the response time began running on the day after the request was submitted and when SB 240 went into law.
The time computation statute governs when a statutorily prescribed act is to be performed. This is made clear by the Subsection (1): “A person shall compute the period of time provided by law to perform an act . . .” Utah Code § 68-3-7(1) (emphasis added). Then, GRAMA states that the entity has 10 business days “after receiving a written request” to issue a formal response to the requester. Utah Code § 63G-2-204(4)(b). Read together, we agree that these statutes mean that the day the request is submitted is excluded from any statutory time periods and the clock begins on the following day. However, day 1 of the response period is not the point in time where we look to see which version of GRAMA is operative.
In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribute v. State Records Committee, 2019 UT 68, ¶1 n.1 where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in determining which version of GRAMA should be analyzed.
The Respondent goes on to argue that Section 63G-2-307 supports the idea that the 2024 version of GRAMA should apply because SB 240 was in effect when it classified the record. We disagree.
Section 307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added). Additionally, “[a] governmental entity may redesignate . . . or reclassify a record . . . at any time.” Utah Code § 63G-2-307(3). The Respondent argues that because Subsection 307(2) allows it to classify the record “at any time,” GRAMA becomes operational when that classification is made. Thus, because it classified the calendars after SB 240 went into effect, the 2024 version of GRAMA controls, and the calendars aren’t records.
We note that Section 307 deals with the classification of “records”—a defined term under GRAMA. Whether the requested calendars are “records” subject to GRAMA is the core issue of this appeal. However, even assuming that Section 307 could apply to the requested calendars, the problem with this argument is that Subsection 307(2) actually supports Petitioner’s position.
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement for the governmental entity is to classify the record when it is requested. That would require classification under the 2023 version of GRAMA when Petitioner made his request. Subsection 307(3) then permits a reclassification at any time after the record has been classified. Consequently, even if Section 307 is applied here, it is unhelpful to the Respondent since the record cannot be reclassified without first being initially classified when the request is made.
Finally, the Respondent argues that the 2024 version of GRAMA controls because it was under this version when Petitioner’s “cause of action” arose. The Respondent argues that Petitioner has no “cause of action” until his record request is denied and that under Gressman v. State of Utah¸ 2013 UT 63, it’s the cause of action that triggers GRAMA into effect, which, in this case, was after SB 240 was signed.
In Gressman, the Court analyzed the difference in retroactivity between procedural and substantive statutory amendments. The Court determined that the statutory amendments at issue were substantive and, therefore, could not be retroactive. This meant that the version of the law in place when the plaintiff’s claim arose was the controlling law. We view this as an oversimplification of Gressman.
It is true that the statute in Gressman was examined in the context of “when Mr. Gressman’s claim arose.” Gressman, ¶20. However, basing statutory effect solely on a “cause of action” is an imprecise formulation:
Instead, our cases stand for the simpler proposition that we apply the law as it exists at the time of the event regulated by the law in question. Thus, if a law regulates a breach of contract or tort, we apply the law as it exists when the alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action . . . Similarly,, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed.
State v. Clark, 2011 UT 23, ¶13 (emphasis added). From this instruction, it’s not a cause of action per se, but the event is being regulated. Since GRAMA is a unique statute that “does not contemplate adversarial combat over record requests,” we don’t believe that a cause of action must arise before the requester can gain certainty about which law will govern their request. Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25.
As discussed in greater detail below, SB 240 amended a statutory definition. The amendment substantively affected which records could be requested under GRAMA. As a result, the event that SB 240 regulates is not that which gives rise to a cause of action (the denial of the request) but the request itself. Therefore, we find the “cause of action” argument is unpersuasive.
Ultimately, we find that the case law cited above and the plain language of Section 307 shows that the requester has the right to rely on the version of GRAMA in effect when the record request was submitted, which, in this case, was the 2023 version of GRAMA.
2. The Retroactive Effect of SB 240
The Respondent argues that even if GRAMA was triggered into effect when Petitioner’s request was made, the request was still correctly denied because SB 240 applied to his request retroactively.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[2] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Waddoups, supra.
The Respondent brings Wasatch County v. Okelberry 2015 UT App 192 to our attention. That decision was rendered two years after Gressman and the Court held that a seemingly purely clarifying amendment retroactively applied. The Respondent argues that, as a more recent case than Gressman, Okelberry supports—and even controls—the proposition that a simple clarifying amendment has a retroactive effect. We are in no position to guess why the Okelberry court ignored the repudiation given in Gressman and reinforced in Waddoups, but regardless, we find that Okelberry is distinguishable in its facts.
In that case, the Supreme Court interpreted the “continuous use” requirement found in Section 72-5-104(1) (2009). The legislature disagreed with the Court’s definition and amended the statute in direct response to the Court’s decision. The amendment clarified the legislative intent behind “continuous use” by essentially defining the term and establishing elements that must be satisfied to trigger the statute’s application. Appeals then ensued over whether the legislative amendment applied retroactively.
Notably different from our case is that in Okelberry, is that the legislature’s amendment clarified the meaning of the term “continuously used.” Lawmakers established a definition to guide judicial interpretation. In our case, the legislature didn’t clarify the meaning of “daily calendars.” Instead, it made “daily calendars” its own line item in the list of items that don’t constitute a record. Thus, even though the legislature attempted to “clarify” its original intent behind daily calendars and GRAMA, it created an all-new definitional term after Judge Corum determined the statute's plain language was clear. The contrast between Okelberry and our case is clear: the former created a definition; the latter eliminated a right. The cases are not analogous, and Gressman still controls our decisions.
3. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that they constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
4. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
5. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., chair pro tem, Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
2. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
",Partially Granted,2024-10-04T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
DAVIS COUNTY, Respondent,
DECISION AND ORDER
Case No. 24-82
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Davis County (“Respondent”).
BACKGROUND
It’s helpful to outline the events that led to this appeal to better understand the parties' arguments and our analysis. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), which essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor's signature if two-thirds of each house of the legislature approved it, which they did. At roughly 8:00 pm that evening, the Governor signed SB 240 into law.[1] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
At 1:58 am on February 28, 2024, Petitioner sent a public record request to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested: “copies of all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2019, through March 1, 2025.” The request then named five individuals.
Petitioner did not receive a formal denial within the statutory response period. The only response Petitioner received was from the County Chief Deputy Clerk on March 5, 2024, stating that “The litigation regarding the records mentioned in your request is still ongoing as there is still time allotted for an appeal of Judge Corum’s decision. As such, Davis County cannot respond to this request.”
On March 7, 2024, Petitioner gave notice to Respondent that he was appealing the de facto denial to its chief administrative officer (“CAO”). The CAO denied the appeal, stating that due to the passage of SB 240, a daily calendar is not a public record.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 2024, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the parties' written materials, oral testimony, and oral arguments. 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Daily Calendars Are Not Records Under GRAMA
In the Respondent’s Statement of Facts, it argues that because SB 240 was signed into law, daily calendars are not records subject to GRAMA. But this argument assumes that the 2024 version of GRAMA applies to the request. It does not.
Petitioner submitted his request after business hours on February 28th but before SB 240 was signed into law. In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribune v. State Records Committee, 2019 UT 68, ¶1 n.1, where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in our determination of which version of GRAMA should be analyzed.
Although Petitioner submitted his request the same day that SB 240 was signed, the submission was many hours before SB 240 became effective. Consequently, the 2023 version of GRAMA governs the request, and under that version, only personal calendars are excluded from the definition of “record.” Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
2. The Retroactive Effect of SB 240
To be sure that the 2023 version of GRAMA applies, we next take a look at whether SB 240 could be retroactive in its application.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “so, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. Additionally, the Respondent points out that the General Retention Schedule also treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[2] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Gressman and Waddoups, supra.
3. GRAMA Requires Classification at the Time the Request is Made
Additionally, GRAMA supports the notion that the request is the triggering event that determines which version applies. Section 63G-2-307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added).
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement of the governmental entity is to classify the record when it is requested, not when it was received, and not subject to business hours. In this case, because the request was made before SB 240 was signed, classification would have to be made under the 2023 version of GRAMA. Consequently, we find that Section 307 of GRAMA and the case law such as Schroeder reinforce the notion that GRAMA applies the moment a request is made, irrespective of the time of day.
4. The Breadth of the Request
Respondent argues that the request is unreasonably broad and, because of that, it is not required to fill the request. We disagree.
It is true that a governmental entity must provide the requested record if, among other things, the requester “identifies the record with reasonable specificity.” Utah Code § 63G-2-201(6)(b). But this requirement doesn’t require the requester identify the subject record with exact precision. All that is required under GRAMA is that the request describes the records in a manner that a reasonable person can understand what is being requested. Dodd v. Salt Lake City, Decision and Order no. 24-03, Utah State Records Committee (entered Jan. 16, 2024).
Here, the request sought records relating to calendars and appointments for specifically named individuals within a targeted date range. This request is specific enough as it names the individuals and provides a date range for which the record pertains. Further, records relating to calendars and appointments are a reasonable description to show that the Petitioner seeks calendars and appointments, including any other records that relate to the calendar entries.
We find that the request meets the “reasonable specificity” requirement in Subsection 201(6)(b). If Respondent desires further clarity or desires a narrower scope, it may seek clarity from Petitioner.
5. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that future calendar events constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). And although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
6. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
7. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., Cornwall, M., Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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 the 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).
1. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
2. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LYNN DAVID, Petitioner, v.
WASATCH COUNTY SHERIFF’S OFFICE, Respondent,
DECISION AND ORDER
Case No. 24-70
By this appeal, Lynn David (“Petitioner”), requests records allegedly held by Wasatch County Sheriff’s Office (“Respondent”).
FACTS
On February 20, 2024, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records related to an internal investigation of Wasatch County Deputy Brandon Rose for alleged misconduct that occurred in connection with an incident that involved Petitioner in January 2017. Specifically, Petitioner requested: “complete interviews and other notes, description and final report of investigation. This would include the background concerning the investigation and who assigned the investigation.”
The Respondent failed to respond to the request within 10 business days as required by GRAMA, thus constituting a de facto denial. Petitioner filed an appeal to Respondent’s chief administrative officer (“CAO”). The CAO did review the appeal and issued a formal denial. The reasons for that denial were twofold: First, the CAO argued, records related to internal investigations involving deputies are not governed by GRAMA and can only be released pursuant to Utah Code § 17-30-19. Because the conditions of § 17-30-19 were not met, the requested records were not released. Second, the CAO argued that if the records were subject to GRAMA, the they were private and protected pursuant to Utah Code §§ 63G-2-302(2)(a), -301(3)(o), -305(10)(a) & (e), and -301(25).
Petitioner appealed to the State Records Committee (“Committee”). On September 19, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, if a record is governed by another state statute, then access to the record is governed by that other statute. Utah Code § 63G-2-107(1)(a). Additionally, records correctly classified as private or public under Sections 63G-2-302 and 63G-2-305 are not considered public records. Utah Code § 63G-2-201(3)(a).
We begin by looking at the CAO’s claim that the records are governed not by GRAMA, but by Section 17-30-19. Title 17, Chapter 30 establishes the “merit system commission,” which, among other duties, is charged with holding disciplinary hearings concerning county peace officers. See Utah Code §§ 17-30-3; 17-30-19. In pertinent part, Section 19 provides:
(1) Each person who orders the demotion, reduction in pay, suspension, or discharge of a merit system officer for any cause set forth in Section 17-30-18 shall:
(a) file written charges with the commission; and . . .
(2) (a)(i) An officer who is the subject of charges under Subsection
(1) may, within 10 days after service of the charges,
appeal in writing to the commission.
(ii) In the absence of an appeal, a copy of the charges under Subsection (1) may not be made public without the consent of the officer charged.
Thus, under Section 17-30-19, the disciplinary charges filed with the merit system commission against a county officer are not public records “in the absence of an appeal.” To support its claim that Section 17-30-19 supports its argument, Respondent points us to Young v. Salt Lake County, 2002 UT 70, which held that a terminated officer’s unappealed charges were not public records subject to disclosure under GRAMA. Id., ¶18.
However, neither Section 17-30-19 nor Young apply to the appeal before us because no charges against Deputy Rose were ever filed with the merit system commission. Consequently, the records Petitioner seeks are governed squarely by GRAMA.
At the hearing, we reviewed the disputed records in camera. From our review, we found that the records contain no sustained disciplinary charges or action against Deputy Rose. As a result, we disagree with Respondent that the records are classified as protected under Section 63G-2-305. Because the records show no sustained charges, they also don’t fall under the public classification of Section 63G-2-301(3)(o). This means that the records Petitioner seeks are records that are part of Deputy Rose’s personnel file.
When it comes to employees’ personnel records under GRAMA, only general information is deemed public. See e.g., Utah Code § 63G-2-301(2)(b). Subsection 302(2)(a) creates a broad protection in public employee records by making private “records concerning a current or former employee of . . . a governmental entity, including performance evaluations and personal status information. . . .” Utah Code § 63G-2-302(2)(a). Because Deputy Rose is the subject of the records that Petitioner seeks, we agree with Respondent on this point: that they are classified as private under Subsection 302(2)(a).
Upon finding that a record is classified as private under GRAMA, we are to then weigh “the various interests and public policies pertinent to the classification and disclosure or nondisclosure” and then order that the records be released to the requester if “the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b).
Here, we find that the policy interest behind Subsection 302(2)(a) outweighs the interest favoring disclosure. The government has a strong interest in protecting its employees’ personnel records, information, and privacy, especially when allegations of wrongdoing were never sustained. The employee’s reputation and privacy in those instances are worth protecting. Although we understand that Petitioner has an interest in the records because of his personal interaction with Deputy Rose that resulted in the records being created, this personal interest, without more, is not enough to equal or outweigh the Respondent’s particular interests of protecting its employee’s privacy.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 30 day of September 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair Pro tem, Utah State Records Committee
Committee members Cornwall, M., chair pro tem, Buchanan, E., Biehler, E., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TAYLOR HARTMAN on behalf of the UTAH INVESTIGATIVE JOURNALISM PROJECT, Petitioner, v.
BEAVER VALLEY HOSPITAL. Respondent.
DECISION AND ORDER
Case No. 20-63
By this appeal, Petitioner, Taylor Hartman on behalf of the Utah Investigation Journalism Project, seeks access to records allegedly held by Respondent, Beaver Valley Hospital.
FACTS
On or about May 28, 2020, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records relating to the financial records of Beaver Valley Hospital including payees who received funding from the hospital, administrative fees and other charges including management charges by the hospital, and salary information for administrators.
On June 4, 2020, Respondent granted, in part, Petitioner’s request and provided responses to each request. Respondent also noted that there would be a fee associated with gathering, preparing, and shipping costs to produce records.
The parties attempted to come to a resolution but were unable, and Petitioner thereafter filed an appeal with the State Records Committee (“Committee”). On December 10, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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. The name, gross compensation, job title, job description, and business address of a current or former employee or officer of a governmental entity is generally public. Utah Code § 63G-2-301(2)(b).
3. In response to a records request, a governmental entity is not required to compile, format, manipulate, package, summarize, or tailor information. Utah Code § 63G-2-201(8)(b). Additionally, a governmental entity is not required to fill a person’s records request if the record requested is publicly accessible online and the governmental entity specifies to the person requesting the record where the record is accessible online. Utah Code § 63G-2-201(8)(e).
4. After having reviewed the written and oral arguments of the parties, the Committee finds that the salary information for the administrators should be given to Petitioner pursuant to Utah Code § 63G-2-301(2)(b). However, Respondent is not required to compile, format, manipulate, package, summarize, or tailor information for Petitioner pursuant to Utah Code § 63G-2-201(8)(b). Further, some of the information requested by Petitioner is accessible online, and Respondent should direct Petitioner to where the record is accessible online as required by Utah Code § 63G-2-201(8)(e)(ii)(A).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Taylor Hartman on behalf of the Utah Investigative Journalism Project 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.
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).
Entered this 21 day of December 2020
BY THE STATE RECORDS COMMITTEE
KENNETH WILLIAMS
Chair pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 21-10
By this appeal, Petitioner, Steven Onysko, appeals the decision of Respondent, the Utah Attorney General’s Office, to deny his request for a fee waiver for records obtained from Respondent.
FACTS
On November 11, 2019, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to the Utah Attorney General’s Office (“AG’s Office”). Mr. Onysko requested records regarding legal services procured by the AG’s Office from a specified law firm regarding legal matters related to Paul G. Amann. Mr. Onysko also requested a fee waiver for the records. On May 15, 2020, Mr. Onysko made a similar request to the AG’s Office for records “since and including January 1, 2020, to the present.” Both requests were denied by the AG’s Office.
Mr. Onysko appealed both denials to the State Records Committee (“Committee”). On January 14, 2021, the Committee held a public hearing electronically, allowing the parties to present their arguments and any evidence supporting their arguments. The Committee unanimously voted to continue the resolution of the appeals to the next available Committee hearing date in order to allow the Committee the necessary time to complete an in camera review of the records. See, Onysko v. Utah Atty. Gen., State Records Committee Case No. 21-05 (Jan. 25, 2021). At an electronic hearing held on February 11, 2021, after carefully considering the requested relief of the parties, the Committee 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 § 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. Contracts entered into by a governmental entity, and any account, voucher, or contract that deals with the receipt or expenditure of funds by a governmental entity, are normally public records subject to restrictions under Utah Code §§ 63G-2-201(3)(b), -302, -304, or -305. Utah Code § 63G-2-301(3)(d) & (e).
3. After having reviewed the records in camera, the Committee finds that the requested records are public pursuant to Utah Code § 6G-2-301(3)(d) & (e), but are subject to redaction because the records also contain non-public information. See, Utah Code § 63G-2-308.
4. Concerning Mr. Onysko’s request for a fee waiver, a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b).
5. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a).
6. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
7. After having considered the arguments of the parties, and hearing oral arguments and testimony, the Committee finds that AG Office’s denial of Mr. Onysko’s request for a fee waiver was not an unreasonable denial. Considering the amount of the fee, the nature of the request, and the alleged public interest in the records, the AG’s Office’s denial of the request for a fee waiver was reasonable.
ORDER
THEREFORE, IT IS ORDERED THAT the appeals of Petitioner, Steven Onysko, are 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.
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).
Entered this 22 day of February 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
IAN COOPERSTEIN, Petitioner, v.
UNIVERSITY OF UTAH, Respondent,
DECISION AND ORDER
Case No. 24-62
By this appeal, Ian Cooperstein (“Petitioner”), requests records allegedly held by University of Utah (“Respondent”).
FACTS
To date, Petitioner has submitted more than 200 record requests to the University under the Government Records Access and Management Act “GRAMA”), 90% of which were submitted in 2020. He submitted 114 of those requests in a span of less than three days. When the Respondent received the 114 requests in July of 2020, it communicated to Petitioner that it was experiencing extraordinary circumstances and couldn’t fill them within the 10 days prescribed by GRAMA. The Respondent further explained to Petitioner that it anticipated that responding to all of his requests would take more than a year. In response to the University’s communication, Petitioner appealed the estimated time to respond to his requests and the Respondent’s chief administrative officer denied the appeal.
Afterward, the parties agreed to mediate regarding the processing of his requests. The mediation resulted in Petitioner creating a list where he prioritized the order in which the Respondent would process his requests, consecutively one after another instead of their submission (“Prioritization Agreement”). In filling some of these requests, the Respondent assessed fees which Petitioner either paid and then canceled the payment or never paid at all. From there, the relations between the parties further eroded, resulting in the Respondent appealing to declare Petitioner a vexatious requester, and Petitioner filing his own appeal seeking our review of the outstanding record requests.
On August 15, 2024, the Committee held a hearing on Petitioner’s appeal 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 the propriety of the Respondent’s responsiveness to the pending requests.
STATEMENT OF REASONS FOR DECISION
When a governmental entity receives a request for records, it has 10 business days to either approve the request and produce the record, deny the request, or inform the requester that because of extraordinary circumstances it cannot fill the request at the time. Utah Code § 63G-2-204(4)(b)(i)-(iv). If extraordinary circumstances do exist, the governmental entity must include in its response (a) a description of the circumstances that constitute the extraordinary circumstances; and (b) the date when the records will be available. Utah Code § 63G-2-204(4)(b)(iv)(A)-(B). Under Subsection 204(6), GRAMA prescribes what may be considered an extraordinary circumstance, among that list, and pertinent to this appeal, are when “the request is for a voluminous quantity of records . . . containing a substantial number of records,” “the requester seeks a substantial number of records . . . within five working days of each other,” and when “the governmental entity is currently processing a large number of record requests.” Utah Code § 63G-2-204(6)(c)-(d).
Additionally, in processing a request, GRAMA allows a governmental entity to charge a reasonable fee for records when the request requires the entity to “compile a record in a form other than that normally maintained by the governmental entity.” Utah Code § 63G-2-203(2)(a). If a fee isn’t paid, a governmental entity may then require payment of the back-owing fee before beginning to process a future request. Utah Code § 63G-2-203(8)(a)(ii).
In looking at the evidence and hearing the testimony, it’s apparent that there is a misunderstanding of the Prioritization Agreement between the parties. Petitioner seems to have understood that the prioritized records would be released according to a set schedule, whereas the Respondent understands their duty is to provide timely updates and notices as they worked to process the requests. Moreover, Petitioner expected communications via direct emails whereas Respondent provided required notices through the records portal. Since the agreement was not made available for review, we direct the parties to review the agreement to ensure the parties are in agreement, and we advise Petitioner to regularly check the records portal for communications and updates from the University concerning his request.
We find it concerning that the Respondent cites “extraordinary circumstances” to delay processing a record request and the result is delaying the records’ production for several years. While we’re sympathetic to the Respondent being burdened with a substantial number of requests to fill, we are skeptical at the apparent inefficiency at not even filling half of the requests in a four-year period. With that degree of backlog occurring, it seems that as much as the problem is a large number of requests, it’s also an operational problem that needs to be adequately addressed and remedied. GRAMA was intended to “promote the easy and reasonable access” to public records, and a governmental entity should reasonably be prepared for large amounts of record requests from time to time. For an individual to have to wait several years for requests to be filled is anything but easy and reasonable.
With that said, we find Petitioner has his own responsibility in ensuring delivery of the records he seeks. As there are outstanding fees and payments he’s voided after submission, the Respondent has the right to withhold records until those fees are paid and his account for records already received is brought current.
With that said, we address the parties’ situation moving forward. We remind the Respondent that as much as it has the right to charge fees for having to compile responsive records in a form other than how they are normally maintained, the fee must still be reasonable and in accordance with the instructive guidance set forth in Graham v. Davis County Solid Waste Mngm’t and Energy Recovery Special Service Dist., 1999 UT App 136. In that case, the Court held that “sound public policy requires an agency, prior to compiling records and imposing a fee, inform the requestor that fees will be assessed and, if so desired, allow the requestor to modify or withdraw the request based on this information.” Id. ¶27. Additionally, Graham also makes clear that the burden is on the governmental entity to show that the records had to be compiled in an irregular form. Id. ¶¶26-28. If Petitioner believes a fee is improper under Section 203 and Graham, he may appeal for our review.
In conclusion, we find that, with the Respondent keeping in accordance with Graham, and Petitioner paying the appropriate fees and regularly checking the portal for communicative updates concerning the requested records, the Respondent shall continue processing the requests as quickly as possible so as to effectuate GRAMA’s intent.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED. The Respondent shall work diligently to quickly deliver the responsive records provided that Petitioner pay the back-owing fees and all proper fees moving forward.
It is so ordered.
Entered this 26 day of August 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., chair pro tem, Williams, K., Biehler, E., Buchanan, M., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
SALT LAKE CITY, Respondent,
DECISION AND ORDER
Case No. 24-76
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Salt Lake City (“Respondent”).
BACKGROUND
To better understand the parties’ arguments and our analysis, it’s helpful to outline the events that led to this appeal. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA, and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), that essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor’s signature if it was approved by two-thirds of the members of each house of the legislature, which it was. At roughly 8:00 pm that evening, the Governor signed SB 240 into law with immediate effect.[1] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 2:04 am, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2019, through March 1, 2025.” The request then named two individuals.
In a response dated March 6, 2024, Respondent denied access to the records citing that daily calendars do not constitute a record, pursuant to § 63G-2-103(25)(b)(ix), Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”) who upheld the denial.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Time Computation Under Utah Code
The Respondent's first argument is that the 2024 version of GRAMA is controlling because, under Section 68-3-7, GRAMA became operative the day after Petitioner submitted his request.
Section 68-3-7 provides that when an act is performed, time is computed by excluding the first day. Utah Code § 68-3-7(1)(a). Under GRAMA, when a record request is received, the governmental entity customarily has 10 business days to respond to the request. Utah Code § 63G-2-204(4)(b). Thus, according to the Respondent, because of Section 68-3-7, the 10-day clock to respond to a GRAMA request begins one day after the request is submitted. Consequently, the version of GRAMA that is in effect on day one of the 10-day response period is the one that governs the request. Regarding the request at issue, the argument is that although Petitioner submitted his request on the same day but prior to the Governor signing SB 240, the response time began running on the day after the request was submitted and when SB 240 went into law.
The time computation statute governs when a statutorily prescribed act is to be performed. This is made clear by the Subsection (1): “A person shall compute the period of time provided by law to perform an act . . .” Utah Code § 68-3-7(1) (emphasis added). Then, GRAMA states that the entity has 10 business days “after receiving a written request” to issue a formal response to the requester. Utah Code § 63G-2-204(4)(b). Read together, we agree that these statutes mean that the day the request is submitted is excluded from any statutory time periods and the clock begins on the following day. However, day 1 of the response period is not the point in time where we look to see which version of GRAMA is operative.
In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribute v. State Records Committee, 2019 UT 68, ¶1 n.1 where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in determining which version of GRAMA should be analyzed.
The Respondent goes on to argue that Section 63G-2-307 supports the idea that the 2024 version of GRAMA should apply because SB 240 was in effect when it classified the record. We disagree.
Section 307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added). Additionally, “[a] governmental entity may redesignate . . . or reclassify a record . . . at any time.” Utah Code § 63G-2-307(3). The Respondent argues that because Subsection 307(2) allows it to classify the record “at any time,” GRAMA becomes operational when that classification is made. Thus, because it classified the calendars after SB 240 went into effect, the 2024 version of GRAMA controls, and the calendars aren’t records.
We note that Section 307 deals with the classification of “records”—a defined term under GRAMA. Whether the requested calendars are “records” subject to GRAMA is the core issue of this appeal. However, even assuming that Section 307 could apply to the requested calendars, the problem with this argument is that Subsection 307(2) actually supports Petitioner’s position.
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement for the governmental entity is to classify the record when it is requested. That would require classification under the 2023 version of GRAMA when Petitioner made his request. Subsection 307(3) then permits a reclassification at any time after the record has been classified. Consequently, even if Section 307 is applied here, it is unhelpful to the Respondent since the record cannot be reclassified without first being initially classified when the request is made.
Finally, the Respondent argues that the 2024 version of GRAMA controls because it was under this version when Petitioner’s “cause of action” arose. The Respondent argues that Petitioner has no “cause of action” until his record request is denied and that under Gressman v. State of Utah¸ 2013 UT 63, it’s the cause of action that triggers GRAMA into effect, which, in this case, was after SB 240 was signed.
In Gressman, the Court analyzed the difference in retroactivity between procedural and substantive statutory amendments. The Court determined that the statutory amendments at issue were substantive and, therefore, could not be retroactive. This meant that the version of the law in place when the plaintiff’s claim arose was the controlling law. We view this as an oversimplification of Gressman.
It is true that the statute in Gressman was examined in the context of “when Mr. Gressman’s claim arose.” Gressman, ¶20. However, basing statutory effect solely on a “cause of action” is an imprecise formulation:
Instead, our cases stand for the simpler proposition that we apply the law as it exists at the time of the event regulated by the law in question. Thus, if a law regulates a breach of contract or tort, we apply the law as it exists when the alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action . . . Similarly,, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed.
State v. Clark, 2011 UT 23, ¶13 (emphasis added). From this instruction, it’s not a cause of action per se, but the event is being regulated. Since GRAMA is a unique statute that “does not contemplate adversarial combat over record requests,” we don’t believe that a cause of action must arise before the requester can gain certainty about which law will govern their request. Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25.
As discussed in greater detail below, SB 240 amended a statutory definition. The amendment substantively affected which records could be requested under GRAMA. As a result, the event that SB 240 regulates is not that which gives rise to a cause of action (the denial of the request) but the request itself. Therefore, we find the “cause of action” argument is unpersuasive.
Ultimately, we find that the case law cited above and the plain language of Section 307 shows that the requester has the right to rely on the version of GRAMA in effect when the record request was submitted, which, in this case, was the 2023 version of GRAMA.
2. The Retroactive Effect of SB 240
The Respondent argues that even if GRAMA was triggered into effect when Petitioner’s request was made, the request was still correctly denied because SB 240 applied to his request retroactively.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[2] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Waddoups, supra.
The Respondent brings Wasatch County v. Okelberry 2015 UT App 192 to our attention. That decision was rendered two years after Gressman and the Court held that a seemingly purely clarifying amendment retroactively applied. The Respondent argues that, as a more recent case than Gressman, Okelberry supports—and even controls—the proposition that a simple clarifying amendment has a retroactive effect. We are in no position to guess why the Okelberry court ignored the repudiation given in Gressman and reinforced in Waddoups, but regardless, we find that Okelberry is distinguishable in its facts.
In that case, the Supreme Court interpreted the “continuous use” requirement found in Section 72-5-104(1) (2009). The legislature disagreed with the Court’s definition and amended the statute in direct response to the Court’s decision. The amendment clarified the legislative intent behind “continuous use” by essentially defining the term and establishing elements that must be satisfied to trigger the statute’s application. Appeals then ensued over whether the legislative amendment applied retroactively.
Notably different from our case is that in Okelberry, is that the legislature’s amendment clarified the meaning of the term “continuously used.” Lawmakers established a definition to guide judicial interpretation. In our case, the legislature didn’t clarify the meaning of “daily calendars.” Instead, it made “daily calendars” its own line item in the list of items that don’t constitute a record. Thus, even though the legislature attempted to “clarify” its original intent behind daily calendars and GRAMA, it created an all-new definitional term after Judge Corum determined the statute's plain language was clear. The contrast between Okelberry and our case is clear: the former created a definition; the latter eliminated a right. The cases are not analogous, and Gressman still controls our decisions.
3. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that they constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
4. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
5. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., chair pro tem, Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
2. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
",Partially Granted,2024-10-04T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JEFFREY and AMANDA OAKES, Petitioners, v.
JORDAN SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 24-65
By this appeal, Jeffrey and Amanda Oakes (“Petitioners”), request a fee waiver and records allegedly held by Jordan School District (“Respondent”).
FACTS
On May 13, 2024, Petitioners submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, they requested copies of:
The applicable date range for the records Petitioners sought was from December 12, 2022, through May 13, 2024. Petitioners sought a fee waiver for their request as they are the subject of the records being requested.
Respondent denied the fee waiver request on May 29, 2024, stating that “Jordan School District Policy DP367 – District Records Management requires that ‘the District shall charge for all personnel time (actual salary and benefit costs) of the individual fulfilling the request necessary to facilitate such access. This includes charges for requests for information involving searches. The fee will be based on the actual salary and benefit costs of the employee fulfilling the request.’ As your request would involve employee time in the search and retrieval of responsive documents, a charge would be required per policy; therefore, your request for a fee waiver is denied.” Later, the Respondent assessed a fee of $46.00 for the records.
Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”), who upheld the denial of the fee waiver. Petitioner then appealed the CAO’s decision to the State Records Committee (“Committee”). On September 5, 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
We are to review whether the fee waiver denial was reasonable.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, a governmental entity may charge “a reasonable fee to cover the governmental entity’s actual costs of providing a record.” Utah Code § 63G-2-203(1)(a). Importantly, “governmental entities may not charge for merely assembling documents.” Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist., 1999 UT App 136, ¶26. However, an agency may “assess fees in conjunction with a record request that involves extracting materials from a larger document or source and compiling them in a different form.” Id. But in doing so, the entity may not charge a fee for “the first quarter hour of staff time spent in responding to a request.” Utah Code § 63G-2-203(5)(b)(iii). In all cases, the entity holds the discretion of whether to charge a fee or not. See Utah Code § 63G-2-203(4). And ultimately, when it comes to questions over fee waiver denials, the question we are to review is whether the denial was reasonable. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52.
From the evidence before us, it is true that Petitioners are the subject of the records they requested. However, GRAMA is clear that the law only “encourages” a fee waiver in that instance. Utah Code § 63G-2-203(4). Thus, there is no single mandate in the law that requires an entity waive a fee. We are further satisfied that the Respondent was permitted to charge a fee due to how the records had to be extracted and compiled.
However, the evidence reveals that the assessed fee did encompass the record officer’s full time spent compiling the records. This is contrary to GRAMA in that the first fifteen minutes of time may not be billed for with exception for certain circumstances not present here. Utah Code § 63G-2-203(5)(b)(iii). Accordingly, the $46.00 fee should be reduced by fifteen minutes.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED in part and GRANTED in part. The Respondent may charge a fee but may do so only after the first fifteen minutes of time spent compiling the records. Thus, the Respondent shall reduce the fee accordingly or otherwise refund the appropriate amount if the full fee has been paid.
Entered this 16 day of September 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair Pro Tem, Utah State Records Committee
Committee members Cornwall, M., chair pro tem, Buchanan, M., Dubovik, N., Peterson, L., and Kichas, J. unanimously voted in favor of and joined in this Decision and Order.
(Mr. Kichas sat for this hearing in place of Committee Member Williams as his designee.)
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
CENTERVILLE CITY, Respondent,
DECISION AND ORDER
Case No. 24-78
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Centerville City (“Respondent”).
BACKGROUND
It’s helpful to outline the events that led to this appeal to better understand the parties' arguments and our analysis. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA, and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), which essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor's signature if two-thirds of each house of the legislature approved it, which they did. At roughly 8:00 pm that evening, the Governor signed SB 240 into law.[1] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 2:04 am, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2020, through March 1, 2025.” The request then named three individuals.
In a response dated March 6, 2024, Respondent denied access to the records, citing that daily calendars do not constitute a record, pursuant to § 63G-2-103(25)(b)(ix). Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”), who denied the appeal.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 2024, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the parties' written materials, oral testimony, and oral arguments. 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Time Computation Under Utah Code
The Respondent's first argument is that the 2024 version of GRAMA is controlling because, under Section 68-3-7, GRAMA became operative the day after Petitioner submitted his request.
Section 68-3-7 provides that when an act is performed, time is computed by excluding the first day. Utah Code § 68-3-7(1)(a). Under GRAMA, when a record request is received, the governmental entity customarily has 10 business days to respond to the request. Utah Code § 63G-2-204(4)(b). Thus, according to the Respondent, because of Section 68-3-7, the 10-day clock to respond to a GRAMA request begins one day after the request is submitted. Consequently, the version of GRAMA that is in effect on day one of the 10-day response period is the one that governs the request. Regarding the request at issue, the argument is that although Petitioner submitted his request on the same day but prior to the Governor signing SB 240, the response time began running on the day after the request was submitted and when SB 240 went into law.
The time computation statute governs when a statutorily prescribed act is to be performed. This is made clear by the Subsection (1): “A person shall compute the period of time provided by law to perform an act . . .” Utah Code § 68-3-7(1) (emphasis added). Then, GRAMA states that the entity has 10 business days “after receiving a written request” to issue a formal response to the requester. Utah Code § 63G-2-204(4)(b). Read together, we agree that these statutes mean that the day the request is submitted is excluded from any statutory time periods and the clock begins on the following day. However, day 1 of the response period is not the point in time where we look to see which version of GRAMA is operative.
In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribute v. State Records Committee, 2019 UT 68, ¶1 n.1 where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in determining which version of GRAMA should be analyzed.
The Respondent goes on to argue that Section 63G-2-307 supports the idea that the 2024 version of GRAMA should apply because SB 240 was in effect when it classified the record. We disagree.
Section 307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added). Additionally, “[a] governmental entity may redesignate . . . or reclassify a record . . . at any time.” Utah Code § 63G-2-307(3). The Respondent argues that because Subsection 307(2) allows it to classify the record “at any time,” GRAMA becomes operational when that classification is made. Thus, because it classified the calendars after SB 240 went into effect, the 2024 version of GRAMA controls, and the calendars aren’t records.
We note that Section 307 deals with the classification of “records”—a defined term under GRAMA. Whether the requested calendars are “records” subject to GRAMA is the core issue of this appeal. However, even assuming that Section 307 could apply to the requested calendars, the problem with this argument is that Subsection 307(2) actually supports Petitioner’s position.
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement for the governmental entity is to classify the record when it is requested. That would require classification under the 2023 version of GRAMA when Petitioner made his request. Subsection 307(3) then permits a reclassification at any time after the record has been classified. Consequently, even if Section 307 is applied here, it is unhelpful to the Respondent since the record cannot be reclassified without first being initially classified when the request is made.
Finally, the Respondent argues that the 2024 version of GRAMA controls because it was under this version when Petitioner’s “cause of action” arose. The Respondent argues that Petitioner has no “cause of action” until his record request is denied and that under Gressman v. State of Utah¸ 2013 UT 63, it’s the cause of action that triggers GRAMA into effect, which, in this case, was after SB 240 was signed.
In Gressman, the Court analyzed the difference in retroactivity between procedural and substantive statutory amendments. The Court determined that the statutory amendments at issue were substantive and, therefore, could not be retroactive. This meant that the version of the law in place when the plaintiff’s claim arose was the controlling law. We view this as an oversimplification of Gressman.
It is true that the statute in Gressman was examined in the context of “when Mr. Gressman’s claim arose.” Gressman, ¶20. However, basing statutory effect solely on a “cause of action” is an imprecise formulation:
Instead, our cases stand for the simpler proposition that we apply the law as it exists at the time of the event regulated by the law in question. Thus, if a law regulates a breach of contract or tort, we apply the law as it exists when the alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action . . . Similarly,, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed.
State v. Clark, 2011 UT 23, ¶13 (emphasis added). From this instruction, it’s not a cause of action per se, but the event is being regulated. Since GRAMA is a unique statute that “does not contemplate adversarial combat over record requests,” we don’t believe that a cause of action must arise before the requester can gain certainty about which law will govern their request. Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25.
As discussed in greater detail below, SB 240 amended a statutory definition. The amendment substantively affected which records could be requested under GRAMA. As a result, the event that SB 240 regulates is not that which gives rise to a cause of action (the denial of the request) but the request itself. Therefore, we find the “cause of action” argument is unpersuasive.
Ultimately, we find that the case law cited above and the plain language of Section 307 shows that the requester has the right to rely on the version of GRAMA in effect when the record request was submitted, which, in this case, was the 2023 version of GRAMA.
2. The Retroactive Effect of SB 240
The Respondent argues that even if GRAMA was triggered into effect when Petitioner’s request was made, the request was still correctly denied because SB 240 applied to his request retroactively.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[2] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Waddoups, supra.
The Respondent brings Wasatch County v. Okelberry 2015 UT App 192 to our attention. That decision was rendered two years after Gressman and the Court held that a seemingly purely clarifying amendment retroactively applied. The Respondent argues that, as a more recent case than Gressman, Okelberry supports—and even controls—the proposition that a simple clarifying amendment has a retroactive effect. We are in no position to guess why the Okelberry court ignored the repudiation given in Gressman and reinforced in Waddoups, but regardless, we find that Okelberry is distinguishable in its facts.
In that case, the Supreme Court interpreted the “continuous use” requirement found in Section 72-5-104(1) (2009). The legislature disagreed with the Court’s definition and amended the statute in direct response to the Court’s decision. The amendment clarified the legislative intent behind “continuous use” by essentially defining the term and establishing elements that must be satisfied to trigger the statute’s application. Appeals then ensued over whether the legislative amendment applied retroactively.
Notably different from our case is that in Okelberry, is that the legislature’s amendment clarified the meaning of the term “continuously used.” Lawmakers established a definition to guide judicial interpretation. In our case, the legislature didn’t clarify the meaning of “daily calendars.” Instead, it made “daily calendars” its own line item in the list of items that don’t constitute a record. Thus, even though the legislature attempted to “clarify” its original intent behind daily calendars and GRAMA, it created an all-new definitional term after Judge Corum determined the statute's plain language was clear. The contrast between Okelberry and our case is clear: the former created a definition; the latter eliminated a right. The cases are not analogous, and Gressman still controls our decisions.
3. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that they constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
4. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
5. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., chair pro tem, Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
2. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
",Partially Granted,2024-10-04T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LUIS SANCHEZ, Petitioner, v.
SALT LAKE CITY CORP., Respondent,
DECISION AND ORDER
Case No. 24-66
By this appeal, Luis Sanchez (“Petitioner”), requests a refund of fees and records allegedly held by Salt Lake City (“SLC”) (“Respondent”).
FACTS
On October 27, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of; “All audio and videos created regarding the Bernardo Palacios protest of July 9, 2020, by officers with helmet numbers N53, Q20, and A107.” Petitioner also sought a fee waiver pursuant to § 63G-2-203(4).
Respondent identified eleven responsive videos in total. Each video had to be carefully reviewed, in some instances frame by frame, to properly classify the contents. On December 27, 2023, Respondent denied Mr. Sanchez’s request for a fee waiver and sent an invoice for the costs of producing the records. The invoiced costs were broken as follows: The cost of actually producing the body-worn camera (“BWC”) videos was assessed at $54 per video; and staff time to compile, review, and redact body cam footage at $37 per hour for eight hours equated a total of $296. The total invoice for the BWC footage was $350. Petitioner paid the $350 on or around January 7, 2024.
On January 11, 2024, Respondent released seven videos, each with limited redactions for information classified as protected pursuant to Utah Code § 63G-2-305(10)(e) and private pursuant to §63G-2-302(2)(d). When Petitioner received the records, only two hours and forty minutes of the footage was unredacted. Petitioner claimed the fees for that amount of video is excessive and is requesting a refund of his fees.
Respondent identified four videos as protected in their entirety pursuant to Utah Code § 63G-2-305(10)(e). Three of these protected videos were associated with the officer with helmet number N53 and one video was associated with the officer with helmet number Q20.
On January 30, 2024, Petitioner appealed to Respondent’s chief administrative officer (“CAO”), arguing that he was misled about the fee in relation to what was actually produced and that the withheld video recordings should be released due to the public interest in the footage. That appeal was denied on February 20, 2024. Petitioner then appealed to the State Records Committee (“Committee”).
On September 19, 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 the propriety of the fee, and then whether the records were properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
I. Fee Waiver Denial
Under GRAMA, “a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.” Utah Code § 63G-2-203(1)(a). In addition, if the entity must compile a record in a form other than how it normally maintains the record, the entity may charge a fee for the cost of staff time to search and retrieve the records, as well as the cost to compile the records into an organization that meets the person’s request. Utah Code § 63G-2-203(2)(a)(i)-(ii). When a fee is assessed and a waiver is denied, the ultimate question is whether the denial was reasonable. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52. However, if a requester is aggrieved by an assessed fee, they must appeal the governmental entity’s decision to its chief administrative officer “within 30 days after . . . the date the governmental entity notifies the requester that the fee waiver is denied.” Utah Code § 63G-2-401(1)(a)(ii).
The record before us shows that on December 27, 2023, Respondent notified Petitioner that his fee waiver request was denied and that a total fee of $350 would be assessed. Petitioner paid the fee a few days later but was dissatisfied with the amount of unredacted footage he received in relation to the fee paid for the redactions and productions. We are not against reviewing such appeals and have done so for before. See e.g., Oakes v. Jordan School Dist., Decision and Order no. 24-65, Utah State Records Committee (entered Sept. 16, 2024) (ruling school district overcharged requesters by charging for first 15 minutes of staff time); Coleman v. Vernal City, Decision and Order no. 24-26, Utah State Records Committee (entered Apr. 29, 2024) (ruling that fee should be refunded). However, in each case where we examined the issue of a requested fee refund, the requester had timely appealed the issue. Here, Petitioner didn’t file his appeal on the fee to the CAO until January 30, 2024, which was beyond the 30-day statute of limitations that Section 401 requires. As a result, because the propriety of the fee was not timely raised with the CAO, Petitioner has not preserved the right to appeal the issue to this Committee and it is improperly before us.
II. Classification and Restriction of Records
Under GRAMA, “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). Records that are classified as protected under Section 63G-2-305 are not public records. Utah Code § 63G-2-201(3)(a). If a record is properly classified and restricted pursuant to Subsection 63G-2-305(10), then the law requires that the requester show, “by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1).
Here, Respondent withheld four video recordings, claiming that they were all protected under GRAMA’s Subsection 305(10)(e), which protects records maintained for criminal enforcement purposes if releasing the records “reasonably could be expected to disclose investigative [ ] techniques, procedures, policies, or orders not generally known outside of government” if disclosure would interfere with enforcement efforts. Utah Code § 63G-2-305(10)(e). As Petitioner challenges whether the classification is correct, we reviewed the records in camera.
Upon review, the Committee determined that the videos were properly classified. The videos show police techniques, procedures, and orders that are employed during law enforcement purposes and are generally not known outside of government. We conclude that it is reasonable to assume that disclosing the videos could interfere with law enforcement efforts.
However, from our review, we also found that the video labeled “First Deployment Q20” contains enough public information that the footage could be disclosed in redacted form. In questioning Respondent on this issue, it agreed that the video could be redacted and disclosed. Accordingly, our findings, along with Respondent’s agreement, warrant the redacted release of the Q20 video only.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part, and DENIED in part.
Respondent shall redact the Q20 video in accordance with Subsection 63G-2-305(10)(e) and disclose it to Petitioner. The other videos at issue in this appeal may be withheld. Petitioner’s appeal on the issue of the fee is denied.
It is so ordered.
Entered this 30 day of September 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair Pro tem, Utah State Records Committee
Committee members, Cornwall, M., chair pro tem, Buchanan, M., Dubovik, N., Peterson, L., and Stringham, H. (designee for State Archivist) unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
",Partially Granted,2024-09-30T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v.
DEPARTMENT OF WORKFORCE SERVICES, Respondent.
DECISION AND ORDER
Case No. 21-15
By this appeal, Petitioner, the Center for Biological Diversity, seeks access to records allegedly held by Respondent, the Utah Department of Workforce Services. The parties stated that they have been attempting to resolve their records dispute informally and believed that if Respondent is given an additional 30 days, Respondent will be able to review the requested records, classify the records, and then provide records to Petitioner. The parties requested a continuance and the State Records Committee (“Committee”) voted to grant the request for a continuance. Since there may still be unresolved issues after records are provided to Petitioner, the parties requested that another hearing should also be scheduled. Accordingly, the Committee voted to continue the present hearing until the Committee’s May 13, 2021 scheduled hearing.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, the Center for Biological Diversity, is hereby CONTINUED.
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.
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).
Entered this 22 day of March 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LUIS SANCHEZ, Petitioner, v.
WEST JORDAN POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 21-01
By this appeal, Petitioner, Luis Sanchez, appeals the decision of Respondent, West Jordan Police Department, to deny his request for a fee waiver for records obtained from Respondent.
FACTS
On July 28, 2020, Mr. Sanchez submitted two requests for records pursuant to the Government Records Access and Management Act (“GRAMA”) regarding a specific incident involving the West Jordan Police Department. Mr. Sanchez also requested a fee waiver for the records claiming that release of the records primarily benefits the public rather than a person. On August 26, 2020, Respondent provided the records to Mr. Sanchez, but denied his request for a fee waiver. Respondent charged Mr. Sanchez $296.50 for providing the records.
Mr. Sanchez filed an appeal with West Jordan City’s Chief Administrative Officer Korban Lee on September 2 2020. Mr. Sanchez claimed that a fee waiver should have been granted because he works with “MyDefenseGuide.org and other independent media organizations where the findings of this investigation will be released to the public.” On September 17, 2020, Mr. Lee affirmed the decision denying Mr. Sanchez’s fee waiver request.
On October 1, 2020, Mr. Sanchez filed an appeal with the State Records Committee (“Committee”). On January 14, 2021, the Committee held a public hearing electronically, allowing the parties to present their arguments and any evidence supporting their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The single issue presented to the Committee in the present appeal is whether Respondent’s denial of Mr. Sanchez’s request for a fee waiver was an unreasonable denial. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b).
2. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
4. After having considered the arguments of the parties, and hearing oral arguments and testimony, the Committee finds that Respondent’s denial of Mr. Sanchez’s request for a fee waiver was not an unreasonable denial. Considering the amount of the fee, the nature of the request, and the alleged public interest in the records, Respondent’s denial of the request for a fee waiver was reasonable.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Luis Sanchez is hereby DENIED.
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.
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).
Entered this 25 day of January 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
MILLARD COUNTY. Respondent.
DECISION AND ORDER
Case No. 21-04
By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Millard County.
FACTS
Between January and August 2018, Mr. Eames made several records requests pursuant to the Government Records Access and Management Act (“GRAMA”) regarding the 1988 murder of Gordon Ray Church and the subsequent trials and convictions of Michael Anthony Archuleta and Lance Conway Wood. Mr. Eames requested that he be given access for inspection of the trial exhibits. After the court proceedings had been completed, trial exhibits were remanded to Millard County for safe storage.
On February 20, 2020, Mr. Eames filed an appeal with the State Records Committee (“Committee”) claiming that Millard County had constructively denied his request for records. On January 14, 2021 the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Under GRAMA, 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 subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a).
2. GRAMA defines a “record” as a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics: (1) That is prepared, owned, received, or retained by a governmental entity or political subdivision; and (2) Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a).
3. Patrick S. Finlinson, Millard County Attorney, argued that Mr. Eames had been provided access to all public records related to his records request with the exception of the trial exhibits. Mr. Finlinson stated that access to the trial exhibits could not be provided to Mr. Eames because it is important that the evidentiary integrity of the exhibits be preserved for any further legal proceedings related to the convictions of Archuleta and Wood. Since Mr. Archuleta was given a death sentence, Mr. Finlinson contended that his legal proceedings continue and allowing the public to handle and manipulate the exhibits could compromise the evidence and potentially impact Mr. Archuleta’s future legal proceedings. Mr. Finlinson noted that Millard County had provided photographs of the exhibits to Mr. Eames.
4. After having considered the written and oral arguments of the parties, the Committee is convinced that Millard County has provided access to all public records responsive to Mr. Eames’ records request. However, Millard County is not required to provide access to Mr. Eames for the trial exhibits. The exhibits are not “records” as defined by GRAMA because they are not reproducible by photocopy or other mechanical or electronic means. See, Utah Code § 63G-2-103(22)(a)(ii).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames is hereby DENIED.
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.
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).
Entered this 25 day of January 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SANDRA GUZMAN-OCHOA, Petitioner, v.
UTAH DIVISION OF CHILD AND FAMILY SERVICES, Respondent.
DECISION AND ORDER
Case No. 21-20
By this appeal, Petitioner, Sandra Guzman-Ochoa, seeks access to records allegedly held by Respondent, the Utah Division of Child and Family Services.
FACTS
On September 10, 2020, Ms. Guzman-Ochoa made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Guzman-Ochoa requested a copy of a 2020 case report and an earlier 2014 case report from Respondent. Both of the case reports involved Ms. Guzman-Ochoa or a member of her family. On September 14, 2020, Ms. Guzman-Ochoa submitted a Request for Internal Review and for Administrative Hearing. Also on September 14, 2020, Ms. Guzman-Ochoa’s legal counsel filed a GRAMA request for Respondent “[to] release the CJC [Children’s Justice Center] interview for attorney review.”
In a letter dated September 22, 2020, Respondent informed Ms. Guzman-Ochoa that her records request was denied in full, stating that the 2014 case report should not be released because it was without merit. For the 2020 case report, Respondent denied the request pursuant to Utah Code § 63G-2-305, finding that the report should be classified as a protected document.
On October 19, 2020, Ms. Guzman-Ochoa appealed Respondent’s decision to Respondent’s Chief Administrative Officer (“CAO”). In a letter dated October 21, 2020, the CAO upheld the Respondent’s decision. On or around October 2020, Ms. Guzman-Ochoa also argued these same records requests before the Fourth District Juvenile Court. On November 25, 2020, the Court issued an order releasing the Children’s Justice Center (“CJC”) interview to Ms. Guzman-Ochoa’s counsel.
Ms. Guzman-Ochoa filed an appeal of the CAO’s denial with the State Records Committee (“Committee”). On March 11, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. See, Guzman-Ochoa v. Utah Div. of Child & Family Serv., State Records Committee Case No. 21-13 (March 22, 2021). At that hearing, the Committee ordered that the hearing should be continued. Id. On April 8, 2021, the Committee again held an electronic hearing, and after carefully considering the requested relief of the parties, the Committee 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 § 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. The definition of a “record” under GRAMA is found in Utah Code § 63G-2-103(22).
2. A record contained in the Management Information System, created in Utah Code § 62A-4a-1003, that is found to unsubstantiated, unsupported, or without merit, may not be disclosed to any person except the person who is alleged in the report to be a perpetrator of abuse, neglect, or dependency. Utah Code § 63G-2-202(10).
3. A video or audio recording of an interview, or a transcript of the video or audio recording, that is conducted at a Children’s Justice Center established under Utah Code § 67-5b-102, is not considered a record under GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(xv).
4. After having reviewed the written arguments and the oral arguments presented by the parties, the Committee finds that Respondent is not required to provide Ms. Guzman-Ochoa with a copy of the 2014 case report. The Committee is convinced that the 2014 case report is a record that is unsubstantiated, unsupported, and/or without merit and therefore, is not subject to disclosure pursuant to Utah Code § 63G-2-202(10). The Committee is also convinced that the relevant CJC videos, audio recordings, or transcripts of these recordings are not records under GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(xv). However, since the 2020 case report does not involve any pending charges, the Committee finds that it should be released to Ms. Guzman-Ochoa with proper redactions of Utah Code § 62A-4a-412(3) informant information.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sandra Guzman-Ochoa, is hereby DENIED IN PART and GRANTED 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.
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).
Entered this 19th day of April 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SAVE OUR CANYONS, Petitioner, v.
UTAH DEPARTMENT OF TRANSPORTATION, Respondent.
DECISION AND ORDER
Case No. 21-55
On May 13, 2021, the State Records Committee (“Committee”) held a hearing for Petitioner, Save our Canyons and Respondent, the Utah Department of Transportation. See, Save Our Canyons v. Utah Dept. of Trans., State Records Committee Case No. 21-30 (May 24, 2021). During that hearing, the parties reported on the status of the release and receipt of the requested records. During deliberation, the Committee voted unanimously to continue the hearing in order for: (1) Respondent to clarify the use of the STIP report and Respondent’s reasoning for considering the STIP report a draft; and (2) Respondent to review all of the draft records and identify which ones have been distributed in final form outside of government. Both parties were encouraged to work with the Government Records Ombudsman, Rosemary Cundiff, to potentially help accelerate the providing and receipt of the requested records.
The parties returned for a hearing that was held by the Committee on October 28, 2021. During the hearing, legal counsel for Respondent agreed that the requested records could be given to Petitioner if Petitioner was willing to accept the records in a PDF form. Based upon statements made by both parties, the Committee finds that the parties have agreed upon the scope and nature of the records to be given by Respondent to Petitioner, and that a Notice of Compliance should be filed by Respondent with the executive secretary of the Committee as required by Utah Code § 63G-2-403(15)(c).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Save Our Canyons, is hereby GRANTED.
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.
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).
Entered this 8 day of November 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
ATTORNEY GENERAL’S OFFICE. Respondent.
DECISION AND ORDER
Case No. 21-05
Two appeals (2020-18, 2020-87) from Petitioner, Steven Onysko, were heard by the State Records Committee (“Committee”) on January 14, 2021, with each of the parties participating electronically. The Committee unanimously voted to continue the resolution of the appeals to the next available Committee hearing date in order to allow the Committee the necessary time to complete an in camera review of the records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeals of Petitioner, Steven Onysko, are hereby CONTINUED.
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.
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).
Entered this 25 day of January 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TIFFANY GILMAN, Petitioner, v.
UNIFIED POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 21-14
By this appeal, Petitioner, Tiffany Gilman, seeks access to records allegedly held by Respondent, the Unified Police Department. After hearing arguments from the parties at a hearing held electronically on March 11, 2021, it was determined by the Committee that an in camera review of the disputed records was necessary. However, since there was not enough time during the hearing to review all the records in camera, the Committee voted unanimously to continue the appeal hearing until April 8, 2021.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Tiffany Gilman, is hereby CONTINUED.
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.
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).
Entered this 22 day of March 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RAPHAEL CORDRAY, Petitioner, V.
DUCHESNE COUNTY. Respondent.
DECISION AND ORDER
Case No. 21-21
By this appeal, Petitioner, Raphael Cordray, appeals the decision of Respondent , Duchesne County, to deny her request for a fee waiver for records obtained from Respondent.
FACTS
On December 2, 2020, Ms. Cordray made a records request pursuant to the Government Records Access and Management Act ("GRAMA"). Ms. Cordray requested records from Respondent's Planning and Zoning Department about the Uinta Basin Railway Project. Ms. Cordray also made a request for a fee waiver for the documents. On December 8, 2020, Ms. Cordray received a response that her request for a fee waiver has been denied and that the cost of her request would be $61.30.
In a letter dated December 10, 2020, Ms. Cordray filed an appeal with the chief administrative officer for Respondent. Ms. Cordray argued that the records primarily benefit the general public because they were "crucial to the public's ability to understand the impact" of the Uinta Basin Railway Project. Respondent denied Ms. Cordray's appeal.
In December 2020, Ms. Cordray filed an appeal with the State Records Committee ("Committee"). Before her appeal before the Committee was heard, Ms. Cordray paid the $61.30 fee and received the requested records. On April 8, 2021, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. A governmental entity may charge a reasonable fee to cover the governmental entity's actual cost of providing a record. Utah Code§ 630-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include the cost of staff time searchin g, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code§ 63G-2-203(2)(b).
2. ORAMA specifies that a governmental entity " may fulfill a record request without charge" and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code§ 63G-2-203(4)(a).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 630-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 630-2-205. Utah Code § 630-2-203(6)(a). The adjudicative body shall consider the reasonableness of the governrnental entity's denial of the fee waiver and any determinations made under Utah Code § 630-2-203(4). See, Utah Code § 630-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ,r,r 52 & 53,435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code§ 630-2-203(6)(b)(ii).
4. In the present case, the Committee finds that Respondent was reasonable when it denied Ms. Cordray's fee waiver request. While there is a public interest in the requested records, Ms. Cordray has not met her burden to show that Respondent's denial was an unreasonable denial. "[T]he ultimate question is not whether the entity abused its discretion, but whether its decision was reasonable." Jordan River Restoration Network, 2018 UT 62, ,r 52; 435 P.3d at 188.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Raphael Cordray is hereby DENIED.
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 § 630-2-404. Utah Code§ 630-2-403(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 § 630 -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 § 630 -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 § 630-2-404(6). In order to protect a parties' rights on appeal, a party may wish to seek advice from an attorney.
PENALTY NOTICE
Pursuant to Utah Code § 630 -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§ 630-2-403(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 19th day of April 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEPHEN PACE, Petitioner, v.
SALT LAKE CITY, Respondent.
DECISION AND ORDER
Case No. 21-32
By this appeal, Petitioner, Stephen Pace, seeks access to records held by Respondent, Salt Lake City (“City”).
FACTS
On November 24, 2020, Mr. Pace filed a Government Records Access and Management Act (“GRAMA”) request with Respondent, requesting meeting minutes and the revisions to those minutes for the Salt Lake City Historic Landmark Commission’s (“HLC”) July 16, 2020 public meeting. Respondent provided responsive documents on December 11, 2020. In an email sent on December 21, 2020, Mr. Pace appealed the “records response, arguing that certain records that were requested were not provided and that some of the records that were provided were not responsive to the request.”
In a letter dated January 8, 2021, Rachel Otto, the City’s Chief Administrative Officer and Chief of Staff to the Salt Lake City Mayor, responded to the appeal. Citing the text from Mr. Pace’s December 21, 2020 email and Mr. Pace’s comments, Ms. Otto stated that Respondent had neglected to provide a copy of pending minutes from the July 16, 2020 HLC meeting which had been submitted to the HLC for its approval. Ms. Otto stated that a copy of those pending minutes were provided with her letter. She also stated that under Utah Code Section 63G-2-305(22), “[e]arlier drafts of the pending minutes are protected records […] and are not subject to disclosure.”
In response to Mr. Pace’s request for “All records that show authorship and/or content” of the HLC’s minutes from the July 16, 2020 hearing, Ms. Otto stated that under Utah Code Section 63G-2-201(8), “governmental entities are not required to create records in response to a records request or provide documents in a particular format.” She further stated that, “To the extent your request seeks meeting minutes that identify authorship in the text of the document, I have been advised by the planning division that no such record exists.”
Ms. Otto stated that the redactions to the provided records should have been explained. She clarified that some redactions to the minutes were authorized under Utah Code Section 63G-2-305(17) as “the records provided omitted attorney-client privileged information”, and that some records were held from release in their entirety under that same statute. She further clarified that some redactions were authorized under Utah Code Section 63G-2-302(2)(d) as releasing that information, which included “private email addresses and phone numbers”, “would constitute a ‘clearly unwarranted invasion of personal privacy.’” Ms. Otto stated that one redaction to an attachment occurred because the attachment, which was classified as a protected draft under Utah Code Section 63G-2-305(22), was still accessible through the link to the attachment, despite efforts to remove the link. Lastly, Ms. Otto clarified that Respondent did not provide instructions on how to “unredact” the records “because we don’t believe unredacting is possible.”
Regarding Mr. Pace’s other requests and comments, Ms. Otto stated that “all relevant and responsive records” had been provided in response to Mr. Pace’s request for “[a]ll records showing correspondence, comments, reviews, notes, proposals suggesting changes or corrections, and approval/disapproval among Planning Division staff: and between Planning Division staff and HLC Commissioners”. Ms. Otto noted that Respondent had provided an attendee list for a different meeting in error and that the attendee list for the July 16, 2020 HLC hearing was attached. Ms. Otto stated in final that for Mr. Pace’s other requests, no such records existed, and that “if records provided initially or herewith are not responsive to the request then no such record exists.”
Respondent later declassified “an early draft of ‘pending minutes’” as protected and provided the record to Mr. Pace on February 26, 2021.
Mr. Pace appealed the CAO’s decision to the Utah State Records Committee (“Committee”) on January 8, 2021. In a letter dated January 13, 2021, the Committee’s executive secretary informed Mr. Pace that “After reviewing the material, it has been determined the State Records Committee cannot hear the appeal because access to the records has not been denied. Sufficient facts have not been alleged to determine that other responsive records exist”. In a letter dated March 11, 2021, the Committee’s executive secretary informed Mr. Pace that the Committee had reconsidered its denial of Mr. Pace’s January 8, 2021 appeal and had moved to hear the appeal.
On May 13, 2021, the Committee held a combined hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the parties' arguments and the evidence presented, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Mr. Pace owns buildings in the Salt Lake City area and has been in the process of restoring those buildings. In the hearing, Mr. Pace requested to know his rights regarding reconstructing public landmarks which were now under the supervision of the City. Mr. Pace stated that the HLC had not been keeping adequate minutes and stated that the City refused to tell him that he had been denied records of the minutes. Mr. Pace also stated that the minutes change from one minute to the next, and that staff supported his restoration project at one time and then rejected it another time. Mr. Pace questioned whether the decisions HLC made were arbitrary and capricious. He also stated that one branch of the government said that the records did not exist while the other branch was saying that the records do exist.
2. Counsel for Respondent stated that Mr. Pace was using the GRAMA process to air grievances. The draft pending minutes had been released to Mr. Pace. Counsel stated that it was still unclear what records Mr. Pace believed he had not been provided. Respondent’s counsel acknowledged that some procedural errors had been made but stated that those errors had been rectified and the responsive records had been released to Mr. Pace.
3. The Committee noted that there was nothing on the public notice website regarding meeting minutes for HLC’s meetings. Respondent’s counsel stated that the Respondent would: (1) post the minutes and handouts for meetings on the public notice website; (2) make the minutes available to the public after 30 days, and (3) post the approved minutes to the public notice website and its own website.
4. The Committee voted unanimously to deny Mr. Pace’s appeal as the City had done a search and had provided all responsive records.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Stephen Pace, is hereby DENIED.
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).
Entered this 24 day of May 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DARREN ROSENSTEIN, Petitioner, v.
UTAH DEPARTMENT OF TRANSPORTATION. Respondent.
DECISION AND ORDER
Case No. 21-12
The present appeal was originally heard by the State Records Committee (“Committee”) on January 14, 2021 with each of the parties participating electronically. See, Rosenstein v. Utah Dept. of Transp., State Records Committee Case No. 21-02 (Jan. 25, 2021). The Committee unanimously voted to continue the hearing to the next available Committee hearing date in order to allow the Committee the necessary time to complete an in camera review of the records. Id.
After having reviewed all provided records in camera, the Committee held a second electronic hearing on February 11, 2021. See, Rosenstein v. Utah Dept. of Transp., State Records Committee Case No. 21-08 (Feb. 22, 2021). The Committee determined that the sample that had been provided to the Committee for its in camera review did not include all eight parts of Mr. Rosenstein’s records request. Id. The Committee also determined that Respondent needs to classify the records as public or non-public with appropriate citations in order to allow the Committee to determine if Respondent’s classifications of the records is correct. Id.
The parties appeared before the Committee a third time at an electronic hearing held on March 11, 2021. At the hearing, both parties requested another continuance. Accordingly, the Committee voted to continue the present case to the Committee’s April 8, 2021 hearing.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Darren Rosenstein is hereby CONTINUED.
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.
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).
Entered this 22 day of March 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
J. ROBERT LATHAM, Petitioner, v.
WASHINGTON COUNTY, Respondent.
DECISION AND ORDER
Case No. 21-16
By this appeal, Petitioner, J. Robert Latham, seeks access to records allegedly held by Respondent, Washington County.
FACTS
On April 23, 2020, Mr. Latham made a records request to the Washington County Records Officer pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Latham requested records “that reference or are about me” from two named individuals on or after June 20, 2018. On September 24, 2020, Respondent provided some of the requested records but also stated that there are 298 e-mails that have been classified as non-public. After an appeal was filed by Mr. Latham, Victor Iverson, Chair of the Washington County Commission, denied Mr. Latham’s appeal in a letter dated November 6, 2020.
Mr. Latham filed an appeal with the State Records Committee (“Committee”) and an electronic hearing was held by the Committee on February 11, 2021. At the hearing, it was determined by the Committee that an in camera review of the disputed records was necessary and the matter was continued until March 11, 2021. Latham v. Washington Cty., State Records Committee Case No. 21-07 (Feb. 22, 2021). At the hearing held on March 11, 2021, the Committee considered the requested relief of the parties and now 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. A record to which access is restricted pursuant to court rule are not public and are governed by the specific provisions of that rule. Utah Code § 63G-2-201(3)(b) & (6)(a).
2. Utah Rule of Judicial Administration 4-202.03(1) provides that any person can access a public court record. However, Utah Rule of Judicial Administration 4-202.03(5) & (6) generally restricts access to juvenile court social records and juvenile court legal records.
3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d). Records listed in Utah Code § 63G-2-305 are protected records if properly classified by the governmental entity.
4. After having considered the arguments of the parties and reviewing the disputed records in camera, the Committee finds that the records were appropriately classified by Respondent. The Committee finds that some of the records are records from juvenile court proceedings which should remain non-public pursuant to court rule, being subject to Utah Code § 63G-2-201(3)(b). The Committee also finds that the records were properly classified under GRAMA by Respondent as private records pursuant to Utah Code § 63G-2-302(2)(d), as protected records pursuant to Utah Code § 63G-2-305(6), (10), (17), (18), and (22), and as non-records pursuant to Utah Code § 63G-2-103(22)(b).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, J. Robert Latham, is DENIED.
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.
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).
Entered this 22 day of March 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DEVON CANTWELL, Petitioner, v.
UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 20-18
By this appeal, Petitioner, Devon Cantwell, seeks access to records allegedly held by Respondent, the University of Utah.
FACTS
Ms. Cantwell is a member of “UnsafeU”, a student group concerned with safety issues on Respondent’s campus. On June 29, 2020, Ms. Cantwell made a records request pursuant to the Government Records Access and Management Act (“GRAMA”) to Respondent. Ms. Cantwell requested email correspondence between Respondent’s Office of Equal Opportunity and Nicole Bedera, a Ph.D. candidate at the University of Michigan. Ms. Cantwell also requested specifically a copy of a report written that was sent to Respondent between October 2019 and January 2020. The written report and accompanying PowerPoint presentation exploring student experiences with universities’ handling of on-campus sexual misconduct complaints, were created by Ms. Bedera and emailed to Respondent in December 2019.
In an email dated July 13, 2020, a paralegal on behalf of Respondent, denied the records request stating that the report does not meet the definition of a “record” under GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(iv). The denial further stated that even if the report were considered a record, it would be considered a protected record pursuant to Utah Code § 63G-2-305(22) & (40).
An appeal filed on behalf of Ms. Cantwell was received by Respondent on August 14, 2020. Gregory C. Thompson, Appeals Officer for Respondent, upheld the initial denial finding that the report and accompanying materials created by Ms. Bedera do not meet the definition of a record under GRAMA, and if they were considered records, they would be classified as non-public protected records.
In a letter to the Committee dated September 16, 2020, Ms. Cantwell filed an appeal with the State Records Committee (“Committee”). On March 29, 2021, Respondent provided emails to Ms. Cantwell responsive to her request. However, Ms. Bedera’s report, the accompanying PowerPoint, and Respondent’s response, were excluded from this release. On April 8, 2021, the Committee held an electronic hearing during which the parties presented their arguments. After carefully considering the arguments from all parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1).
2. Under GRAMA, a “record” does not mean material to which access is limited by the laws of copyright or patent unless the copyright or patent is owned by a governmental entity or political subdivision. Utah Code § 63G-2-103(22)(b)(iv).
3. Respondent’s counsel argued that all public records responsive to Ms. Cantwell’s records request had already been provided to her. Counsel also argued that the records related to Ms. Bedera’s report are not records under GRAMA, claiming that since they were independently created by Ms. Bedera, she is the person who holds the copyright to her creation and not Respondent.
4. After considering all evidence presented to the Committee including testimony provided during the hearing, the Committee is convinced that Respondent did a thorough search for records and has provided all public records responsive to Ms. Cordray. However, Respondent is not required to provide Ms. Bedera’s written report and accompanying PowerPoint presentation. They are not considered records under GRAMA because Ms. Bedera holds the copyright to the materials and she has not consented to their public release. Accordingly, the Committee finds that Respondent properly determined that these materials are not records subject to GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(iv).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Devon Cantwell, is hereby DENIED.
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.
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).
Entered this 19th day of April 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SAM STECKLOW on behalf of the SALT LAKE TRIBUNE, Petitioner, v.
WASHINGTON COUNTY SHERIFF’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 21-26
By this appeal, Petitioner, Sam Stecklow, journalist with the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Washington County Sheriff’s Office.
FACTS
In a letter dated December 29, 2020, Mr. Stecklow made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Stecklow requested from Respondent records regarding four specified officer critical incidents involving Washington County Sheriff Deputies during the past thirteen years. Mr. Stecklow stated that the records were necessary for a story in the Salt Lake Tribune.
On December 30, 2020, Respondent’s records officer stated that no records were being provided because either Respondent did not possess the records or the records were not classified public records pursuant to Utah Code § 63G-2-301(3)(o)(ii). After an appeal was filed, Cory Pulsipher, Washington County Sherriff, affirmed the denial of Mr. Stecklow’s records request finding that Respondent’s internal affair reports should be classified as private records pursuant to Utah Code § 63G-2-302(2)(a).
In a letter dated January 21, 2021, Mr. Stecklow appealed Respondent's GRAMA request denial to the State Records Committee ("Committee"). On April 29, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the parties' arguments and the evidence presented, the Committee 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 § 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. Records concerning a current or former employee of a governmental entity including performance evaluations and personal status information, are generally private if properly classified by a governmental entity but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o). Utah Code § 63G-2-302(2)(a). Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental employee are normally public if: (1) The disciplinary action has been completed and all time periods for administrative appeal have expired; and (2) The charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o).
3. Records that contain medical, psychiatric, or psychological data about an individual, are controlled records if properly classified by a governmental entity and the governmental entity reasonably believes that: (1) 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 (2) Releasing the information would constitute a violation of normal professional practice and medical ethics. Utah Code § 63G-2-304.
4. Records created or maintained for civil, criminal, or administrative enforcement purposes are protected records if properly classified by a governmental entity and reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(d).
5. The requested records are related to four incidents involving Sheriff Deputies for Respondent since 2008. Each of these shootings resulted in five Internal Affair records created and prepared by Respondent to evaluate the response of each Sheriff Deputy involved in the incidents. These records were classified by Respondent to be private records as performance evaluations pursuant to Utah Code § 63G-2-302(2)(a).
6. In Lawrence v. Utah Dept. of Pub. Safety, Utah 3rd Dist. Case No. 120907748 (Aug. 21, 2013), the district court found that:
[T]he public’s right to know the response of public officials charged with the responsibility of investigating alleged constitutional violations substantially exceeds any individual interests of those public officials or the interest of a Trooper charged with the responsibility protecting the safety and rights of the State’s citizens.
7. After having reviewed the records in camera and considering the evidence and arguments presented by the parties, the Committee finds that requested records of the four shooting incidents since 2008 should be released. The Committee finds that Respondent properly classified the requested records as private records pursuant to Utah Code § 63G-2-302(2)(a). Upon consideration and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, the Committee finds that the public interest favoring access is greater than the interest favoring restriction of access. See, Utah Code § 63G-2-403(11)(b). The Committee follows the district court’s decision in Lawrence holding that the public’s right to know “substantially exceeds” individual interests of public officials or police officers because:
[T]he records reveal whether public officials properly discharged their public responsibility to investigate and address allegations that law enforcement personnel violated a citizen’s constitutional rights. [Lawrence, at pg. 3.]
The Committee also finds that prior to release of the records, Respondent may redact: (1) Information regarding a deputy’s abilities pursuant to Utah Code § 63G-2-304 (Bates stamped pgs. 39 & 40); (2) Names of witnesses not widely known pursuant to Utah Code § 63G-2-305(10)(d); and (3) Any personal information pursuant to Utah Code § 63G-2-302(2)(a) including a signature occurring on Bates stamped page 22.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sam Stecklow, 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.
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).
Entered this 10 day of May 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DARREN ROSENSTEIN, Petitioner, v.
UTAH DEPARTMENT OF TRANSPORTATION, Respondent.
DECISION AND ORDER
Case No. 21-58
By this appeal, Petitioner, Darren Rosenstein seeks access to records held by Respondent, Utah Department of Transportation. The parties have appeared before the State Records Committee (“Committee”) several times including October 28, 2021, where the parties were allowed to present their evidence and their legal arguments. See, Rosenstein v. Utah Dept. of Transp., Case No. 21-53 (Nov. 8, 2021). After reviewing the records in camera, the Committee held another hearing on November 18, 2021 and hereby issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. In order to help the Committee, Respondent, the Utah Department of Transportation, provided color coordinated copies of the disputed records to the Committee. Accordingly, for clarity for the parties, this Order will refer to each group of records by their color grouping.
2. The pink group of records have been classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(10)(a), -305(10)(d), and -305(18). Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity if release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; or (2) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(a) & (d). Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).
3. After reviewing the pink group of records in camera, the Committee finds that Respondent properly classified these records as protected records pursuant to Utah Code §§ 63G-2-305(10)(a), -305(10)(d), and -305(18).
4. The blue group of records have been classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(10)(b) and -305(22). Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are properly classified protected records by a governmental entity if release of the records reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings. Utah Code § 63G-2-305(10)(b). Drafts, unless otherwise classified as public, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(22).
5. After reviewing the blue group of records in camera, the Committee finds that Respondent properly classified these records as protected records pursuant to Utah Code §§ 63G-2-305(10)(b) and -305(22).
6. The green group of records have been classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(10)(a) and -305(22). After reviewing the green group of records in camera, the Committee finds that Respondent properly classified these records as protected records pursuant to Utah Code §§ 63G-2-305(10)(a) and -305(22).
7. The white group of records have been classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(17) and -305(18). Records that are subject to the attorney client privilege are protected records if properly classified by the governmental entity pursuant to Utah Code § 63G-2-305(17). After reviewing the white group of records in camera, the Committee finds that Respondent properly classified these records as protected records pursuant to Utah Code §§ 63G-2-305(17) and -305(18).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Darren Rosenstein, is hereby DENIED.
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.
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).
Entered this 30th day of November 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SANDRA GUZMAN-OCHOA, Petitioner, v.
UTAH DIVISION OF CHILD AND FAMILY SERVICES, Respondent.
DECISION AND ORDER
Case No. 21-13
By this appeal, Petitioner, Sandra Guzman-Ochoa, seeks access to records allegedly held by Respondent, the Utah Division of Child and Family Services. After hearing arguments from the parties at a hearing held electronically on March 11, 2021, it was determined by the Committee that a continuance would be helpful to the parties in order to allow: (1) Respondent to review the requested records and determine whether some of those records can be released to Ms. Guzman-Ochoa; and (2) The parties to work with the Government Records Ombudsman.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sandra Guzman-Ochoa, is hereby CONTINUED.
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.
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).
Entered this 22 day of March 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ROBERT SLOMAN, Petitioner, v.
UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 21-34
On June 10, 2021, the State Records Committee (“Committee”) held an in-person hearing at the Taylorsville State Office Building, during which both parties participated electronically. After considering the arguments presented by both parties, the Committee voted unanimously to continue the present case until the Committee’s next available hearing to allow the ongoing process of records production to continue. At the next hearing, both parties will give a status report on records production. The parties are encouraged to negotiate between themselves to allow the respondent to explore using different search parameters and are also encouraged to mediate with the Government Records Ombudsman, Rosemary Cundiff.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Robert Sloman, is hereby CONTINUED.
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).
Entered this 21 day of June 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JESSICA MILLER on behalf of The SALT LAKE TRIBUNE, Petitioner, v.
SALT LAKE CITY CORPORATION, Respondent.
DECISION AND ORDER
Case No. 21-42
By this appeal, Petitioner, Jessica Miller on behalf of the Salt Lake Tribune, requests access to records held by Respondent, the Salt Lake City Corporation.
FACTS
Jessica Miller, a reporter with the Salt Lake Tribune, made a request received on May 12, 2021 by Respondent, for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Miller requested body camera footage of a K-9 dog bite incident occurring on November 14, 2019. In an e-mail dated May 18, 2021, Respondent’s GRAMA coordinator denied the request stating that the record had been classified as a protected record pursuant to Utah Code § 63G-2-305(10)(a-c).
In a letter dated May 21, 2021, Ms. Miller appealed the denial arguing that the video should be released because the “city cannot be permitted to take a piecemeal approach to transparency.” In a letter dated June 7, 2021, Rachel Otto, Chief of Staff for the Office of the Salt Lake City Mayor, affirmed the GRAMA coordinator’s decision adding that “[s]hould circumstances change, the City is willing to reevaluate this decision.”
Ms. Miller filed an appeal with the State Records Committee (“Committee”) in a letter dated June 9, 2021. On August 12, 2021, the Committee held a hearing during which the parties were allowed to participate electronically. 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.
STATEMENT OF REASONS FOR DECISION
1. 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. Records created or maintained for civil or criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the records: (1) Reasonably could be expected to interfere with the enforcement proceedings; or (2) Could create a danger of depriving a person of a right to a fair trial or impartial hearing.
3. Counsel for Respondent argued that the body camera record was created and maintained for civil and criminal enforcement purposes. The recording depicts the deployment of a police dog by a Salt Lake City Police Department K-9 Officer on a subject who is believed to have stolen a vehicle. Counsel added that the deployment of the police dog is the subject of an aggravated assault prosecution by the Salt Lake District Attorney’s Office, and the prosecution is currently active with a preliminary hearing set for November 16, 2021. Counsel contended that release of the recording “would create a danger of depriving the K9 officer of a right to a fair trial or impartial hearing, and could reasonably be expected to interfere with the court proceedings…against that officer.”
4. Additionally, a Declaration from the attorney representing K-9 Officer was included in the materials provided by Respondent. The Officer’s attorney opposes the release of the record, stating releasing the body camera footage “will create a danger of interfering with the K-9 Officer’s right to due process in a court of law.”
5. After having considered all of the evidence and arguments presented by both parties, the Committee is persuaded by Respondent’s claim that release of the record reasonably could be expected to interfere with civil or criminal enforcement proceedings and create a danger of depriving a person of a right to a fair trial or impartial hearing. Accordingly, the Committee finds that the record was properly classified as a protected record by Respondent pursuant to Utah Code § 63G-2-305(10)(b) & (c).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jessica Miller on behalf of the Salt Lake Tribune, is hereby DENIED.
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).
Entered this 23 day of August 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
O’NEILL CHAMBERS, Petitioner, v.
CITY OF OREM, Respondent.
DECISION AND ORDER
Case No. 21-39
On July 8, 2021, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. A motion was made to review the disputed records in camera. In order to allow the Committee members to have sufficient time to properly review the records in camera, the Committee voted unanimously to continue the hearing until the September 9, 2021 Committee hearing.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, O’Neill Chambers, is hereby CONTINUED.
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).
Entered this 19 day of July 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NICOLE K. NOREN (ESPN), Petitioner, v.
UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 21-57
By this appeal, Petitioner, Nicole K. Noren on behalf of ESPN, requests records allegedly held by Respondent, the University of Utah.
FACTS
On March 26, 2021, Ms. Noren, a Producer with ESPN, made a request for records from Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Noren requested copies of all audio and video interviews from Respondent associated with the Lauren McCluskey case. After payment of an estimated fee, Respondent provided copies of records to Ms. Noren with names, images, and identifying information of certain individuals, redacted or altered in order to protect the identity of those individuals pursuant to Utah Code § 63G-2-302(2)(d).
On July 15, 2021, Ms. Noren filed an appeal with Respondent’s Administrative Manager to the Records Officer, stating that some of the records were missing and for the videos produced, the pixilation and the audio alterations were unwarranted. In a letter dated July 29, 2021, Gregory C. Thompson, Respondent’s Appeals Officer, denied the appeal.
On August 28, 2021, Ms. Noren filed an appeal with the State Records Committee (“Committee”). On November 18, 2021, 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.
STATEMENT OF REASONS FOR DECISION
1. In the present case, there are two issues for the Committee’s consideration: (1) Whether the alterations made by Respondent of the videos provided to Ms. Noren were warranted; and (2) Whether all records responsive to the records request were provided to Ms. Noren.
2. Respondent argues that the video alterations (pixilation of pictures and voice modifications) were warranted pursuant to Utah Code § 63G-2-302(2)(d). Respondent contends that release of the videos without the alterations would be a clearly unwarranted invasion of personal privacy of the individuals featured in the videos. Petitioner argues that the alterations of the videos have greatly diminished the quality of the videos for use in a television documentary to be produced by ESPN.
3. After having review portions of the altered videos, the Committee finds that the alterations are allowed pursuant to Utah Code § 63G-2-302(2)(d) because release of unaltered versions of the videos would be a clearly unwarranted invasion of personal privacy.
4. Petitioner also argues that certain interviews were not provided by Respondent. Respondent acknowledged that some interviews may have taken place. Unfortunately, after a thorough search, Respondent claims that it was unable to retrieve these records.
5. After having reviewed the parties’ arguments and evidence provided to the Committee, the Committee finds that reasonable efforts were made by Respondent to find the requested records. Although reasonable efforts were made, the Committee nevertheless encourages Respondent to further search for the missing records in order to find any records that may have not yet been located.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nicole K. Noren on behalf of ESPN, is hereby DENIED.
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).
Entered this 30th day of November 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
AARON PACINI, Petitioner, v.
JORDAN SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 22-10
By this appeal Petitioner, Aaron Pacini, seeks a fee waiver and access to records allegedly held by Respondent, the Jordan School District.
FACTS
On or about September 15, 2021, Mr. Pacini made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to the Jordan School District. He requested the following six sets of records (Request #’s 1-6): (1) Election results for all South Jordan Elementary Community Council ("SCC") 2021-2022 elections; (2) The SCC election rules and procedures governing all SCC 2021-2022 elections; (3) The names of each SCC member including parents and teachers, the beginning dates of their service and the ending date of their current term; (4) All emails, texts, and other communications (regardless of official or personal communications) to or from South Jordan Elementary's principal, vice-principal, other administrators and office staff regarding SCC in the calendar year 2021, SCC election(s) for the year 2021-2022 and Pacini by name or reference including Aaron, Shalene, Christopher, Jacob, Timothy or Nathan; (5) All emails, texts or other communications (personal or official) from or to two specified individuals regarding the SCC 2021-2022 election including references to "Pacini," any candidate, the election process, results, etc.; and (6) The number of students in each SJE class from each Dibels category. Mr. Pacini also requested a fee waiver as these records benefit the public and he is the subject, or representative, of the record.
On September 29, 2021, the Jordan School District granted Mr. Pacini’s records request in part and denied it in part. On October 18, 2021, Mr. Pacini filed an appeal with Dr. Anthony Godfrey, Superintendent of the Jordan School District, who in a decision dated November 9, 2021, granted in part and denied in part Mr. Pacini’s appeal.
Mr. Pacini filed an appeal with the State Records Committee (“Committee”) on December 8, 2021, for Request #’s 1, 3, 4, 5, & 6. On March 17, 2022, the Committee held a hearing where the parties were allowed to participate in person and electronically. After carefully considering the parties’ arguments and the evidence presented and reviewing the records in camera, the Committee 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 § 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. Regarding Request #1, the Committee finds that the record is a non-public record pursuant to Utah Code §§ 63G-2-302(2)(d) & -305(22).
3. The Committee finds that Request #3 for names of each SCC member including parents and teachers, the beginning dates of their service and the ending date of their current term, should be denied because the information has already been provided to Mr. Pacini by the Jordan School District. See, Utah Code § 63G-2-201(8)(d).
4. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).
5. The Committee finds that the Jordan School District’s denial of Mr. Pacini’s request for a fee waiver for Request #’s 4 & 5 was not an unreasonable denial of a fee waiver because Mr. Pacini has not shown that releasing the record primarily benefits the public rather than a person.
6. The Committee denies Mr. Pacini’s appeal for Request #6 because the Committee is convinced that Jordan School District does not possess a record responsive to Mr. Pacini’s records request.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Aaron Pacini, is hereby DENIED.
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).
Entered this 28 day of March 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
GEORGE STAHELI, Petitioner, v.
UTAH TECH UNIVERSITY, Respondent.
DECISION AND ORDER
Case No. 22-28
By this appeal, Petitioner George Staheli, seeks access to records allegedly held by Respondent, Utah Tech University.
FACTS
On March 26, 2022, Mr. Staheli made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Respondent. Mr. Staheli requested all data the Cicero Group gathered for the Dixie State University name change process. In an email dated April 12, 2022, Respondent denied the request pursuant to Utah Code § 63G-2-201(8)(d), finding that Mr. Staheli had requested similar information in May 2021. The email also stated that Respondent “does not own or maintain Cicero’s raw data or data sets.”
In a letter dated April 30, 2022, Mr. Staheli filed an appeal with Travis Rosenberg, Executive Director of Human Resources with Respondent. Mr. Staheli argued that Respondent “MUST be required to obtain the data related to the Cicero study and provide that to me.” Mr. Staheli contended that since Respondent contracted with Cicero Group to perform a specific study that would generate data, Respondent should own and be able to produce the data that was generated by Cicero Group. In a letter dated May 13, 2022, Mr. Rosenberg denied Mr. Staheli’s appeal finding that Respondent “does not own or maintain the records.” Mr. Rosenberg stated:
To conduct the study, Cicero created certain materials and questions to assist them in gathering information. The University did not prepare, does not own, did not receive, and does not retain this information. The University did not exercise direct supervision or control over how Cicero conducted the study.
Mr. Staheli filed an appeal with the State Records Committee (“Committee”). On July 21, 2022, 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.
STATEMENT OF REASONS FOR DECISION
1. In response to a request for records made pursuant to GRAMA, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a).
2. Counsel for Respondent argued that “the methodology used by Cicero is proprietary to Cicero. The raw data is owned by Cicero and was never intended to be made public as confidentiality is essential to the function of Cicero’s business.” Accordingly, Respondent contended that it “does not own, has not received, and does not maintain any of the records requested” by Mr. Staheli.
3. After having considered the arguments and evidence presented by the parties, the Committee finds that Respondent does not possess any records responsive to Mr. Staheli’s records request. Therefore, the Committee cannot require Respondent to provide records it does not possess.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, George Staheli, is hereby DENIED.
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).
Entered this 1 day of August 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v.
SEVEN COUNTY INFRASTRUCTURE COALITION. Respondent.
DECISION AND ORDER
Case No. 21-43
By this appeal, Petitioner, the Center for Biological Diversity, seeks access to records allegedly held by Respondent, Seven County Infrastructure Coalition.
FACTS
In a letter dated April 15, 2020, Petitioner submitted a request to Respondent a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records related to the Uinta Basin Railway Project including specifically a draft financial analysis for the Uinta Basin Railway dated May 13, 2019 (“Financial Analysis”). In a letter dated July 23, 2020, Respondent’s records officer denied Petitioner’s request for the Financial Analysis stating that the record was classified a protected record pursuant to Utah Code § 63G-2-305(3) because if contained commercial or financial information acquired or prepared by a governmental entity.
In a letter dated August 21, 2020, Petitioner filed an appeal with Respondent’s Executive Director. In a letter dated September 3, 2020, Mike McKee, Executive Director for Respondent reaffirmed the records officer’s decision regarding the Financial Analysis. Mr. McKee stated that “premature release of this detailed, proprietary information could impair these efforts and could lead to private speculation in items and property potentially affected by Coalition projects.”
Petitioner filed an appeal with the State Records Committee (“Committee”) and on August 17, 2021, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee 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 § 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. Commercial or financial information acquired or prepared by a governmental entity to the extent that disclosure would lead to financial speculations in currencies, securities, or commodities that will interfere with a planned transaction by the governmental entity or cause substantial financial injury to the governmental entity or state economy, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(3).
3. After having considered the written and oral arguments of the parties and reviewing the disputed records in camera, the Committee finds that Respondent properly classified the Financial Analysis as a protected record pursuant to Utah Code § 63G-2-305(3).
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Center for Biological Diversity is hereby DENIED.
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.
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).
Entered this 23 day of August 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
UTAH STATE TREASURER, Respondent.
DECISION AND ORDER
Case No. 21-56
By this appeal, Petitioner, Brady Eames, requests a fee waiver for records held by Respondent, the Utah State Treasurer.
FACTS
On July 1, 2021, Mr. Eames made a request for records from Respondent. Mr. Eames was informed that there would be a cost of $60.00 for the requested records. Mr. Eames filed an appeal to Marlo Oaks, Utah State Treasurer, claiming that he had the right to freely inspect the requested records because he was “a citizen of the United States, State of Utah, Cache County and Logan City.” Mr. Oaks denied Mr. Eames’ request to “freely inspect” the requested records stating that the Government Records Access and Management Act (“GRAMA”) “allows a governmental entity to charge a fee for the cost of providing a record.”
In an e-mail dated August 11, 2021, Mr. Eames filed an appeal with the State Records Committee (“Committee”). On October 28, 2021, 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.
STATEMENT OF REASONS FOR DECISION
1. A person has the right to inspect a public record free of charge and take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include: (1) The cost of staff time for compiling or formatting the record into an organization or media to meet the person’s request; or (2) The cost of staff time for search, retrieval and other direct administrative costs for complying with a request. Utah Code § 63G-2-203(2)(a)(i) & (ii).
3. A governmental entity may require payment of future estimated fees before beginning to process a request if fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i).
4. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).
5. The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
6. After having considered all of the evidence and arguments presented by both parties, the Committee finds that Respondent’s denial of Mr. Eames’ request for a fee waiver was not an unreasonable denial. Mr. Oaks stated in his denial that “I find no justification to waive the fee based on” Utah Code § 63G-2-203(4). This determination is supported by the evidence in the record. Accordingly, the Committee upholds Respondent’s denial of Mr. Eames’ request for a fee waiver.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames, is hereby DENIED.
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).
Entered this 8 day of November 2021
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRIAN DONEGAN, Petitioner, v.
GRAND COUNTY SHERIFF’S DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 22-04
By this appeal, Petitioner, Brian Donegan, seeks access to records allegedly held by Respondent, the Grand County Sheriff’s Office.
FACTS
On August 24, 2021, Mr. Donegan made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Grand County Sheriff’s Office. Mr. Donegan requested any and all information relating to the murder of Kylen Schulte and Crystal Turner including type/caliber of the weapon, type of wounds, and the exact location of where the bodies had been found. In a letter dated August 25, 2021, Christina Sloan, Grand County Attorney, denied the request stating that release of the records could reasonably be expected to interfere with a pending investigation and/or create a danger of depriving a person a right to a fair or impartial hearing pursuant to Utah Code § 63G-2-305(10).
Mr. Donegan appealed the denial on September 8, 2021 to Grand County’s chief administrative officer. In a letter dated September 8, 2021, Chris Baird, Grand County Commission Administrator affirmed the denial of Mr. Donegan’s records request. Mr. Baird stated that “an active investigation is underway for this incident” and reaffirmed that release of the information could reasonably be expected to interfere with the investigation.
On October 7, 2021, Mr. Donegan filed an appeal with the State Records Committee (“Committee”). On January 20, 2022, the Committee held a public hearing and considering 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.
STATEMENT OF REASONS FOR DECISION
1. 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. Records created or maintained for criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to: (1) Interfere with investigations undertaken for enforcement proceedings; or (2) Create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(a) & (c).
3. Christina Sloan, Grand County Attorney, stated during the hearing that the murder investigation is still active and ongoing. Ms. Sloan stated that Grand County “must protect the Records because the interest of justice, the constitutional right to a fair trial and public safety outweighs the public’s interest in further disclosure.
4. After carefully considering all of the evidence presented, the Committee finds that the subject records are protected records not subject to disclosure pursuant to Utah Code §§ 63G-2-305(10). The Committee is persuaded that release of the records of an ongoing investigation could interfere with the investigation and potentially deprive a person of their right to a fair trial.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brian Donegan, is hereby DENIED.
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).
Entered this 31st day of January 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.
DECISION AND ORDER
Case No. 22-09
By this appeal Petitioner, Paul Amann, is requesting records allegedly held by Respondent, Utah Department of Public Safety ("DPS").
FACTS
In a document dated August 26, 2021, Mr. Amann made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Bureau of Criminal Identification (“BCI”) within DPS. Mr. Amann requested “[a]ny and all records” regarding a specified individual including records of applications, communications, and correspondence involving that individual. After the time for response had expired, Mr. Amann filed an appeal with DPS Commissioner Jess L. Anderson in a letter dated September 14, 2021.
In a letter dated September 27, 2021, Melanie Marlowe, Quality and Process Improvement Director for DPS, denied Mr. Amann’s records request. Ms. Marlowe stated that the records were not public records pursuant to Utah Code §§ 63G-2-201(3)(b), 53-10-108, 63G-2-302(2), 63G-2-301(2)(b), 63G-2-301(3)(o), 63G-2-301(1)(b), 63G-2-305(12), and 77-40-109(2)(a).
On October 27, 2021, Mr. Amann filed an appeal with the State Records Committee (“Committee”). On February 17, 2022, the Committee held a public hearing during which the parties were allowed to present evidence and arguments to the Committee. After having carefully considered the written and oral arguments provided by both parties, the Committee 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 § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-201(3)(a), -302, -303, -304 and -305. Records to which access is restricted pursuant to another state statute are considered non-public records pursuant to GRAMA. Utah Code § 63G-2-201(3)(b)
2. In his first records request, Mr. Amann requested “[a]ny and all records” regarding a specified individual including “any applications for a logon, any logon, and any other records relevant” to the named individual. Mr. Amann also requested any and all information regarding the person’s access to the Utah Criminal Justice Information System (“UCJIS”). DPS argued that potentially responsive records are restricted from public access pursuant to Utah Code § 53-10-108, but that no responsive records were found because the records are beyond their three-year retention period. After having carefully considered the evidence presented by the parties, the Committee finds that for Mr. Amann’s first records request, DPS does not possess responsive records and if records were found, they would not be public records subject to disclosure pursuant to Utah Code § 53-10-108.
3. In his second records request, Mr. Amann requested all records by a specified individual or on behalf of the specified individual “submitting applications” to BCI for expungement. The Utah Expungement Act states that BCI “shall keep, index, and maintain all expunged records of arrests and convictions.” Utah Code § 77-40-109(1). It further states that employees of BCI “may not divulge any information contained in the bureau’s index to any person or agency without a court order unless specifically authorized by statute.” Utah Code § 77-40-109(2)(a). Records under the Act are classified as protected under Utah Code § 63G-2-305 and are only accessible as provided under Part 2 of GRAMA. Utah Code § 77-40-109(6). The Committee finds that records responsive to Mr. Amann’s second records request are subject to the Utah Expungement Act and Mr. Amann has not demonstrated that he is entitled to receive any protected records held by DPS related to an expungement.
4. In his third and fourth records requests, Mr. Amann requested “all records of communications/correspondence” regarding a specified individual, and “[a]ll records to/from anyone in the Utah Attorney General’s Office, and/or Internet Crimes Against Children Task Force” regarding a specified individual. Counsel for DPS argued that these records requests were too broad because DPS consists of 11 divisions including the Driver License Division, and that a search of one year of e-mails for the person’s last name returned 5,612 results. When using the eight full names listed by Mr. Amann in his records request, 17,586 results were returned for the one-year period. DPS estimated that searches for responsive records would take approximately 4.396 hours. Additionally, the State of Utah currently employs two individuals with the same first and last name as the person requested by Mr. Amann, and many other similar names regarding the requested individual resulting in a direct cost of approximately $112,000 to search, compile, and evaluate the searched records.
5. A person making a request for a record shall submit to the governmental entity that retains the record, a written request that describes and identifies the record “with reasonable specificity.” Utah Code § 63G-2-204(1)(a)(ii). The Committee finds that after a review of Mr. Amann’s third and fourth records requests, the requests were not reasonably specific. Accordingly, DPS was not required to fulfill Mr. Amann’s third and fourth records requests.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul Amann, is DENIED.
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).
Entered this 28th day of February 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
O’NEILL CHAMBERS, Petitioner, v.
CITY OF OREM, Respondent.
DECISION AND ORDER
Case No. 21-47
By this appeal, Petitioner, O’Neill Chambers, requests access to records held by Respondent, the City of Orem.
FACTS
On January 7, 2021, Mr. Chambers made a records request to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Chambers requested a copy of a police report related to an incident where Mr. Chambers was the victim of an alleged assault. Respondent provided some records but withheld other records. Mr. Chambers filed an appeal with the Orem City Manager, who provided Mr. Chambers with all remaining responsive records except for a Title VI Investigation Report from Alpine School District (“ASD”) and a Response to Discrimination Allegations Record from ASD.
Mr. Chambers filed an appeal with the State Records Committee (“Committee”). After holding a hearing on July 8, 2021, the Committee voted unanimously to continue the hearing in order to allow the Committee members to have sufficient time to properly review the records in camera. See, Chambers v. City of Orem, State Records Committee Case No. 21-39 (July 19, 2021). After holding a second hearing on September 9, 2021, the Committee 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 § 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. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy, are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
3. After having considered the arguments and evidence presented by the parties, and having reviewed the records in camera, the Committee finds that the records should not be released to Mr. Chambers because they are private records pursuant to Utah Code § 63G-2-302(2)(d). Because of the information contained within the records, release of the records would be a clearly unwarranted invasion of personal privacy.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, O’Neill Chambers, is DENIED.
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).
Entered this 20 day of September 2021
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PATRICK SULLIVAN, Petitioner, v.
SANPETE COUNTY, Respondent.
DECISION AND ORDER
Case No. 22-01
By this appeal Petitioner, Patrick Sullivan, is requesting records allegedly held by Respondent, Sanpete County.
FACTS
The present case involves four different appeals (#’s 2021-55, 2021-76, 2021-81, & 2021-83) to the State Records Committee (“Committee”) by Mr. Sullivan for requests for records made pursuant to the Government Records Access and Management Act (“GRAMA”) from Sanpete County. Because of the similar nature in the requests and involving the same governmental entity, the Committee combined the four appeals into one hearing which was held on January 20, 2022.
Appeals #2021-55 & #2021-76 involved a request for records regarding discovery for a district court case. Appeal #2021-81 involved a request for e-mail messages, chats, or hangout messages involving specified employees of the Utah Department of Corrections. Appeal #2021-83 involved a request for information referred to Sanpete County by the Utah Department of Corrections, Gunnison Prison.
The Committee held a hearing on January 20, 2022, during which the Committee considered all of the evidence and arguments presented by the parties. The Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Committee finds that Sanpete County did a reasonable search for item #’s 1, 2, & 4 in Appeal # 2021-55. Similarly, the Committee finds that Sanpete did a reasonable search for the records requested in Appeal # 2021-81. However, the Committee finds that item # 3 (the probable cause statement) in Appeal #2021-55 should be provided to Mr. Sullivan.
2. GRAMA states that 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). -201(10)(a) does not apply to: (1) The first five record requests submitted to the governmental entity by or in behalf of an individual described in -201(10)(a) 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 an individual described in -201(10)(a).
3. The Committee finds persuasive the evidence presented by Respondent that it was not required to respond to or provide a record in response to Mr. Sullivan’s records requests in Appeal #’s 2021-76 and 2021-83 pursuant to Utah Code § 63G-2-201(10)(a) because Mr. Sullivan had already made at least five records requests to Sanpete County.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, is 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 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).
Entered this 31st day of January 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NICKOLAS PARKER, Petitioner, v.
PRICE CITY POLICE DEPT., Respondent.
DECISION AND ORDER
Case No. 22-03
By this appeal, Petitioner, Nickolas Parker is requesting access to an internal affairs investigation record.
FACTS
On July 2, 2021, Mr. Parker made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Parker requested a copy of all annual performance evaluations, job description, classification, pay range, promotions, educational accomplishments, rewards/recognitions, department development opportunities, emails or another article that has his name on or in it and a copy of any disciplinary action including all internal affairs investigations. On July 12, 2021, Respondent notified Mr. Parker that they were providing all the requested records with the exception of the internal affairs investigation report. The reason given for the partial denial was that the report was protected pursuant to Utah Code § 63G-2-305(10)(d) because releasing the report could reasonably be expected to disclose the identity of a source who is not generally known outside of government.
Mr. Parker filed an appeal with the State Records Committee (“Committee”). On December 17, 2021, the Committee held a hearing during which the parties were allowed to participate. However, in order to allow the Committee members to have sufficient time to properly review the records in camera including an audio recording that had not yet been provided to the Committee by Respondent, the Committee voted unanimously to continue the hearing until the next available hearing date. See, Parker v. Price City Police Dept., State Records Committee Order No. 21-61 (Dec. 29, 2021). On January 20, 2022 after having considered the written materials, oral testimony, and oral arguments of the parties and after reviewing the audio recording in camera, the Committee 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 § 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. Records created or maintained for civil, criminal or administrative enforcement purposes, or for discipline, licensing, certification or registration purposes, are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to: (1) Interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration proceedings; (2) Interfere with audits, disciplinary, or enforcement proceedings; (3) Create a danger of depriving a person of a right to a fair trial or impartial hearing; (4) Disclose the identity of a source who is not known outside of government, and in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source; or (5) Disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts. Utah Code § 63G-2-305(10).
3. Records of a governmental entity or political subdivision regarding security measures designed for protection of persons or property, public, or private, are not subject to GRAMA. Utah Code § 63G-2-106.
4. The Committee finds the arguments made by Respondent regarding the need to keep information within the records non-public and not subject to disclosure to others including Mr. Parker to be persuasive. The Committee understands that with a small community like Price and a small police department like Respondent, release of records with only redactions of the names of the individuals may not in fact be sufficient to keep the identities of those individuals anonymous. Accordingly, the Committee agrees that release of these records must include sufficient redactions that will protect the information within the records as outlined in Utah Code § 63G-2-305(10). Accordingly, the Committee finds the following:
• Pages 1-12 are public records.
• Pages 13-26 were classified correctly, but should be redacted in order to protect sources within the record including names, pronouns, and titles pursuant to Utah Code § 63G-2-305(10).
• Pages 27-43 are public records.
• Pages 44-62 should be released as public records but with appropriate redactions to protect the names of individuals pursuant to Utah Code § 63G-2-305(10)(c).
• Pages 63-64 are public records.
• Pages 65-68 are records not subject to GRAMA pursuant to Utah Code § 63G-2-106 because they involve security measures for Respondent.
• Pages 69-83 should be released as public records but with appropriate redactions to protect the names of individuals pursuant to Utah Code § 63G-2-305(10)(c).
• Pages 84 & 85 should be released to Mr. Parker pursuant to Utah Code § 63G-2-202(1)(a)(i) because he is the subject of the record.
• Pages 86-92 are public records.
• The audio recording should be released to Mr. Parker pursuant to Utah Code § 63G-2-202(1)(a)(i) because he is the subject of the record.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nickolas Parker, is GRANTED in part and DENIED in part as outlined above.
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).
Entered this 31st day of January 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
REGINALD WILLIAMS, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 22-22
By this appeal, Petitioner, Reginald Williams seeks access to records allegedly held by Respondent, the Utah Department of Corrections (“UDC”).
FACTS
On September 17, 2021, Mr. Williams made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from UDC. Mr. Williams requested results of “all covid test; cost and maker of covid test; person(s) that authorized/performed my covid test; reason for performing the covid test.”
UDC responded on October 7, 2021 providing four pages to Mr. Williams. UDC’s response also stated that the “medical records department does not have record of who administered the test due to the fact that there are multiple providers that are doing the testing.”
In a letter dated October 16, 2021, Mr. Williams filed an appeal with the executive director for UDC. However, legal counsel for UDC has stated that there is no record of Mr. Williams’s appeal and therefore, UDC did not respond. In a letter dated November 8, 2021 and received by the State Records Committee (“Committee”) on December 6, 2021, Mr. Williams filed an appeal with the Committee. On June 2, 2022, 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.
STATEMENT OF REASONS FOR DECISION
1. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a).
2. UDC provided evidence through testimony given at the Committee’s hearing, that all records responsive to Mr. Williams’s records request were already provided to Mr. Williams. UDC claimed that a reasonable search had been made and that no other responsive records had been found.
3. The Committee finds that based upon the evidence presented to the Committee, UDC performed a reasonable search for records responsive to Mr. Williams’s records request. UDC already provided responsive records naming Mr. Williams specifically. Accordingly, UDC is not required to provide any other records to Mr. Williams.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Reginald Williams, is hereby DENIED.
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).
Entered this 13 day of June 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JENNIFER ORTEN, Petitioner, v.
SALT LAKE COUNTY, Respondent,
AMENDED DECISION AND ORDER
Case No. 22-12
We issue this Amended Decision and Order pursuant to the judicial order issued in Salt Lake County v. Utah State Records Committee and Jennifer Orten, case no. 220902520 (3 rd Dist. Ct.). In the order, the Court remanded the case back to the State Records Committee and instructed us to “explain in detail any consideration of the reasonableness of the County’s decision to deny the fee waiver and enter findings of fact on reasonableness consistent with the directive set forth in Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62.” Orten v. Salt Lake County,. Order Re: Petitioner’s Motion for Summary Judgment, case no. 220902520, DCKT no. 61 (entered May 17, 2024). Accordingly, based on the existing record, we amend and clarify our analysis in paragraph 10 and leave all other parts of the Decision and Order unchanged.
This appeal involves six records requests from Petitioner, Jennifer Orten. On February 17, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. The Committee was persuaded that not all issues regarding Ms. Orten’s records requests were ripe for review by the Committee and voted unanimously to continue the hearing in order to allow the parties time to complete all procedural steps and brief all issues for proper consideration by the Committee. See, Orten v. Salt Lake Cty., State Records Committee Order No. 22-08 (Feb. 28, 2022). On March 17, 2022, the Committee held a second hearing and determined the following.
FACTS
On or about August 31, 2021, Ms. Orten made two records requests pursuant to the Government Records Access and Management Act (“GRAMA”) to Respondent, Salt Lake County (Request #’s 1 & 2). On September 15, 2021, Ms. Orten made a records request for communications received by or sent by Salt Lake County Clerk Sherrie Swensen and Mark Pemberton (Request #3). Another records request was made on October 19, 2021, (Request #4). On November 9, 2021, Ms. Orten made two more records requests for communications by Ms. Swensen using the words “voter roll(s)” or “canvas(ing)(ers)” (Request #’s 5 & 6). With the requests, Ms. Orten also requested a fee waiver for the fees incurred producing the records.
In a letter dated September 13, 2021, Respondent’s Administrative & Fiscal Manager stated that it would take an additional twelve weeks to provide the records and suggested a narrowing of the scope of the request in order to lower the costs for Request #’s 1 & 2. In a letter dated September 29, 2021, the Administrative & Fiscal Manager stated that Request #3 would require an additional two weeks and that a response from Respondent would be received by October 13, 2021. A letter dated November 1, 2021, from the Administrative & Fiscal Manager similarly stated that payment would be required prior to fulfilling Request #4. The Administrative & Fiscal Manager stated that for Request #’s 5 & 6, an upfront payment of $278.81 would be required prior to beginning work on providing the records.
Ms. Orten filed appeals with Ms. Swensen of the Administrative & Fiscal Manager’s responses to her six records requests. Ms. Swensen denied each of Ms. Orten’s requests for a fee waiver. Ms. Orten filed appeals with Megan Hillyard, Chief Administrative Officer of Appeals for Respondent, who in a letter dated December 20, 2021, found that Request #’s 1 & 2 had not been timely filed, and that Request #4 was not ripe for appeal because a department level appeal had not yet been filed. Ms. Hillyard found that Request #’s 3, 5, & 6 should be remanded back because “the record does not justify the estimated fees.” Ms. Hillyard later issued an opinion denying Ms. Orten’s request for a fee waiver on February 3, 2022.
An appeal filed by Ms. Orten was received by the Committee on December 3, 2021. Ms. Orten has sought to have the Committee review all six records requests with this appeal. Counsel for Respondent has requested dismissal of the appeal based upon a failure to have all procedural steps completed prior to the appeal being heard by the Committee. The Committee heard arguments from the parties at its February 17, 2022, hearing and then on March 17, 2022, the Committee met again and issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Each political subdivision may adopt an ordinance or a policy applicable throughout its jurisdiction relating to information practices including classification, designation, access, denials, segregation, appeals, management, retention, and amendment of records. Utah Code § 63G-2-701(2)(a). A political subdivision shall establish an appeals process for persons aggrieved by classification, designation, or access decisions. Utah Code § 63G-2-701(5)(a). A political subdivision’s appeals process shall include a process for a requester to appeal an access denial to a person designated by the political subdivision as the chief administrative officer for purposes of an appeal under Utah Code § 63G-2-401. Utah Code § 63G-2- 701(5)(b). A political subdivision may establish an appeals board to decide an appeal of a decision of the chief administrative officer affirming an access denial. Utah Code § 63G-2-701(5)(c)(i).
2. Counsel for Respondent argued that the Committee does not have jurisdiction over Ms. Orten’s Request #’s 1, 2, & 4 because Ms. Hillyard’s jurisdiction was limited by Salt Lake County Policy 2040. Policy 2040 2.1.4 states that the Chief Administrative Officer for Appeals cannot assume jurisdiction over an appeal if the requestor files a notice of appeal more than 30 days after receiving an adverse decision from the agency designee. Policy 2040 2.1.5 specifies that a notice of appeal is considered filed when it is received and date stamped at Respondent’s office of the Chief Administrative Officer for Appeal, and “[n]o notices of appeal sent by facsimile, e-mail or any other electronic submissions will be accepted.”
Respondent argued that Request #’s 1 & 2 were filed 49 days after the October 18, 2021, decision by Ms. Swenson. Regarding Request #4, Respondent argued that Respondent’s Chief Administrative Officer of Appeals has not yet fully reviewed that appeal filed by Ms. Swenson.
3. After having considered the evidence and the arguments made by the parties, the Committee agrees with Respondent’s claim that the Committee does not have jurisdiction to review Ms. Orten’s appeal for Request #’s 1 & 2 because the appeals were filed untimely with Respondent’s Chief Administrative Officer of Appeals. The Committee finds that Ms. Orten’s appeal for Request #4 is not ripe for review by the Committee because Respondent’s Chief Administrative Officer of Appeals has yet not fully reviewed this request prior to the Committee’s review.
4. Ms. Orten argues that for Request #’s 3, 5, & 6, she is entitled to a fee waiver of the cost of providing the records. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include: (1) The cost of staff time for compiling or formatting the record into an organization or media to meet the person’s request; or (2) The cost of staff time for search, retrieval and other direct administrative costs for complying with a request. Utah Code § 63G-2-203(2)(a)(i) & (ii).
5. A governmental entity may require payment of future estimated fees before beginning to process a request if fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i). 6. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).
7. The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, 52 & 53, 435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
8. Ms. Orten argued before the Committee that a fee waiver should be granted for Request #’s 3, 5, & 6 because of the great public interest in the subject matter of the requested records. Ms. Orten stated that she is a member of the Utah Freedom Coalition which was formed to help citizens of the State of Utah become more informed and involved with the government. Ms. Orten contended that the reason for the requested records was because of public interest in the 2020 primary and general elections. As Salt Lake County Clerk, Ms. Swensen is an elected county official who has responsibilities for Salt Lake County elections. Ms. Orten claimed that the requested records involving Ms. Swensen and Mr. Pemberton would help the general public understand the government processes of the 2020 election in Salt Lake County and help promote transparency in government. Ms. Orten also presented evidence showing public interest from individuals other than herself in the information contained within the requested records.
9. The original estimate given by Respondent for providing records responsive to Request #’s 3, 5, & 6 was $17,661.81. Ms. Orten successfully argued before Respondent’s Chief Administrative Officer of Appeals that the estimated fee was excessive. Ms. Hillyard remanded the matter back to Ms. Swensen and who then found that the records could be produced at the cost of $1,769.33. Ms. Hillyard affirmed this amount in her February 3, 2022, decision, but still denied Ms. Orten’s request for a fee waiver.
10. Primarily pertinent to our analysis is Subsection 63G-2-203(4)(a), which encourages the government to fill a request without charge if (i) releasing the record primarily benefits the public, or (ii) the requester is the subject of the record. We acknowledge that the statute is permissive and “encourages” the records be disclosed without a fee rather than mandate it. We also acknowledge Salt Lake County’s arguments of the time and effort required to fill the request. However, for the following reasons, we find that the denial of the fee waiver was unreasonable.
a. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶53, instructs that when reviewing a governmental entity’s decision to deny a fee waiver, we are to look at the decision “in the context of the governing statute.” This means that we are to assess[ ] whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver: when releasing the record primarily benefits the public, the requester is the subject of the record, or the requester’s legal rights are directly implicated by the information in the record and the requester is impecunious.
Id. (referencing Subsection 63G-2-203(4)).
Although the Jordan River Court said that this sort of assessment “is not necessarily determinative,” it made clear that Subsection 203(4) was the primary lens through which to assess fee waiver decisions. See Id. The Court then went on to explain that the review should also examine any additional evidence relevant to the reasonableness of the entity’s denial, such as the “time and effort” required to fill the request, the breadth of the request, and that some requested duplicated records had already been produced. Id. at ¶54.
Consequently, under guidance from Jordan River, we are to look at Salt Lake County’s decision to deny Ms. Orten the fee waiver through the prism of Subsection 203(4)—whether the request primarily benefits the public, whether the requestor is the subject of the record, and if the requestor’s legal rights are implicated and she is impecunious—along with any additional relevant factors.
b. We acknowledge and are sensitive to the voluminous nature of the request and how filling it would require many hours and extensive effort. However, we find additional guidance from the following statement:
We recognize that permitting public entities to charge members of the public a fee to cover the cost of retrieving public records does, to some extent, limit public access to public records. While the legislature did not intend for the public records law to be a revenue measure, at the same time it did not intend for a lawful custodian to bear the
burden of paying for all expenses associated with a public records request.
Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist., 1999 UT App 136, ¶25 (quoting with approval Rathmann v. Board of Dirs. Of Davenport Comm. Sch., 580 N.W.2d 773, 778 n.5 & 778-80 (Iowa 1998)) (cleaned up). Thus, especially when fees get into the thousands, we must balance the concerns of the fee itself being a barrier to public records, the fee becoming a revenue source, and the government bearing the burden of paying for all expenses associated with the request.
c. From the materials submitted to the Committee and arguments given, we find that the records are voluminous and will require ample time and effort to compile. We also find that requested records would primarily benefit the public as they concern a topic of which there is substantial public interest: the 2020 primary and general elections within Salt Lake County and the issues raised by Ms. Orten in that election. Further, we find that Ms. Orten may well be the subject of numerous responsive records, and that a fee of nearly $2,000 for public records is high enough to impede a citizen’s access to public records.
Thus, as the Jordan River Court ruled that a correct analysis considered the factors set out in Subsection 63G-2-203(4) and additional relevant evidence such as the time and effort necessary to fill the request, we find that Salt Lake County’s CAO considered only the additional evidence—-the burden on the County—-and neglected the considerations outlined in Subsection 203(4). See Utah Code § 63G-2-401(6) (allowing the CAO to release the record upon weighing the various interests in favor of disclosure or nondisclosure).
d. While it’s true that Subsection 203(4) does not mandate a fee waiver, we conclude that always deferring to the government’s discretion without exception would essentially negate Subsection 203(4) altogether since it’s unlikely that a governmental entity would voluntarily waive its fees when it isn’t legally required to. GRAMA is clear that a governmental entity “may” charge a reasonable fee. Utah Code § 63G-2-203(1)(a). But that discretion must be checked to prevent fees from becoming either a revenue source or a de facto restriction to otherwise unrestricted public records; and there are certainly cases where, despite the burden on the government, the circumstances strongly support that GRAMA’s policy of “easy and reasonable access” to unrestricted public records overshadow the costs a governmental entity might have to bear to fill the request. Utah Code § 63G-2-102(3)(a). This is such a case.
e. In considering the prongs of Subsection 203(4)(a) & (b) which, we note, the statute requires only one prong be satisfied to encourage a fee waiver, and both are likely satisfied here, the overall fee amount being a barrier to the requested records, and the burden on Salt Lake County to bear all of the expenses to fill the request, we ultimately find the benefit to the public and Ms. Orten’s likely position as the subject of the records to be too great to give way to the fee amount assessed. As a result, we find that Salt Lake County’s decision to deny Ms. Orten a fee waiver for the amount at
issue was unreasonable.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jennifer Orten, is hereby GRANTED in part and DENIED in part as stated in this Decision and Order.
Entered this 21 day of June 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair Pro Tem, Utah State Records Committee
Committee members Cornwall, M., Williams, K., Buchanan, M., Biehler, E. and Peterson, L..
voted in favor of and joined in this Amended Decision and Order.
Enclosed: 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).
",Partially Granted,2024-06-21T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS, Petitioner, v.
HEBER CITY POLICE, Respondent.
DECISION AND ORDER
Case No. 22-18
By this appeal, Petitioner, Adam Herbets, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, Heber City Police.
FACTS
On February 1, 2022, Mr. Herbets made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Herbets requested copies of all settlement agreements, dispositions of claim, and/or nondisclosure agreements involving Heber City from January 1, 2021, through present day. On February 3, 2022, Respondent denied the request saying that the records requested are classified as private and/or protected in accordance with 63G-2-205. On February 4, 2022, Mr. Herbets appealed to Heber City, but that appeal was denied for the same reasons.
Mr. Herbets filed an appeal with the State Records Committee (“Committee”). On May 19, 2022, 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 including reviewing the responsive settlement agreement record in camera. After having carefully considered all evidence presented to the Committee, the Committee 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 § 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. Settlement agreements are governed by the rules applied to general contract actions. Pioneer Builders v. K D A Corp., 2018 UT App 206, ¶ 10, 437 P.3d 539, 541-542. Contracts entered into by a governmental entity are normally public, but to the extent that a record is expressly exempt from disclosure, access may be restricted under Utah Code § 63G-2-305. Utah Code § 63G-2-301(3)(d).
3. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records reasonably could be expected to disclose the identity of the source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source, are protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(10)(d).
4. Respondent argued that the settlement agreement should not be disclosed because it involved compelled testimony associated with internal investigations, discipline and enforcement policies. Counsel further argued that there is an ongoing investigation with the Utah Peace Officers Standards and Training (“POST”) related and involving one of the parties to the agreement, and that disclosure of the settlement agreement could reasonably be expected to interfere with that investigation.
5. After having reviewed the settlement agreement in camera, the Committee agrees with Respondent’s arguments and determined that the individuals named within the agreement should remain non-public pursuant to Utah Code § 63G-2-305(10)(d). Although government contracts are normally public pursuant to Utah Code § 63G-2-301(3)(d), because of the roles of the individuals and the current POST investigation, the Committee finds that redactions of these names would be proper prior to release of the settlement agreement. See also, Utah Code § 63G-2-308.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, 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 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).
Entered this 31 day of May 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY TANNER, Petitioner, v.
UNIVERSITY OF UTAH, Respondent.
DECISION AND ORDER
Case No. 22-27
By this appeal, Petitioner, Courtney Tanner, an investigative reporter with The Salt Lake Tribune, seeks access to records allegedly held by Respondent, University of Utah.
FACTS
On February 14, 2022, Ms. Tanner, on behalf of the Salt Lake Tribune, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Ms. Tanner requested any police reports regarding two University of Utah students, Haoyu Wang and Zhifan Dong. In February 2022, Wang was charged with a felony for the murder of Dong. Ms. Tanner stated in her request that she is “a journalist working to benefit the public by informing people about this tragic case involving two U. students, one who was murdered.” Ms. Tanner also made a request for a fee waiver. On March 4, 2022, the Police Records Manager for Respondent denied the request, finding the records to be protected pursuant to Utah Code § 63G-2-305(10) and private pursuant to Utah Code § 63G-2-302(2)(d).
In a letter dated March 8, 2022, Ms. Tanner filed an appeal with Respondent’s Administrative Manager, arguing that initial contact reports involving Dong and Wang should be public. Tanner also argued that any “claims of privacy are outweighed by the public’s right to know how a university responded and what a university knew before a student was killed in a case that is known to the public already.” On March 15, 2022, Todd Samuelson, Chief Administrative Officer and Appeals Officer for Respondent, denied the appeal finding that the records had been appropriately classified. Mr. Samuelson found that the “current release of such records may interfere with current investigations and are thus remaining protected at this time.”
Ms. Tanner filed an appeal with the State Records Committee (“Committee”). On June 16, 2022, 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.
STATEMENT OF REASONS FOR DECISION
1. GRAMA specifies that a “record is 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. Initial contact reports are normally public, but to the extent that a record is expressly exempt from disclosure, access may be restricted pursuant to Utah Code § 63G-2-302. Utah Code § 63G-2-301(3)(g). Initial contact reports are defined by GRAMA as an initial written or recorded report prepared by peace officers engaged in public patrol or response duties describing official actions initially taken in response to the discovery of an apparent violation of law. Utah Code § 63G-2-103(14)(a).
3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).
4. Counsel for Respondent argued that a search for records responsive to Ms. Tanner’s records request resulted in one police report. Counsel stated that the “police report at issue in this appeal relates to the death of a University student and an active murder prosecution against another University student.” Counsel further stated that the Salt Lake County District Attorney’s Office instructed Respondent to not produce any records related to the case, including the initial contact report, until the investigation “is complete and the pending case has been adjudicated.”
5. After having considered all of the arguments of the parties, and having reviewed the record in camera, the Committee finds that the record is an initial contact report and should be classified as a public record pursuant to Utah Code § 63G-2-301(3)(g). The Committee also finds that information contained within the record should be redacted pursuant to Utah Code § 63G-2-302(2)(d) because disclosure of the information would constitute a clearly unwarranted invasion of personal privacy. The Committee finds that any fees associated with the production of this document should be paid.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Courtney Tanner, is hereby GRANTED.
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 governmental 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 28 day of June 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ERIC PETERSON, Petitioner, v.
UTAH INLAND PORT AUTHORITY, Respondent.
DECISION AND ORDER
Case No. 22-34
By this appeal, Petitioner, Eric Peterson, a reporter with the Utah Investigative Journalism Project, seeks access to records held by Respondent, the Utah Inland Port Authority.
FACTS
On March 4, 2022, Mr. Peterson made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Peterson requested access to “Working Paper 2” Mr. Peterson’s records requests were denied by Respondent based upon the records being protected under §63G-2-305(22).
Mr. Peterson filed an appeal with the State Records Committee (“Committee”). On August 18, 2022, 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. The Committee viewed the records in camera. After having carefully considered all evidence presented to the Committee, the Committee unanimously issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Utah Code Annotated §63G-2-305(22) provides that “drafts, unless otherwise classified as public” are “protected.”
2. The Committee was tasked with determining (a) if a draft must be created by the governmental entity and (b) if a draft can be invoiced separately from the final product.
3. The Committee determines that the Respondent properly classified “Working Paper 2” as a draft.
4. First, the Committee agrees with Respondent that a “draft” can be created by a private entity if it is created, pursuant to agreement, for the governmental entity’s benefit. In this case, there was evidence presented that “Working Paper 2” was created for the benefit of Respondent. Respondent provided input on the materials and had exclusive use materials.
5. Second, though this was invoiced as a separate document, the Committee accepts that it was a “draft.” Respondent offered evidence that it was only circulated to 3 people within the Utah Inland Port Authority and those individuals provided comment on this material so it could be converted to a final presentation. Upon review of the record, it is also apparent that large portions of it were utilized in the final presentation to the Respondent.
6. Utah Code Annotated §63G-2-403(11)(b) provides, “Except as provided in Section 63G-2-406, the State Records Committee may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private, controlled, or protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access.”
7. The Committee considered “Working Paper 2” in camera and found that the public interest was not greater than or equal to the interest in maintaining the classification of the record.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is hereby DENIED.
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).
Entered this 29 day of August 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
WEST VALLEY CITY, Respondent,
DECISION AND ORDER
Case No. 24-11
By this appeal, Brady Eames (“Petitioner”), requests a fee waiver and records allegedly held by West Valley City (“WVC”) (“Respondent”).
FACTS
On August 30, 2023, Petitioner submitted two requests to Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the “statutorily required public biannual report that reveals the public funds deposited and pooled in the [Public Treasurer’s Investment Fund] by the public treasurer of [West Valley City Municipal Corporation] for investment by the State Treasurer as of June 30, 2023 (D&I Report).” In conjunction with his request, he also asked for a fee waiver because Petitioner “believe[ed] that the D&I Report is a vital public record.”
However, in an email four days later, Respondent replied to Petitioner informing him that his request wouldn’t be processed because he never paid a $49.03 fee that was assessed on a record request he submitted back on January 10, 2019 (“2019 Request”). Respondent stated that it would not process the current request until that owing balance was paid. After an attempt to gain further information about the owing fee, Petitioner ultimately appealed to Respondent’s chief administrative officer who affirmed the decision not to process the request until that owing fee was paid.
Petitioner has now appealed to the State Records Committee (“Committee”), On January 18, 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
We are asked to determine whether Respondent may refuse to process the current request due to a back-owing fee.
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, in enacting GRAMA, the legislature also sought to balance the public’s right to access records with the burden shouldered by government in receiving “time-consuming and burdensome records requests.” Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136, ¶23. This balance is struck by the government’s ability to assess fees for certain requests. See Utah Code § 63G-2-203. If a fee is assessed on a request and the requestor files a new request in the future, the governmental entity “may require payment of past fees . . . before beginning to process the request if: (ii) the requester has not paid fees from previous requests.” Utah Code § 63G-2-203(8)(a)(ii).
When it comes to fees, the Graham court instructed that a governmental entity must, “prior to compiling records and imposing a fee, [ ] inform the requester that fees will be assessed and, if so desired, allow the requestor to modify or withdraw the request based on this information.” Id. ¶27. Therefore, it stands to reason that if a governmental entity does not allow the requestor the opportunity to withdraw or modify the request after learning about the assessed fee, the Graham rule is violated and the fee cannot be enforced.
Here, the record reflects that upon Respondent informing Petitioner that a $49.03 fee would be assessed for the 2019 Request, Petitioner replied back saying,
“Before I pay any fees, please provide me the following:
(1) Standards of classification and designation with respect to each document that I’ve requested (UC 63G-2-701(3)(a).
(2) Consolidated fee schedule with respect to the actual cost of providing me each document that I’ve requested (UC 63G-2-203(3)(c) and -701(3)(c) and WVCMC Code 3-16a-302).
(3) An itemization of the actual cost of providing me each document that I’ve requested (UC 63G-2-203(2)). And
(4) Executive officer’s approval of each fee covering the actual cost of providing me each of the documents that I’ve requested. (UC 63G-2-203(1)).”
Upon receiving Petitioner’s reply, Respondent followed up the same day asking for clarification on whether Petitioner was making a new record request or merely suggesting that Utah law requires that such records must be provided with his requested records. But Petitioner never responded; he only commenced this appeal.
We find that Petitioner’s email stating “Before I pay any fees, please provide me [additional records]” indicated that Petitioner agreed to proceed with the 2019 Request after learning about the assessed $49.03 fee. As a result, GRAMA allows Respondent to require payment for the 2019 Request before beginning to process the current request.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 29 day of January 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JARED KUMMER, Petitioner, v.
SEVIER SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 24-30
Due to the number of records we need to review in this matter, this appeal is continued to June 20, 2024.
It is so ordered.
Entered this 20 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DOUGLAS HULSE, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent,
DECISION AND ORDER
Case No. 24-36
The parties have stipulated to continue this appeal. Accordingly, this matter is continued to June 20, 2024.
It is so ordered.
Entered this 20 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Cornwall, M., Williams, K., Buchanan, M., and Dubovik, N. voted in favor of and joined in this Decision and Order.
Committee members Dean, N. Chairperson voted in opposition.
enclosed: Right of 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 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).
",Continuance,2024-05-20T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL SMITH, Petitioner, v.
CANYONS SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 24-05
By this appeal, Michael Smith (“Petitioner”), requests records allegedly held by Canyons School District (“Respondent”).
FACTS
At the end of the 2023 baseball season, Petitioner and other parents and players of the Brighton High School baseball team have the opportunity to evaluate and provide feedback on the baseball coaches’ performance in the “2022-2023 Brighton High School Postseason Athletics Review.” This information is gathered by the school’s Assistant Principal and shared with the principal and athletic director. The surveys present multiple questions in which the answers are based on a satisfaction scale of 1 to 5 and the player or parent circles the number best representing their feelings on the subject matter of the question. Also, there is one element of the survey where the player or parent can provide a narrative and detailed answer as feedback to the school. This player and parental feedback is one of the tools utilized by the school’s principal in making employment decisions among the coaching staff for the following season.
On August 3, 2023, Petitioner submitted a request to Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the following: “All submitted surveys for 2022-2023 postseason Athletics Review for Brighton High School Baseball program. Title of document is ‘2022-2023 BHS Postseason Athletics Review.’"
On August 9, 2023, the Respondent denied the request saying that “Brighton’s administration shares the results with its coaches during annual evaluations and uses the data to set performance goals and make staffing decisions. Per Utah’s GRAMA law (63G-2-302)(2)(a), Canyons District classifies employee performance evaluations as private.” On the same day, Mr. Smith appealed the denial to the Respondent’s chief administrative officer who upheld the original decision.
Petitioner has now appealed to the State Records Committee (“Committee”). On January 4, 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 student and parental evaluations of the baseball coaches are correctly classified and withheld.
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, if a record is classified as private, controlled, or protected, then it is not a public record. Utah Code § 63G-2-201(3)(a). Section 302 classifies as private any “records concerning a current or former employee of . . . a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, . . .” Utah Code § 63G-2-302(2)(a). If a record is correctly classified as private, this Committee has the authority to “[weigh] the various interests and public policies pertinent to the classification and disclosure or nondisclosure” and order that the records be disclosed if “the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b).
At the hearing, the Committee moved to view the records in camera pursuant to Subsection 63G-2-403(9)(a). Upon doing so, we make the following findings.
The evaluations are simple questionnaires that essentially direct the player or parent to answer each question by indicating their satisfaction level on a scale from 1 to 5. From the survey, only four questions apply to the baseball program generally. All other questions apply to the coach or coaches and their performance during the season. Respondent testified that these surveys are used to conduct an overall evaluation of the coaches but are not part of the coach’s individual personnel file. Rather, the returned surveys are retained in a Google drive folder.
While Respondent argues that these informal player and parent surveys constitute the “performance evaluations” contemplated by Subsection 302(2)(a), Petitioner essentially argues in response that Subsection 302(2)(a) does not shield the records because they are merely feedback provided by players and parents and are a public record. Whether an informal survey could constitute a “performance evaluation” of a public employee is an interesting question, we ultimately find that Subsection 302(2)’s breadth pulls the surveys under its umbrella. The statutory language is more encompassing than restrictive. The language states, “records concerning a current or former employee . . . , including performance evaluations. . . .” Utah Code § 63G-2-302(2)(a). This means that any record that concerns a public employee is private, and performance evaluations are just an example. See Utah Code 68-3-12(1)(f). Therefore, because the surveys contain questions directly related to the coach, the surveys do concern him as an employee of the high school. Consequently, we find that to the questions pertaining to the coach, that information is private.
Naturally, questions pertaining to the baseball program in general are not protected under Subsection 302(2)(a) because they concern the program and not an employee. Accordingly, all questions and responses relating to the program are public record and cannot be restricted. However, in doing so, Respondent shall provide anchor points on the survey questions and responses so that Petitioner may understand how the scale of 1 to 5 is weighted (e.g., 1 means very dissatisfied; 3 means neutral; 5 means very satisfied; or whatever the case may be).
In finding that the surveys contain private elements, we now turn to the weighing of interests to determine if access should be granted.
Respondent testified that the coaches work on a largely volunteer basis receiving only a stipend for their compensation. The feedback in the surveys is examined by school administrators and used to constructively assist the coach (or implement appropriate discipline) in improving their overall performance in the coming year. The feedback can be quite personal and detailed, and the information obtained from the surveys have been used in the past to suspend at least one coach and not renew the employment of another. If the surveys were released and they contained derogatory, harsh, or negative feedback, that information could result in embarrassment, humiliation, or reputational damage. For that, we find that the various interests and policies favoring access are not equal to nor outweigh the interests favoring restriction. Accordingly, Respondent may withhold the feedback relating to the coach(es), as it delivers the feedback oriented toward the program. See 63G-2-308.
ORDER
THEREFORE, in accordance with our Decision above, the appeal is hereby GRANTED in part and DENIED in part. Respondent shall release the distribution on the four questions about the baseball program, the four questions and answers that pertain to the baseball program; and shall provide anchors to the survey responses so that Petitioner can understand how the scored answers are weighted. Respondent may then withhold those portions of the surveys that pertain to individual coaches.
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).
Entered this 16 day of January 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
COURTNEY TANNER, Petitioner, v.
UTAH SYSTEM OF HIGHER EDUCATION, Respondent,
DECISION AND ORDER
Case No. 24-16
By this appeal, Courtney Tanner (“Petitioner”), requests records allegedly held by Utah System of Higher Education (“Respondent”).
FACTS
This matter concerns three separate record requests that Petitioner submitted to the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). The requests were all denied for various reasons with the Respondent’s records officer determining that various provisions of GRAMA shielded the requested records or that no responsive records were available.
Petitioner’s three requests sought the following:
Petitioner eventually appealed the denials to the State Records Committee (“Committee”). On February 15, 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.
ORDER
Pursuant to Subsection 63G-2-403(8)(b), the Committee initiated a review of the records in camera. However, due to the number of records to review, the Committee moved to continue this hearing to allow it time to thoroughly review the records.
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby CONTINUED until March 21, 2024.
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).
Entered this 26 day of February 2024
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL CLARA, Petitioner, v.
UTAH STATE BOARD OF EDUCATION, Respondent.
DECISION AND ORDER
Case No. 22-41
By this appeal, Michael Clara (“Petitioner”) seeks access to records alleged to be held by the Utah State Board of Education (“Respondent”).
FACTS
On or about May 16, 2022, Mr. Clara made a request for a fee waiver and for records, pursuant to the Government Records Access and Management Act (“GRAMA”). In his request, Petitioner asked for "copies of all records that the Utah UPPAC [Utah Professional Practices Advisory Commission] members and staff created, obtained and reviewed.” Petitioner also requested a fee waiver on the grounds that the release of requested records would be in the public interest and that he, Petitioner, is the subject of the records. Respondent partially granted and partially denied Petitioner’s request on May 18, 2022. Respondent provided three responsive email chains and a redacted copy of the UPPAC agenda. However, Respondent also withheld one email, which it classified as protected by attorney-client privilege pursuant to Utah Code § 63G-2-305(17). On May 20, 2022, Mr. Clara appealed to Respondent’s Chief Administrative Officer (“CAO”), who upheld the denial for access to the one email withheld, confirming the classification of the email as protected by attorney-client privilege.
An appeal filed by Petitioner was received by the State Records Committee (“Committee”) on June 6, 2022. The State Records Committee held a hearing on September 15, 2022, where the parties were allowed to present their evidence and legal arguments. The Committee voted to review the disputed records in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
The first question is whether the record in question was properly classified as protected under Utah Code § 63G-2-305(17). The Committee finds the record in question was properly classified as protected. Respondent established that there was an attorney-client relationship between the communicants to the record, that the records in question contained a transfer of confidential information, and that the purpose of the transfer was to obtain legal advice. As such, the record was properly classified as protected.
The second question is whether Petitioner has established by a preponderance of the evidence that the public interest favoring disclosing the record is equal to or greater than the interest favoring restricting access to the record. The Committee finds that Petitioner has not established by a preponderance of the evidence that the public interest favoring disclosing the record is equal to or greater than the interest favoring restricting access to the records. As such, the Committee will not order Respondent to provide the record in question.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Clara, is hereby DENIED.
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).
Entered this 26 day of September 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MIKE BROWN, Petitioner, v.
DAVIS SCHOOL DISTRICT, Respondent.
DECISION AND ORDER
Case No. 22-33
By this appeal, Petitioner, Mike Brown, requests a fee waiver for records held by Respondent, the Davis School District.
FACTS
On January 11, 2022, Mr. Brown made a request for records from Respondent. Mr. Brown was informed that there would be a cost of approximately $935.00 for the requested records. Mr. Brown filed an appeal claiming that he had a right to the requested records because he was the subject of the records requested. Davis School District denied Mr. Brown’s request to “freely inspect” the requested records stating that the Government Records Access and Management Act (“GRAMA”) “allows a governmental entity to charge a fee for the cost of providing a record.”
In an e-mail dated March 14, 2022, Mr. Brown filed an appeal with the State Records Committee (“Committee”). On August 18, 2022, 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.
STATEMENT OF REASONS FOR DECISION
1. A person has the right to inspect a public record free of charge and take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include: (1) The cost of staff time for compiling or formatting the record into an organization or media to meet the person’s request; or (2) The cost of staff time for search, retrieval and other direct administrative costs for complying with a request. Utah Code § 63G-2-203(2)(a)(i) & (ii).
3. A governmental entity may require payment of future estimated fees before beginning to process a request if fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i).
4. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).
5. The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
6. Having considered the evidence, the Committee first finds that the records requested are not capable of public inspection. Petitioner sought electronic communications of individuals within the Respondent school district.
7. The Committee also finds that the agency’s decision to deny the fee waiver was not unreasonable. The agency properly considered the Petitioner’s status as subject of the record against the needs of the agency. The Respondent offered credible evidence supporting the estimated costs assessed. Additionally, the Respondent offered credible evidence that the search Petitioner requested that the agency undertake would yield nonresponsive records, as well as records that would require redaction or removal from disclosure.
8. The Committee is also not persuaded by Petitioner’s argument that the permissive language of Utah Code § 63G-2-203(4) should be read as a mandate for the agency to provide records free of charge to a requestor who is the subject of the records. Treating “may” as “shall” would undermine the plain language of the statute and it would conflict with the language at Section 63G-2-203(1), which allows as agency or entity to charge a fee associated with the cost of compiling a record. If “may” must be replaced with “shall” throughout the applicable code provisions, an agency would be required to charge a fee and also prohibited from doing so. This would work an absurd result.
9. Finally, the Committee declines to find that the Utah Constitution requires free access to records in this case. Constitutional questions are generally outside the scope of the Committee’s review. However, it is apparent that Petitioner is relying on a constitutional provision related to criminal trial rights. The Committee takes no position on whether records would be available to the Petitioner in a criminal trial.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mike Brown, is hereby DENIED.
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).
Entered this 29 day of August 2022
BY THE STATE RECORDS COMMITTEE
_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
BRADY EAMES, Petitioner, v.
LOGAN CITY, Respondent.
DECISION AND ORDER
Case No. 22-42
By this appeal, Petitioner, Brady Eames, requests a fee waiver for records held by Respondent, Logan City.
FACTS
On February 18, 2022, Mr. Eames made a request to inspect records from Respondent. Mr. Eames was informed that there would be a cost of $120.00 for the record request. Mr. Eames filed an appeal to Holly Daines, Logan City Mayor, claiming that he had the right to freely inspect the requested records because the records are “current fundamental and primarily beneficial public records.” Ms. Daines denied Mr. Eames’ request to “freely inspect” the requested records stating that the Government Records Access and Management Act (“GRAMA”) “allows a governmental entity to charge a fee for the cost of providing a record.”
In an e-mail dated April 24, 2023, Mr. Eames filed an appeal with the State Records Committee (“Committee”). On September 15, 2022, 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.
STATEMENT OF REASONS FOR DECISION
1. A person has the right to inspect a public record free of charge and take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a).
2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include: (1) The cost of staff time for compiling or formatting the record into an organization or media to meet the person’s request; or (2) The cost of staff time for search, retrieval and other direct administrative costs for complying with a request. Utah Code § 63G-2-203(2)(a)(i) & (ii).
3. A governmental entity may require payment of future estimated fees before beginning to process a request if fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i).
4. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).
5. The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).
6. After having considered all the evidence and arguments presented by both parties, the Committee finds that Respondent’s denial of Mr. Eames’ request for a fee waiver was not an unreasonable denial. Mr. Oaks stated in his denial that “I find no justification to waive the fee based on” Utah Code § 63G-2-203(4). This determination is supported by the evidence in the record. Accordingly, the Committee upholds Respondent’s denial of Mr. Eames’ request for a fee waiver.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames, is hereby DENIED.
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).
Entered this 26 day of September 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
AZLEN MARCHET, Petitioner, v.
UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.
DECISION AND ORDER
Case No. 22-48
By this appeal, Azlen Marchet (“Petitioner”), requests records allegedly held by Utah Department of Public Safety (“Respondent”).
FACTS
The undisputed facts are as follows. In 2007, Petitioner was charged with rape. He pleaded not guilty at trial but was ultimately convicted. Evidence pertinent to those charges was a rape kit that, evidently, was never tested until several years after the trial was over and Petitioner had been convicted. Petitioner believes the results of the rape kit are exculpatory to his conviction. Petitioner filed a request under the Government Records Access and Management Act (“GRAMA”) on April 24, 2022 with the Utah Bureau of Forensic Service seeking the results of the kit. In a response dated May 17, 2022, The Bureau denied the request claiming the records were protected under § 63G-2-305(10) and that in order to release the records, Petitioner needed a release as required under Utah Code § 63G-2-202(4)(b)(ii) which he did not have. The Bureau determined that because Petitioner did not meet the requirements of Utah Code § 63G-2-202(4), which outlines the permissible disclosure of protected records, the results of the kit would not be disclosed. Since the Bureau is a subagency of the Utah Department of Public Safety (“Department”), Petitioner appealed the denial to the chief administrative officer for the Department, Melanie Marlowe. Ms. Marlowe reviewed the appeal and the results of the kit at issue and determined that because the results contained no specific reference to Petitioner by name the record was protected under Utah Code § 63G-2-305(10) and Ms. Marlowe upheld the Bureau’s denial.
Ms. Marlowe also noted in her decision that because Petitioner is currently incarcerated, Utah Code § 63G-2-201(1)(a) does not require a governmental entity to respond to or provide records to a GRAMA request unless the requested record contains a specific reference to the individual. She informed Petitioner that the results of the kit do not contain a specific reference to him.
Petitioner now appeals to the State Records Committee (“Committee”) challenging Respondent’s denials. On November 17, 2022, 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.
STATEMENT OF REASONS FOR DECISION
The GRAMA maintains 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, access to a requested record is governed by statute, and certain statutes outside of the GRAMA may expressly restrict access. In the event access to a record is restricted under a statute outside of the GRAMA, then disclosure of the record is governed by the provisions of that statute. Utah Code § 63G-2-201(6)(a).
The records sought in this case contain DNA-related information and are currently held by the Department’s Bureau of Forensic Service (“Bureau”). Because of this, we must acknowledge that the requested records are governed by the Criminal Investigations and Technical Services Act (“CITSA”), which governs the Bureau and its records. Section 406(3)(a) of the CITSA prescribes, “In accordance with Section 63G-2-305, each DNA specimen and associated record is classified as protected.” Utah Code § 53-10-406(3)(a). Thus, as the records sought in this appeal contain DNA-related information and are governed by CITSA, we find that Respondent has properly classified the records as “protected” under the law.
When determining whether to disclose a record that is protected, Section 63G-2-202(4) states that if the requester is not the individual who submitted the record, then the requester must obtain a notarized release from all persons and governmental entities whose interests “were sought to be protected by the protected classification . . . .” Utah Code § 63G-2-202(4)(a)(b). Without such releases, a requester would need a court order. Utah Code § 63G-2-202(4)(c)(i). Here, we find that it was Sandy City that submitted the record to the Bureau, not Petitioner. Consequently, Petitioner needs to obtain a notarized release from Sandy City authorizing the Bureau to release the records to Petitioner. Without a proper release, Petitioner’s sole remedy would be an appeal of this order for judicial review pursuant to Utah Code § 63G-2-404 seeking a court’s order to release the records.
ORDER
THEREFORE, for the foregoing reasons, it is hereby ordered that Petitioner’s appeal is DENIED.
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).
Entered this 27th day of December, 2022.
BY THE STATE RECORDS COMMITTEE
_________________________________________
NANCY DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL CLARA, Petitioner, v.
UTAH STATE BOARD OF EDUCATION, Respondent,
DECISION AND ORDER
Case No. 24-32
By this appeal, Michael Clara (“Petitioner”), requests records allegedly held by Utah State Board of Education (“Respondent”) (“USBE”).
FACTS
On December 22, 2023, Petitioner filed a record request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner sought “all email and text correspondence you had (to, from, cc, bcc, including attachments) with anyone in reference to my records request of September 7, 2023 (board member Boggess and Green emails) for the period of 09/06/2021 to 09/24/2021.” The Respondent provided three responsive emails and withheld three others claiming they were protected under Section 63G-2-305 because they were subject to attorney-client privilege. Petitioner appealed the response to the Respondent’s chief administrative officer (“CAO”), who upheld the decision.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On May 9, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under Utah law, “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). But a record that is protected under Section 63G-2-305 is not a public record. Utah Code § 63G-2-201(3)(a). “Only a record specified in . . . Section 63G-2-305 may be classified . . . protected.” Utah Code § 63G-2-305(4). With respect to records between attorney and client, the Code protects the following:
(17) records that are the subject of attorney-client privilege;
(18) records prepared for or by an attorney, . . . employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding.
Utah Code § 63G-2-305(17)-(18). If a record is properly classified under Subsection 305(17) and (18), this Committee may order the records be disclosed if the evidence to determine if the evidence favoring disclosing the record is equal to or outweighs the interest favoring restriction. Utah Code § 63G-2-406(1).
At the hearing, the Committee reviewed the disputed records, including their attachments, in camera pursuant to Utah Code § 63G-2-403(9) (permitting the Committee to review disputed records in camera). Upon review, we find that the first two records, identified as 020-001 and 020-002 are not responsive to the request. We find that the third record, 020-003, is classified correctly because it meets the three prongs required for attorney-client privilege—(1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the purpose of the transfer of information was to obtain legal advice. Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶33. We further find that the record is also classified protected under Subsection 305(18) which, in essence, protects attorney work product.
In examining whether the record should be released, we note that GRAMA holds a higher burden of proof to release records classified as attorney-client privilege and attorney work product. Where normally we would weigh the various interests between disclosure and restriction as called for under Subsection 63G-2-403(11)(b), for records protected under 305(17) and (18) we must find that “the party seeking disclosure of the record has established, by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1). Here, we find that Petitioner has not met that burden.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 20 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Cornwall, M., Williams, K., Buchanan, M., and Dubovik, N. voted in favor of and joined in this Decision and Order.
",Denied,2024-05-20T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SYDNEE GONZALEZ, Petitioner, v.
UTAH DEPARTMENT OF WORKFORCE SERVICES, Respondent,
DECISION AND ORDER
Case No. 24-40
By this appeal, Sydnee Gonzalez, for the Utah Investigative Journalism Project (“Petitioner”), requests records allegedly held by Utah Department of Workforce Services (“Respondent”).
FACTS
On December 4, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner’s requested the following:
Emails and other communications from 5/1/23 through 7/31/23 regarding Utah’s Medicaid unwinding plan or Medicaid enrollment between any of the following: DWS Deputy Director Kevin Burt; Jeff Nelson (Utah Department of Health Bureau of Eligibility Policy): Utah Medicaid director Jennifer Strohecker; and/or Reps. Karianne Lisonbee, Ken Ivory, Brad Wilson, Casey Snider, Val Peterson, Robert Spendlove and Jordan Teuscher. Possible search terms include but aren’t limited to: Medicaid unwinding, unwinding eligibility, Medicaid coverage, Medicaid enrollment and/or unenrollment, continuous Medicaid eligibility, Medicaid, and Medicaid review(s).
On December 15, 2024, the Respondent responded that the request would take longer than five days to compile. Then, on January 12, 2024, the Respondent emailed Petitioner all correspondences that were responsive to her request. Some of the emails contained redactions and one references a “text discussion” that occurred between Kevin Burt, the Deputy Director for the Eligibility Services Division, and Nate Checketts (“Checketts”), Deputy Director for Healthcare Administration at the Department of Health and Human Services. The referenced text discussion is the sole issue of this appeal.
On January 17, 2024, Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”) challenging the redactions and whether all responsive records were produced. The CAO upheld the denial in a decision dated January 22, 2024, indicating that no responsive records were withheld and finding that the redactions were to segregate non-responsive records, not to withhold private or protected records.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On May 16, 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 Respondent satisfied its duty to respond concerning the “text discussion” referenced in one of the responsive correspondences.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). When an individual submits a GRAMA request to a governmental entity, the entity must “conduct a reasonable search” for the requested record. Utah Code § 63G-2-201(7)(b). For this, the governmental entity bears the burden of showing, by a preponderance of the evidence, that its search efforts were reasonable. Utah Administrative Code R35-1-3(1)(a).
The Respondent primarily argues that the text discussion is a “transitory correspondence,” which is defined by the Division of Archives and Records Services as:
Incoming and outgoing correspondence, regardless of format or mode of transmission, related to matters of short term interest. Transmittal correspondence between individuals, departments or external parties containing no final contractual, financial or policy information. This correspondence does not impact agency functions. When resolved, there is no further use or purpose.
Utah General Retention Schedule, Transitory Correspondence (GRS-1759), effective 05/2014. The Respondent claims that the text communication was a reminder for Mr. Burt to work on the Medicaid unwinding report requested by legislators, as well as a draft of points to include in the report, and that once the report was completed, the text communication had no further use. Because of this, and because the retention schedule allowed for the disposal of the text communication, the Respondent says it has no record of the text communication.
Given the information we have about what the text communication was, we are not prepared to concede that the record is a transitory correspondence. For a correspondence to be considered transitory, all of the elements of GRS-1759 must be met, not just some. If the text messages contained a draft of points to include in a report requested by legislators, then they likely hold more long-term interest than short-term, and they most certainly impact the agency’s functions. Consequently, we find the Respondent’s argument unconvincing.
In concluding that the text communications are likely not transitory, we can’t make a finding on whether the messages contain or comprise a draft protected by GRAMA without first reviewing them. Therefore, because Mr. Burt created and was a party to the communications, we find that a reasonable search would entail contacting Mr. Checketts and requesting a copy of the communications from his device. See Cooperstein v. University of Utah, Decision and Order no. 24-13, Utah State Records Committee (entered Feb. 26, 2024) (finding that not attempting to gather records from a former employee failed the reasonable search standard). If upon doing so, the record is produced, we may then review it to determine if disclosure is warranted.
ORDER
THEREFORE, in accordance with our Decision, the Respondent shall contact Mr. Checketts and request the subject record. If the record is produced, the Respondent shall provide it to the Committee for our review. This appeal is hereby CONTINUED for the Respondent to comply.
It is so ordered.
Entered this 24 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Cornwall, M., Williams, K., Biehler, E., Buchanan, M., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.
Enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WENDY HALLORAN, Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
Case No. 22-50
By this appeal, Wendy Halloran (“Petitioner”), an investigative reporter with KUTV Channel 2 News, requests records allegedly held by Utah Department of Corrections (“Respondent”).
FACTS
This appeal concerns a request pursuant to the Government Records Access and Management Act (“GRAMA”) for records relating to a tragic accident that occurred on May 2, 2022. Because the facts of the accident are relevant to Petitioner’s request and the analysis the State Records Committee (“Committee”) must undertake to decide this appeal, we give a brief account of the incident.
On May 2, 2022, Kent Cody Barlow was operating a vehicle while allegedly under the influence of methamphetamine. Mr. Barlow was driving at a reckless rate of speed (over 100 miles per hour), lost control of the vehicle, and swerved into an adjacent corral where two young boys, both three-years old, were playing with toy trucks. Mr. Barlow was unharmed in the accident, but, horribly, the vehicle struck and killed the two toddlers. The facts surrounding the senseless accident are so tragic, the story grabbed both local and national headlines.[1]
On June 20, 2022, Petitioner filed with Respondent a GRAMA request for the “supervision history notes” and “offender history report” on Mr. Barlow as he was on parole at the time of accident. The request was limited to records relating to the time period of January 29, 2019 through the day immediately following Mr. Barlow’s arrest on May 2, 2022. Matt Anderson, the Director of Administrative Services for the Department, sent Petitioner a letter that included the requested supervision notes, but large portions of the record had been redacted. Mr. Anderson stated that the portions of the documents had been redacted on the bases that (1) disclosing the information would interfere with the control and supervision of an offender’s parole (Utah Code §63G-2-305(13)), (2) disclosure would reveal recommendations based on the individual’s supervision and treatment (Utah Code § 63G-2-305(14)), (3) the records contain medical and treatment data (Utah Code § 63G-2-302(1)(b)), and (4) that disclosing the data would constitute an unwarranted invasion of personal privacy (Utah Code § 63G-2-302(2)(d)).
On July 27, 2022, Petitioner submitted an appeal to James Hudspeth, Deputy Director for the Department and chief administrative officer for records requests, disputing the validity of the redactions. Mr. Hudspeth responded to the appeal on August 12, 2022, determining that some of the redacted information could be disclosed but the other redactions were proper. In accordance with his decision, the Department unredacted some of its initial redactions and delivered the documents to Petitioner.
Not satisfied with the decision, Petitioner filed this appeal with the Committee requesting our review of the remaining redacted information but narrowing her request to (1) the substance abuse treatment for Mr. Barlow (including the results of any drug tests), and (2) the supervision notes related to Mr. Barlow – specifically, information related to any parole violations and the related recommendations for what actions should be taken.
On November 17, 2022, 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.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, this right does not go unqualified. In relation to records concerning prison inmates – those on probation or parole – the GRAMA restricts records access if the disclosure would “interfere with the control and supervision of an offender’s . . . treatment, probation, or parole,” and when the records would “reveal recommendations made to the Board of Pardons and Parole by an employee or contractor . . . that are based on the employee’s or contractor’s supervision, diagnosis, or treatment” of the individual. Utah Code § 63G-2-305(13)-(14). Additionally, the GRAMA classifies records as “private” when the records contain medical data, and when their disclosure would constitute an unwarranted invasion of privacy. Utah Code §§ 63G-2-302(1)(b) & (2)(d). But despite these defenses to disclosure, the Committee may override those statutory protections and order the governmental entity to provide the requested records if the Committee finds that public interest favoring access is greater than or equal to the interest favoring restriction. Utah Code § 63G-2-403(11)(b). As Petitioner is a member of the media, Respondent does not challenge whether her request is for the public interest. See Utah Code § 63G-2-204(5). Therefore, we allow that presumption to stand. Our task then is to analyze whether (1) the disputed redactions in the responsive records are proper under the GRAMA, and (2) whether the public’s interest in obtaining the redacted information is greater than or equal to Respondent’s interest upholding the redactions.
At the hearing, and in accordance with its legal authority to examine disputed documents, the Committee voted to view the unredacted records in camera. See Utah Code § 63G-2-403(9)(a)(i)-(ii). The Committee found in its review that the redactions protected information relevant to Mr. Barlow’s parole supervision and treatment, his medical treatment, and information of third parties that, if revealed, could constitute an unwarranted invasion of privacy. Respondent was convincing during the hearing that if this type of information was readily accessible to the public and freely disclosed through any routine GRAMA request, it would deter inmates from cooperating with Respondent’s employees and its healthcare contractors. Such noncompliance would create hardship for those trying to glean important information from inmates and parolees, information that would assist them in making appropriate and correct determinations in their supervision. We agree with Respondent and sympathize with its concern. Therefore, after examining the disputed records in camera, we find that, on the outset, Respondent’s entire redactions were proper under “protected” and “private” classifications.
With our finding that the restrictions were appropriate under the GRAMA, we now turn to whether Petitioner has convinced us that the public interest outweighs the restrictions. Utah Code § 63G-2-403(11)(b) allows the Committee to weigh the various interests and order the release of the information properly restricted if we find that “the public interest favoring access is greater than or equal to the interest favoring restriction.” Id. As evidenced from the numerous media reports on the incident (two of which we mentioned above), it’s clear that the public holds a strong interest in Mr. Barlow’s tragic accident. Mr. Barlow was on parole at the time he struck and killed the two boys. As a parolee, he would be subject to certain conditions he had to live by in order to remain in the public space. Whether he had satisfied those conditions or not in the time leading up to the accident holds strong public interest because if he had violated his parole conditions, he would likely be returned to prison and the accident would not have happened. Whether any violations were properly addressed and managed also holds strong public interest because if violations occurred, the public deserves to know how those violations were handled and if they were handled appropriately. Additionally, aside from this case, if there was mishandling of Mr. Barlow’s parole supervision – and we make no opinion on that question – the public’s interest is paramount as such mishandling could indicate larger systemic problems with parole supervision.[2]
As representatives for different subsets of society,[3] this Committee weighed the competing interests at length. We respect Respondent’s need to hold certain information private in order to maintain compliance and cooperation from inmates; however, we also respect Society’s interests in knowing that parolees are properly managed upon their release and that the system is working as it should. And this is especially true when two three-year-old children are killed by a parolee who allegedly violated the terms of his parole. Because of the local and national attention this incident received, we believe that the public interest is quite significant. Therefore, in weighing the interests and considerations in favor of and against disclosing the requested records, the Committee finds, in this instance, that the public’s interest in certain information relating to Mr. Barlow outweighs those of Respondent’s. Thus, upon review of the documents, we determine that some redactions must be lifted.
ORDER
THEREFORE, after reviewing the responsive records in camera and weighing the interests for and against their disclosure, Petitioner’s request for access to the redacted records is GRANTED in part and DENIED in part. We hereby order the following:
1. Respondent shall un-redact paragraphs 1 thru 4 on page 3 with the exception to the name of the testing provider referenced in paragraphs 1 and 3, which may remain redacted.
2. Respondent shall un-redact all test dates and their results.
3. All currently redacted information not addressed in this Order may remain redacted.
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).
Entered this 29 day of November 2022
BY THE STATE RECORDS COMMITTEE
KENNETH R. WILLIAMS
Chair, State Records Committee
1 See e.g., Driver who hit and killed two Utah children was high on meth, police say, Vivian Chow, Nexstar Media Wire, May 4, 2022 2:45pm EDT (https://www.wric.com/news/crime/driver-who-hit-and-killed-two-utah-children-was-high-on-meth-police-say/) retrieved November 21, 2022 at 1:59pm (Virginia); ‘High on Meth’ Driver Crashes Into Horse Stable, Killing Two 3-Year-Old Boys, Police Say, Aliison Quinn, Daily Beast (https://www.thedailybeast.com/high-on-meth-driver-crashes-into-horse-stable-killing-two-3-year-old-boys-police-say) retrieved November 21, 2022 at 2:00pm (New York)
2 We stress that we make no opinion or implication on what these records mean and what can be learned about Mr. Barlow’s supervision. We raise these considerations merely to show that the public’s interest in the records is understandably high.
3 Utah Code § 63G-2-501(1)(a)-(f).
",Partially Granted,2022-11-29T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CLAIRE WESTENHAVER-LORETZ and JERRY KINGSTON, Petitioners, v.
UNIFIED POLICE DEPARTMENT, Respondent,
DECISION AND ORDER
Case No. 24-41
This matter is continued to June 20, 2024, to allow the Committee time to review the disputed records in camera.
It is so ordered.
Entered this 24 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Cornwall, M., Buchanan, M., and Peterson, L. voted in favor of this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
",Continuance,2024-05-24T00:00:00Z "BEFORE THE UTAH STATE RECORDS COMMITTEE
EMILY ANDERSON STERN, on behalf of THE SALT LAKE TRIBUNE, Petitioner, vs.
OFFICE OF THE GOVERNOR, STATE OF UTAH, Respondent.
DECISION AND ORDER
Case No. 24-49
ISSUES FOR REVIEW
The parties, through counsel, have moved the State Records Committee for entry of an order requiring the release of certain redacted records.
BACKGROUND
A brief background of this dispute is as follows. In November 2023, The Salt Lake Tribune, through its reporter Emily Anderson Stern (collectively, “The Tribune” or “Petitioner”) submitted a GRAMA request to the Utah Governor’s Office (“Governor’s Office” or “Respondent”) explaining that the “request [was] being submitted following a similar request and subsequent appeal being denied by the Department of Government Operations because ‘the governor’s office claims ownership of these records as product created for the office by DHRM’” and seeking “all draft and/or final versions of investigative reports pertaining to Maj. Gen. Michael Turley, as well as source documents or notes included in such investigative reports/files, and documentation of any remedial or other actions taken following the foregoing,” and “a log of all interviews conducted during the investigation, and any recordings or notes taken during such interviews.” This records request seeks information about Maj. Gen. Michael J. Turley (“Turley”), the former Adjutant General of the Utah National Guard.
On December 6, 2023, the Governor’s Office sent The Tribune a letter denying the request in full and declaring that, “We understand your request to be for records regarding state investigations you requested from DHRM to which access was denied on appeal. All records responsive to [the] request have been classified as private, protected, or non-records.” On December 28, The Tribune appealed that Initial Denial to the Chief Administrative Officer of the Governor’s Office, who responded on January 29, 2024, affirming the denial. On February 28, The Tribune appealed this denial to the SRC by submitting a Notice of GRAMA Appeal. The parties have therefore met the required procedural steps for a State Records Committee Appeal.
On June 12, in lieu of the Governor’s Office submitting a statement of its position on appeal, the parties jointly submitted a stipulated motion asking the State Records Committee to order the release of the records sought by The Tribune with redactions applied by the Governor’s Office to protect witness identities.
STATEMENT OF REASONS FOR DECISION
Under Utah Code Section 63G-2-403(11)(a)(i), the State Records Committee issues signed orders within seven days of the hearing on a party’s appeal, either “granting the relief sought, in whole or in part,” or “upholding the governmental entity’s access denial, in whole or in part.” See Utah Code § 63G-2-403(11)(a)(i)–(ii). Here, the parties have stipulated to a specific form of relief: an order granting The Tribune access to the records it seeks, in a redacted form intended to protect witness identities. Such redactions do not include redactions of the name of Governor Spencer Cox, unless not redacting the Governor’s name would somehow disclose or compromise the identity of a witness. The State Records Committee hereby grants the parties’ request.
ORDER
Therefore, in accordance with the above, the Committee hereby ORDERS that, within seven days of entry of this order, the Governor’s Office must produce to The Tribune:
1. Seven pages of documents dating from late 2022: two copies of an investigatory report (draft and final versions); a cover email; and two pages of notes; and
2. Nineteen pages of documents from mid-2023: a two-page report; one page of interview questions that were asked to a series of witnesses; one page containing an interview schedule; and fifteen pages of interview notes from speaking to witnesses.
These represent the totality of the documents responsive to The Tribune’s GRAMA request. The documents’ redactions should match the redactions made according to the redaction log already created by the Governor’s Office. No additional redactions may be made by the Governor’s Office before the release of such records.
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., Chair Pro Tem, Williams, K., Biehler, E., Buchanan, M., and Peterson, L. unanimously voted in favor of adopting and issuing this Decision and Order. [1]
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).
1. We note that this order was stipulated to and drafted by the parties, and then submitted to us for our approval.
",Granted,2024-07-01T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JANA TIBBITS, Petitioner, v.
MILLCREEK CITY, Respondent,
CONTINUANCE ORDER
Case No. 24-57
Due to an emergency that Petitioner incurred immediately prior to the hearing, this matter is hereby continued to August 15, 2024.
It is so ordered.
Entered this 30 day of July 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., Chair pro tem, Williams, K., Biehler, E., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this order.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
CLAIRE WESTENHAVER-LORETZ and JERRY KINGSTON, Petitioners, v.
UNIFIED POLICE DEPARTMENT, Respondent,
DECISION AND ORDER
Case No. 24-43
By this appeal, Claire Westenhaver-Loretz and Jerry Kingston (“Petitioners”), requests records allegedly held by Unified Police Department (“Respondent”) (“UPD”).
FACTS
On November 21, 2023, Petitioners submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested “all records for case number 71-40634, including initial contact reports, search warrants, arrest warrants, evidence logs, notes, witness statements, and witness interviews.” The records pertain to a crime committed on September 2, 1971, at Natter’s Market where Carolyn Yvonne Kingston, the mother of Petitioner, Jerry Kingston, was tragically murdered. The case went cold and has remained unsolved for over 50 years. Mr. Kingston was just a child at the time and has lived his entire life with little information concerning his mother’s untimely death.
A day after receiving the GRAMA request, Respondent denied it, claiming the requested records were protected under Subsection 63G-2-305(10)(a). Petitioners appealed the denial to Respondent’s chief administrative officer (“CAO”) who affirmed the denial and provided a comprehensive list of actions taken on the case over the last 20 years.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On May 16, 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, and ultimately ordered the hearing be continued. On June 20, 2024, the Committee met again and 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, records that are classified as protected under Section 305 are not public records. Utah Code § 63G-2-201(3)(a).
Under Subsection 305(10)(a), records are protected if they are created or maintained for criminal enforcement purposes and releasing the records “reasonably could be expected to interfere with investigation” undertaken for enforcement purposes. Utah Code § 63G-2-305(10)(a). Normally when a record is properly classified as protected, we are to conduct a weighing analysis, where we weigh the various interests and public policies to determine if disclosure is warranted. See Utah Code § 63G-2-403(11)(b). However, when a record is protected under Subsection 305(10), the law instructs us to forego the traditional weighing test and instead places the burden on the requester to show, “by a preponderance of the evidence,” that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1).
At the hearing, Petitioners voiced frustration with the lack of information they’ve received over the years on the 53-year-old investigation. To counter, Respondent and Detective Ben Pender, head of Respondent’s Cold Case Unit testified to the status of the case, including actions taken on the case over the years and recently, a willingness to meet with and speak to Petitioners about the case, and an annual event where families of cold case victims can meet with the Cold Case Unit to learn of cold case investigations and discuss their personal cases with detectives. Respondent also submitted to this Committee that Detective Pender’s unit has solved ten cold cases in the last five years.
Furthermore, testimony explained how disclosure of the requested records could interfere with the investigation. Respondent and Detective Pender explained that in the course of investigations detectives learn new information that is known only to them. If that information were to be released, there is a risk that the information could become known in the public space. When that happens, potential witnesses become compromised in relaying information that they heard, but don’t have first-had knowledge of. This circumstance can frustrate detectives’ efforts in trying to ascertain the credibility of a witness or otherwise trying to decipher what is truly known by the witness versus what is merely being recounted from them hearing it from someone else. Although the information about this case is being requested by family members, the risk still remains. It’s possible that as family members share details they learned about the case with one another, one particular family member could share some of those details with a third-party, who could then share it with others. Of course, this is not a virtual certainty, but it is a reasonable concern that law enforcement must consider and guard against in attempting to protect the integrity of the investigation.
Upon motion, we reviewed the records in camera to determine if they were properly classified. In doing so, we find that the records are correctly classified. The case files we reviewed contained updated information and recent developments that, upon disclosure, could reasonably interfere with the ongoing investigation.
Upon proper classification under 305(10)(a), the burden is on Petitioners to preponderate evidence supporting disclosure. In our minds, this would entail evidence that shows the interest in disclosure is at least equal to the risk of compromising the investigation—the public policy behind 305(10)(a). Petitioners argue two primary reasons that the records should be released. First, and understandably, is their personal need for information and closure as they have lived a lifetime without answers. Second, they essentially argue that ‘two heads are better than one’—that if information were divulged, private investigators or others could be hired or solicited to work on the case, which could lead to faster results since more resources are being deployed.
To these arguments, we find guidance in our prior decisions. In Peterson v. Salt Lake City Police Dept., Decision and Case no. 23-32, Utah State Records Committee (entered Aug. 1, 2023), we looked at a similar case where the primary argument for disclosure was that the family of a homicide victim should be updated on the status of the investigation. We found that the interest in updating a family was a policy argument rather than evidence (as required under 406(1)). We also found that even if we could consider the importance of updating the victim’s family, the argument was not compelling enough to disclose the records because “[a]s Captain Sweeny testified and the Committee discussed, there may be viable law enforcement strategies at hand in deliberately not updating the family.” Id. Thus, we find that the same reasoning applies to the case before us here. Updating a victim’s family on the status of the investigation does not generally satisfy the burden required under Subsection 406(1). For us to order the release of investigation records when the investigation is still ongoing and has made recent progress, we must see actual evidence showing that the disclosure justifies the inherent risk of interfering with the investigation. As it relates to updating the family, we don’t see that justification here.
To the second argument—that more eyes on the case could make quicker progress—we find that it is not our position to decide what is best for the investigation overall. As Detective Pender testifies that recent progress has been made in the case, we ultimately must defer to him on whether additional resources would be helpful or not.
In finding that the evidence does not preponderate disclosure of the requested records, we make a note that as Detective Pender testified at the hearing, it is not customary for him to contact families for updates because doing so could reopen trauma for family members who have mentally and emotionally settled on not thinking about the crime that affected them. However, he further testified (and offered) on the record to meet with Petitioners to discuss the Kingston case with them. Certainly, Petitioners will need to understand that because the case is ongoing there may be justifiable reasons that some of their questions might not be answered to their satisfaction; however, we encourage them to take Detective Pender’s offer and contact him anyway. Perhaps, they will learn information that will ease their concern and grant some degree of closure they deserve.
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., Chair Pro Tem, Biehler, E., and Buchanan, M. voted in favor of and joined in this Decision and Order.
Committee member Peterson, L. voted in opposition.
Committee member Williams, K. was not present at the original hearing on May 16, 2024, and accordingly voted to abstain.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
GREGORY FERBRACHE, Petitioner, vs
UTAH STATE TAX COMMISSION, Respondent,
DECISION AND ORDER
Case No. 23-21
By this appeal Gregory Ferbrache (“Petitioner”), requests records allegedly held by Utah State Tax Commission (“Respondent”).
FACTS
As the attorney for the subjects of the requested records, Petitioner filed a records request with the Respondent on June 2, 2021, pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the following:
Any and all records relating to the investigation of Bonneville Equipment, and/or Steve Dabb, Scott Pruyt and/or Monika Griff to include but limited to audio recordings, video recordings, photographs, reports, documents, emails, text messages, notes, subpoenas, affidavits, memorandums, charts and/or power points.
Petitioner maintains that these records were created or are otherwise held by the Respondent because of criminal and civil investigations involving his clients. Notably, the Utah Attorney General’s Office declined to pursue any criminal charges against Petitioner’s clients and, as a result, Petitioner now seeks the relevant records.
However, the Respondent denied the request citing various Utah statutes and regulations. As they relate to the GRAMA’s scheme, the Respondent denied the request on the basis that the records were classified as protected under Utah Code §§ 63G-2-305(10); -305(15); -305(18); -305(22); and -305(51). These provisions predominantly pertain to protecting records that are related to investigations, audits and possible litigation, including protecting the information of third-party witnesses and informants.
On July 15, 2021, Petitioner appealed the decision to the Respondent’s chief administrative officer (“CAO”). Petitioner argued the applicability of each statute the Respondent relied on and averred that since criminal charges were not filed against the subjects of the records, then the records could no longer be protected. However, the CAO upheld the Respondent’s denial arguing that notwithstanding a criminal investigation being complete, if the records are connected to a civil audit, then they are still protected under the same statutory provisions.
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On May 18, 2023, 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
We are tasked with determining whether the subject records are properly classified as protected and, if so, whether they may be disclosed.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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). A government record is presumed to be public and able to be disclosed unless expressly restricted by statute. Utah Code § 63G-2-201(2). Thus, if a record is classified as protected under Section 63G-2-305, then its disclosure may be restricted. Utah Code § 63G-2-201(3)-(5). In pertinent part to this appeal, the following provisions of Section 305 holds that the following records are protected if properly classified by the governmental entity:
(10) records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for enforcement . . .
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings;
(c) would create a danger of depriving a person of a right to a fair trial or impartial hearing;
(d) reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source; or
(e) reasonably could be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts;
(15) records and audit workpapers that identify audit, collection, and operational procedures and methods used by the State Tax Commission, if disclosure would interfere with audits or collections;
(18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding;
(22) drafts, unless otherwise classified as public;
and
(51) . . . an individual’s home address, home telephone number, or personal mobile phone number, if:
(a) the individual is required to provide the information in order to comply with a law, ordinance, rule, or order of a governmental entity; and
(b) the subject of the record has a reasonable expectation that this information will be kept confidential . . .”
Utah Code §§ 63G-2-305(10), -305(15), -305(18), -305(22), -305(51).
Importantly, if a record is properly classified as protected under Subsections (10) and (18), then the petitioner shoulders the burden of showing by a preponderance of the evidence “that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1). If, however, records are properly classified under subsections other than (10) and (18), then we may weigh the “various interests and public policies pertinent to the classification and disclosure or non-disclosure” of the records and order their disclosure if “the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b).
Upon hearing the parties’ arguments, the Committee moved to view the records in camera to ascertain their nature and determine whether the classification was proper. See Utah Code § 63G-2-403(9)(a)(i)-(ii). The respondent had previously requested to provide a sample, given the number of records to be reviewed, which was approved by the Chair pro tem. The sample was selected by the Respondent. Upon examining the records, we find that they are properly classified under the various Subsections the Respondent has set forth.
As they pertain to subsection 305(10) and (18), Petitioner provided no evidence aside from argument to convince us that public interest favors disclosure. Moreover, as they pertain to the other Subsections the Respondent invokes, we find that the Respondent holds the records in connection with an ongoing civil audit. Despite Petitioner’s clients being the subjects of the record, we see little support that the public interest outweighs the interests favoring restriction. Accordingly, at this time we find that the interests weigh in favor of the Respondent restricting access.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED.
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).
Entered this 26 day of May 2023
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LYNN DAVID, Petitioner, v.
WASATCH COUNTY, UTAH, Respondent.
DECISION AND ORDER
Case No. 22-55
By this appeal, Lynn David (“Petitioner”), requests records allegedly held by Wasatch County, Utah (“Respondent”).
FACTS
On July 25, 2022, Petitioner submitted a request for records to Respondent pursuant to the Governmental Records Access and Management Act (“GRAMA”). The request was for records pertaining to law enforcement’s interaction with him and others on July 22, 2022, when a resident in Brighton Estates (Wasatch County, Utah) complained to law enforcement that Petitioner had been photographing and following his employees. The resident did not wish to file a criminal complaint but asked only that an officer speak with Petitioner about the situation.
Upon being questioned by a responding officer, Petitioner explained he was documenting the workers’ activities because he believed they were mining rocks illegally. The responding officer told Petitioner to report his concern to Wasatch County Building and Licensing Department. After that, Petitioner agreed to keep his distance from the resident’s employees.
Petitioner then filed a GRAMA request with Respondent for the complete records concerning this interaction with law enforcement, including the responding officer’s notes, interview transcripts, the initial complaint, any available body camera footage, and any and all internal communications Wasatch County governmental officials might have had regarding the incident. Respondent transferred the request to Wasatch County Sheriff’s Office which responded by delivering to Petitioner its “Law Incident Table.” The Law Incident Table consisted of the resident’s intake call to law enforcement, the responding officer’s written report, and information on four individuals, including Petitioner and the complaining resident, who the responding officer had made contact with at the site.
Petitioner appealed this response to Respondent’s chief administrative officer, claiming that there were still outstanding records he requested, such as the officer’s interviews with the other subjects at the site, any communications on the matter within Respondent’s office, and body camera footage. This appeal was met with Respondent delivering an additional police report and body camera footage of Petitioner’s interaction with the responding officer that were inadvertently omitted from the initial delivery. Respondent claimed that beyond those two additional items it holds no other responsive records.
Petitioner appealed to the State Records Committee (“Committee”) claiming he has not received two outstanding records: The responding officer’s body cam footage and interview notes for the two individuals the officer spoke with immediately after he interviewed Petitioner. Petitioner concedes that all responsive records except for these two remaining items have been delivered. Respondent claims that the remaining items he seeks are not in its possession, if they exist at all.
The Committee held a hearing on November 17, 2022. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After carefully considering all evidence presented to the Committee, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
The GRAMA states 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, in response to a request for records, a governmental entity is not required to create a record where one does not exist. Utah Code § 63G-2-201(8)(a). In addition, if a governmental entity determines that responsive records don’t exist, then the requester bears the burden on appeal to provide sufficient evidence that they do. See Utah Administrative Code R35-2-2(2).
Here, Petitioner has produced no evidence disputing Respondent’s claim that it doesn’t have the records in its possession. Petitioner makes a compelling point that with the police officer’s body cam recording his own interaction with the officer, the camera should have also recorded the officer’s interaction with the other two individuals that occurred immediately after his own. However, Respondent testified that, notwithstanding Petitioner’s logic, the body cam footage of the other individuals cannot be found.
Respondent explained at the hearing that its officers’ body cam footage is routinely uploaded into Respondent’s database. Upon upload, all body cam footage is labeled by date and time and then organized into respective folders. Respondent testified that in effort to find the footage in question, it searched its database by both date and officer name, together and individually, and then reviewed the uploaded footage for each search. Respondent further testified that this search effort produced no responsive results, nor did its query for any interview notes. We find that Respondent’s search efforts were reasonable, and Respondent has no further duty concerning the requested records.
As mysterious as it may be that an officer’s body cam captures footage of one individual’s interaction with the officer but not others at the same incident, it is not our task to explore realms of the unknown. We must rigidly apply the law to the facts in an impartial way regardless of the outcome and without consideration to why records may not exist. If there are no responsive records in Respondent’s possession, it has no obligation to create them. Utah Code § 63G-2-201(8)(a). And because Petitioner has provided no evidence showing that Respondent has the remaining records in its possession, we must determine that, given Respondent’s search efforts for these remaining items were reasonable, Respondent owes no further duty to Petitioner on this matter.
ORDER
THEREFORE, for the foregoing reasons, we hereby order Petitioner’s appeal is DENIED.
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).
Entered this 29 day of November 2022
BY THE STATE RECORDS COMMITTEE
________________________________________
NANCY R. DEAN
Acting Chair, State Records Committee
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
UTAH COUNTY, Respondent,
DECISION AND ORDER
Case No. 24-74
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Utah County (“Respondent”).
BACKGROUND
To better understand the parties’ arguments and our analysis, it’s helpful to outline the events that led to this appeal. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA, and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), that essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor’s signature if it was approved by two-thirds of the members of each house of the legislature, which it was. At roughly 8:00 pm that evening, the Governor signed SB 240 into law with immediate effect.[1] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 1:54 am, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2021, through March 1, 2025.” The request then named six individuals.
In a response dated March 6, 2024, Respondent denied access to the records pursuant to § 63G-2-103(25)(b)(ix). In the denial email, Petitioner was informed that Katrina Cole was the Deputy County Attorney overseeing this request. There was no mention of who the chief administrative officer (“CAO”) was so that Mr. Herbets could appeal to them. Petitioner sent his appeal of the initial denial to Katrina Cole who responded that she was the attorney assigned to GRAMA requests, but not GRAMA appeals. She said, “if you have not received a response to your appeal within the statutory time, I would assume that it has been denied per Utah County Code 2.03.080.”
Petitioner appealed to the State Records Committee (“Committee”). On September 19, 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Time Computation Under Utah Code
The Respondent's first argument is that the 2024 version of GRAMA is controlling because, under Section 68-3-7, GRAMA became operative the day after Petitioner submitted his request.
Section 68-3-7 provides that when an act is performed, time is computed by excluding the first day. Utah Code § 68-3-7(1)(a). Under GRAMA, when a record request is received, the governmental entity customarily has 10 business days to respond to the request. Utah Code § 63G-2-204(4)(b). Thus, according to the Respondent, because of Section 68-3-7, the 10-day clock to respond to a GRAMA request begins one day after the request is submitted. Consequently, the version of GRAMA that is in effect on day one of the 10-day response period is the one that governs the request. Regarding the request at issue, the argument is that although Petitioner submitted his request on the same day but prior to the Governor signing SB 240, the response time began running on the day after the request was submitted and when SB 240 went into law.
The time computation statute governs when a statutorily prescribed act is to be performed. This is made clear by the Subsection (1): “A person shall compute the period of time provided by law to perform an act . . .” Utah Code § 68-3-7(1) (emphasis added). Then, GRAMA states that the entity has 10 business days “after receiving a written request” to issue a formal response to the requester. Utah Code § 63G-2-204(4)(b). Read together, we agree that these statutes mean that the day the request is submitted is excluded from any statutory time periods and the clock begins on the following day. However, day 1 of the response period is not the point in time where we look to see which version of GRAMA is operative.
In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribute v. State Records Committee, 2019 UT 68, ¶1 n.1 where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in determining which version of GRAMA should be analyzed.
The Respondent goes on to argue that Section 63G-2-307 supports the idea that the 2024 version of GRAMA should apply because SB 240 was in effect when it classified the record. We disagree.
Section 307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added). Additionally, “[a] governmental entity may redesignate . . . or reclassify a record . . . at any time.” Utah Code § 63G-2-307(3). The Respondent argues that because Subsection 307(2) allows it to classify the record “at any time,” GRAMA becomes operational when that classification is made. Thus, because it classified the calendars after SB 240 went into effect, the 2024 version of GRAMA controls, and the calendars aren’t records.
We note that Section 307 deals with the classification of “records”—a defined term under GRAMA. Whether the requested calendars are “records” subject to GRAMA is the core issue of this appeal. However, even assuming that Section 307 could apply to the requested calendars, the problem with this argument is that Subsection 307(2) actually supports Petitioner’s position.
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement for the governmental entity is to classify the record when it is requested. That would require classification under the 2023 version of GRAMA when Petitioner made his request. Subsection 307(3) then permits a reclassification at any time after the record has been classified. Consequently, even if Section 307 is applied here, it is unhelpful to the Respondent since the record cannot be reclassified without first being initially classified when the request is made.
Finally, the Respondent argues that the 2024 version of GRAMA controls because it was under this version when Petitioner’s “cause of action” arose. The Respondent argues that Petitioner has no “cause of action” until his record request is denied and that under Gressman v. State of Utah¸ 2013 UT 63, it’s the cause of action that triggers GRAMA into effect, which, in this case, was after SB 240 was signed.
In Gressman, the Court analyzed the difference in retroactivity between procedural and substantive statutory amendments. The Court determined that the statutory amendments at issue were substantive and, therefore, could not be retroactive. This meant that the version of the law in place when the plaintiff’s claim arose was the controlling law. We view this as an oversimplification of Gressman.
It is true that the statute in Gressman was examined in the context of “when Mr. Gressman’s claim arose.” Gressman, ¶20. However, basing statutory effect solely on a “cause of action” is an imprecise formulation:
Instead, our cases stand for the simpler proposition that we apply the law as it exists at the time of the event regulated by the law in question. Thus, if a law regulates a breach of contract or tort, we apply the law as it exists when the alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action . . . Similarly,, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed.
State v. Clark, 2011 UT 23, ¶13 (emphasis added). From this instruction, it’s not a cause of action per se, but the event is being regulated. Since GRAMA is a unique statute that “does not contemplate adversarial combat over record requests,” we don’t believe that a cause of action must arise before the requester can gain certainty about which law will govern their request. Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25.
As discussed in greater detail below, SB 240 amended a statutory definition. The amendment substantively affected which records could be requested under GRAMA. As a result, the event that SB 240 regulates is not that which gives rise to a cause of action (the denial of the request) but the request itself. Therefore, we find the “cause of action” argument is unpersuasive.
Ultimately, we find that the case law cited above and the plain language of Section 307 shows that the requester has the right to rely on the version of GRAMA in effect when the record request was submitted, which, in this case, was the 2023 version of GRAMA.
2. The Retroactive Effect of SB 240
The Respondent argues that even if GRAMA was triggered into effect when Petitioner’s request was made, the request was still correctly denied because SB 240 applied to his request retroactively.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[2] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Waddoups, supra.
The Respondent brings Wasatch County v. Okelberry 2015 UT App 192 to our attention. That decision was rendered two years after Gressman and the Court held that a seemingly purely clarifying amendment retroactively applied. The Respondent argues that, as a more recent case than Gressman, Okelberry supports—and even controls—the proposition that a simple clarifying amendment has a retroactive effect. We are in no position to guess why the Okelberry court ignored the repudiation given in Gressman and reinforced in Waddoups, but regardless, we find that Okelberry is distinguishable in its facts.
In that case, the Supreme Court interpreted the “continuous use” requirement found in Section 72-5-104(1) (2009). The legislature disagreed with the Court’s definition and amended the statute in direct response to the Court’s decision. The amendment clarified the legislative intent behind “continuous use” by essentially defining the term and establishing elements that must be satisfied to trigger the statute’s application. Appeals then ensued over whether the legislative amendment applied retroactively.
Notably different from our case is that in Okelberry, is that the legislature’s amendment clarified the meaning of the term “continuously used.” Lawmakers established a definition to guide judicial interpretation. In our case, the legislature didn’t clarify the meaning of “daily calendars.” Instead, it made “daily calendars” its own line item in the list of items that don’t constitute a record. Thus, even though the legislature attempted to “clarify” its original intent behind daily calendars and GRAMA, it created an all-new definitional term after Judge Corum determined the statute's plain language was clear. The contrast between Okelberry and our case is clear: the former created a definition; the latter eliminated a right. The cases are not analogous, and Gressman still controls our decisions.
3. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that they constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
4. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
5. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., chair pro tem, Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
2. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
WEST VALLEY CITY, Respondent,
DECISION AND ORDER
Case No. 24-71
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by West Valley City (“Respondent”).
BACKGROUND
To better understand the parties’ arguments and our analysis, it’s helpful to outline the events that led to this appeal. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA, and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), that essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor’s signature if it was approved by two-thirds of the members of each house of the legislature, which it was. At roughly 8:00 pm that evening, the Governor signed SB 240 into law with immediate effect.[1] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 5:09 pm, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2021, through March 1, 2025.” The request then named three individuals.
In a response dated March 7, 2024, Respondent stated that they have no records responsive to the request. Petitioner filed an appeal to Respondent’s chief administrative officer (“CAO”) and noted that if Respondent was acting on the belief that daily calendars were not records, it was mistaken because of the recent decision made by Judge Corum.
The CAO responded and denied the appeal, both in terms of there not being any responsive records, and that calendars were not considered records.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Time Computation Under Utah Code
The Respondent's first argument is that the 2024 version of GRAMA is controlling because, under Section 68-3-7, GRAMA became operative the day after Petitioner submitted his request.
Section 68-3-7 provides that when an act is performed, time is computed by excluding the first day. Utah Code § 68-3-7(1)(a). Under GRAMA, when a record request is received, the governmental entity customarily has 10 business days to respond to the request. Utah Code § 63G-2-204(4)(b). Thus, according to the Respondent, because of Section 68-3-7, the 10-day clock to respond to a GRAMA request begins one day after the request is submitted. Consequently, the version of GRAMA that is in effect on day one of the 10-day response period is the one that governs the request. Regarding the request at issue, the argument is that although Petitioner submitted his request on the same day but prior to the Governor signing SB 240, the response time began running on the day after the request was submitted and when SB 240 went into law.
The time computation statute governs when a statutorily prescribed act is to be performed. This is made clear by the Subsection (1): “A person shall compute the period of time provided by law to perform an act . . .” Utah Code § 68-3-7(1) (emphasis added). Then, GRAMA states that the entity has 10 business days “after receiving a written request” to issue a formal response to the requester. Utah Code § 63G-2-204(4)(b). Read together, we agree that these statutes mean that the day the request is submitted is excluded from any statutory time periods and the clock begins on the following day. However, day 1 of the response period is not the point in time where we look to see which version of GRAMA is operative.
In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribute v. State Records Committee, 2019 UT 68, ¶1 n.1 where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in determining which version of GRAMA should be analyzed.
The Respondent goes on to argue that Section 63G-2-307 supports the idea that the 2024 version of GRAMA should apply because SB 240 was in effect when it classified the record. We disagree.
Section 307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added). Additionally, “[a] governmental entity may redesignate . . . or reclassify a record . . . at any time.” Utah Code § 63G-2-307(3). The Respondent argues that because Subsection 307(2) allows it to classify the record “at any time,” GRAMA becomes operational when that classification is made. Thus, because it classified the calendars after SB 240 went into effect, the 2024 version of GRAMA controls, and the calendars aren’t records.
We note that Section 307 deals with the classification of “records”—a defined term under GRAMA. Whether the requested calendars are “records” subject to GRAMA is the core issue of this appeal. However, even assuming that Section 307 could apply to the requested calendars, the problem with this argument is that Subsection 307(2) actually supports Petitioner’s position.
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement for the governmental entity is to classify the record when it is requested. That would require classification under the 2023 version of GRAMA when Petitioner made his request. Subsection 307(3) then permits a reclassification at any time after the record has been classified. Consequently, even if Section 307 is applied here, it is unhelpful to the Respondent since the record cannot be reclassified without first being initially classified when the request is made.
Finally, the Respondent argues that the 2024 version of GRAMA controls because it was under this version when Petitioner’s “cause of action” arose. The Respondent argues that Petitioner has no “cause of action” until his record request is denied and that under Gressman v. State of Utah¸ 2013 UT 63, it’s the cause of action that triggers GRAMA into effect, which, in this case, was after SB 240 was signed.
In Gressman, the Court analyzed the difference in retroactivity between procedural and substantive statutory amendments. The Court determined that the statutory amendments at issue were substantive and, therefore, could not be retroactive. This meant that the version of the law in place when the plaintiff’s claim arose was the controlling law. We view this as an oversimplification of Gressman.
It is true that the statute in Gressman was examined in the context of “when Mr. Gressman’s claim arose.” Gressman, ¶20. However, basing statutory effect solely on a “cause of action” is an imprecise formulation:
Instead, our cases stand for the simpler proposition that we apply the law as it exists at the time of the event regulated by the law in question. Thus, if a law regulates a breach of contract or tort, we apply the law as it exists when the alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action . . . Similarly,, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed.
State v. Clark, 2011 UT 23, ¶13 (emphasis added). From this instruction, it’s not a cause of action per se, but the event is being regulated. Since GRAMA is a unique statute that “does not contemplate adversarial combat over record requests,” we don’t believe that a cause of action must arise before the requester can gain certainty about which law will govern their request. Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25.
As discussed in greater detail below, SB 240 amended a statutory definition. The amendment substantively affected which records could be requested under GRAMA. As a result, the event that SB 240 regulates is not that which gives rise to a cause of action (the denial of the request) but the request itself. Therefore, we find the “cause of action” argument is unpersuasive.
Ultimately, we find that the case law cited above and the plain language of Section 307 shows that the requester has the right to rely on the version of GRAMA in effect when the record request was submitted, which, in this case, was the 2023 version of GRAMA.
2. The Retroactive Effect of SB 240
The Respondent argues that even if GRAMA was triggered into effect when Petitioner’s request was made, the request was still correctly denied because SB 240 applied to his request retroactively.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[2] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Waddoups, supra.
The Respondent brings Wasatch County v. Okelberry 2015 UT App 192 to our attention. That decision was rendered two years after Gressman and the Court held that a seemingly purely clarifying amendment retroactively applied. The Respondent argues that, as a more recent case than Gressman, Okelberry supports—and even controls—the proposition that a simple clarifying amendment has a retroactive effect. We are in no position to guess why the Okelberry court ignored the repudiation given in Gressman and reinforced in Waddoups, but regardless, we find that Okelberry is distinguishable in its facts.
In that case, the Supreme Court interpreted the “continuous use” requirement found in Section 72-5-104(1) (2009). The legislature disagreed with the Court’s definition and amended the statute in direct response to the Court’s decision. The amendment clarified the legislative intent behind “continuous use” by essentially defining the term and establishing elements that must be satisfied to trigger the statute’s application. Appeals then ensued over whether the legislative amendment applied retroactively.
Notably different from our case is that in Okelberry, is that the legislature’s amendment clarified the meaning of the term “continuously used.” Lawmakers established a definition to guide judicial interpretation. In our case, the legislature didn’t clarify the meaning of “daily calendars.” Instead, it made “daily calendars” its own line item in the list of items that don’t constitute a record. Thus, even though the legislature attempted to “clarify” its original intent behind daily calendars and GRAMA, it created an all-new definitional term after Judge Corum determined the statute's plain language was clear. The contrast between Okelberry and our case is clear: the former created a definition; the latter eliminated a right. The cases are not analogous, and Gressman still controls our decisions.
3. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that they constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
4. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
5. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., chair pro tem, Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
2. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
",Partially Granted,2024-10-04T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MIKI MULLOR, Petitioner, v.
HIDEOUT TOWN, Respondent,
DECISION AND ORDER
Case No. 24-67
By this appeal, Miki Mullor (“Petitioner”), requests a fee waiver and records allegedly held by Hideout Town (“Respondent”).
FACTS
This case comes on the heels of our decision in Mullor v. Town of Hideout, Decision and Case no. 24-15, Utah State Records Committee (entered Feb. 26, 2024) , In that case, we ruled that the Town of Hideout’s decisions to assess a fee for record production and deny the request to waive the fee were both reasonable, In ruling that the Town Hideout could charge a fee, we encouraged Petitioner to submit a new narrower request to help bring the cost down. Within hours after we publicly voted and decided on that matter, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all emails sent by [the Hideout Administrator] since July 1, 2023, until September 1, 2023.” The request specifically requested that the Respondent’s “clerk or IT” conduct the search and produce the records rather than its administrator. Petitioner also asked for a fee waiver, claiming that “[r]eleasing the record primarily benefits the public.” And finally, the request expressly excluded “all emails that include information that is private, confidential, or protected as defined by law.”
On February 28, 2024, the Respondent denied Petitioner’s request on the grounds that it was a duplicate request of the one he submitted on August 23, 2023, that we examined in Mullor v. Town of Hideout (supra). Respondent also denied Petitioner’s fee waiver request “for the same reasons as [the] August 23, 2023, request which was upheld by the State Records Committee.” The Respondent also explained that the new request would still “require substantial staff time to search, compile, format, manipulate, package, summarize, or tailor the records either into an organization or media to meet the request,” Which would warrant a fee under Utah Code. § 63G-2-203(2). Respondent requested that Petitioner narrow his request yet again to reduce the cost. The Respondent estimated the fees for this new request as $3,255.
At the conclusion of the denial letter, the Respondent included the following appeal notice:
You may appeal the records denial and fee waiver denial pursuant to Utah Code Ann. § 63G-2-203(6), by filing a notice of appeal within 30 days of the date of this letter to Mayor Phil Rubin at mayor@hideoututah.gov.
Because Mayor Rubin is not the official chief administrative officer as defined by GRAMA, Petitioner emailed the Respondent’s administrator the following sarcastic quip:
Since we know your attorneys [sic] position, can we assume his response would be the same and assume the appeal is denied?
The Respondent didn’t respond to Petitioner’s email because it didn’t interpret it as a formal appeal. Nor did Petitioner send any email or notice to the Mayor.
After no response was received from the Respondent, Petitioner appealed to the State Records Committee (“Committee”). On September 19, 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
Petitioner asks us to review the Respondent’s decision to deny the fee waiver request. Before we get to that question, we must determine if the appeal has been properly brought before us.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.” Utah Code § 63G-2-203(1)(a). In addition, if the entity must compile a record in a form other than how it normally maintains the record, the entity may charge a fee for the cost of staff time to search and retrieve the records, as well as the cost to compile the records into an organization that meets the person’s request. Utah Code § 63G-2-203(2)(a)(i)-(ii). When a fee is assessed and a waiver is denied, the ultimate question is whether the denial was reasonable. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52. However, if a requester is aggrieved by an assessed fee, they must appeal the governmental entity’s decision to its chief administrative officer within 30 days after the governmental entity denies the fee waiver request.” Utah Code § 63G-2-401(1)(a)(ii). As the chief administrative officer is the individual who handles such appeals for the entity, GRAMA allows that a chief administrative officer’s duties may be delegated. Utah Code § 63G-2-401(9).
Here, Petitioner received a denial letter from the Respondent that instructed him to appeal to the Mayor. Petitioner’s belief was that the Mayor was not the designated CAO and, as a result, he didn’t file anything with the Mayor. Petitioner testified that because GRAMA states that all appeals of an initial denial must be directed to the governmental entity’s CAO. he wanted to be in strict compliance with GRAMA and direct his appeal to the actual CAO. Instead, he sarcastically asked the Respondent’s administrator if it was safe to assume his appeal would be denied. To Petitioner, this reply was intended to open the discussion about an appeal, which he planned to file, but when he was met with silence, he appealed to this Committee.
It is true that GRAMA requires that initial GRAMA denials be appealed to the governmental entity’s CAO. See Utah Code §§ 63G-2-205(2)(c); and 63G-2-401(1)(a). However, a CAO may delegate those duties to someone else. Utah Code § 63G-2-401(9). On the one hand, we can understand Petitioner’s unawareness of Subsection 401(9). On the other hand, we recognize the Respondent’s right to delegate CAO authority to the Mayor to handle the underlying appeal. But apart from these considerations, the bottom line is that although his reasoning for not appealing to the Mayor might be understandable, that step was missed. Consequently, his appeal is not properly before us.
Given the testimony and considerations behind why Petitioner failed to appeal to the Mayor, we find that remanding this matter to the Mayor is the appropriate solution. After all, the CAO’s duty (delegated to the Mayor) would be to determine the reasonableness of the decision to deny the fee waiver. Jordan River Restoration Network, supra. As the CAO, the Mayor should examine the assessed fee to ensure it comports with the requirements in Section 203 and how they are outlined in Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist., 1999 UT App 136. In reviewing the legal requirements and the relevant circumstances surrounding the request, the Mayor may decide whether the decision to deny the fee waiver request was reasonable. Jordan River Restoration Network, supra. During this process, we encourage the Respondent and Petitioner to work together amicably to clarify search parameters and resolve the matter so that both parties’ interests are respected.
ORDER
THEREFORE, in accordance with our Decision, this case is remanded to Mayor Phil Rubin to complete a CAO review of the decision to deny the fee waiver request as required under Section 63G-2-401, and in accordance with the instructions set forth in this Decision.
It is so ordered.
Entered this 30 day of September 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair Pro tem, Utah State Records Committee
Committee members Buchanan, M., Biehler, E., Dubovik, N., and Peterson, L. voted in favor of and joined in this Decision and Order.
Committee member Cornwall, M., chair pro tem, voted in opposition.
enclosed: 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).
",,2024-09-30T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UNIVERSITY OF UTAH, Petitioner, v.
IAN COOPERSTEIN, Respondent,
DECISION AND ORDER
Case No. 24-61
By this petition, the University of Utah (the “University”) seeks a formal order declaring Ian Cooperstein (“Cooperstein”) a vexatious requester for a 12-month period.
ISSUES FOR REVIEW
We must determine whether Cooperstein is a vexatious requester under Section 63G-2-209, and, if so, the proper amount of time which the University may be relieved from responding to his record requests.
STATEMENT OF REASONS FOR DECISION
Utah Code § 63G-2-209 grants the Utah State Records Committee (“Committee”) the authority to declare an individual a “vexatious requester” and grant relief to a governmental entity from having to respond to the individual’s record requests for a period of time that may not exceed one year. Utah Code § 63G-2-209(8)(b). In determining whether an individual is a vexatious requester, this Committee must consider the following factors prescribed by statute:
(a) the interests described in Section 63G-2-102;
(b) as applicable:
(i) the number of requests the individual has submitted to the governmental entity, including the number of pending requests;
(ii) the scope, nature, content, language, and subject matter of record requests the individual has submitted to the governmental entity;
(iii) the name, content, language, and subject matter of any communications to the governmental entity related to a record request;
(iv) Any pattern of conduct that the committee determines to constitute:
(A) an abuse of the right of access to information under GRAMA; or
(B) substantial interference with the governmental entity’s operations; and
(c) any other factor the Committee considers relevant.
Utah Code § 63G-2-209(9)(a)-(c). When we examine these factors, we keep in mind that the governmental entity need not prove each individual factor. Rather, the evidentiary burden on the government is to prove through a totality of the circumstances that the individual is a vexatious requester. Utah Administrative Rule R35-1-3(2). This means that we focus on the factors listed in Subsection 209(9) in the aggregate. Thus, we look at each of the statutory factors individually but consider their total weight in light of the relevant facts and circumstances giving rise to the petition before us.
I. The Interests Described in 63G-2-102
The interests outlined in Section 102 are an individual’s right to access information concerning the public business, and the public policy interest in allowing government to restrict access to certain records. Utah Code § 63G-2-102(1) & (3). In essence, the legislature intended to balance the public’s right of “easy and reasonable access” to public records with allowing restrictions on records where the policies support restricting access. Utah Code § 63G-2-102(3)(a)-(b).
The University has been responding to Cooperstein’s for several years, long before GRAMA’s Section 209 was enacted. The requests stem from Cooperstein’s desire for records that are related in one way or another to him and his employment termination from the University. GRAMA seeks to protect governmental employee records by classifying them as private under Section 302. However, because Cooperstein is the subject of the records, he is entitled to them under Subsection 63G-2-202(1)(a)(i), which allows the subject of the record the right to obtain records classified as private. If the records were properly classified as controlled under Section 304 or protected under Section 305, Cooperstein would not be entitled to them since being the subject of protected and controlled records has no bearing on whether controlled and protected records may be released to the requester. See generally Utah Code § 63G-2-202(2) & (4). Consequently, because Cooperstein is the subject of the records he’s sought, his right to reasonable and easy access to the records prevails over the public policies supporting the University’s right to restrict access.
II. Number of the Requests
Cooperstein has submitted over 200 GRAMA requests to the University. However, the vast majority of these were submitted between 2 – 4 years ago, and he has not submitted a new request in almost a year. The University claims that embedded within those 200 requests he has submitted “many additional and duplicative requests.” University’s Petition at 3. The University also argues that GRAMA “requires the Committee to consider the number of pending requests” in our analysis, which, according to the University still hovers above 130.
But the University’s position is fixed on requests and events that occurred prior to the enactment of Section 209. It is well settled that newly created statutes do not apply retroactively; and therefore, the “parties’ substantive rights and liabilities are determined by the law in place at the time” when the procedural action arises. Waddoups v. Noorda, 2013 UT 64, ¶6. The exception to this rule is when “the [statutory] provision is expressly declared to be retroactive.” Utah Code § 68-3-3. This, of course, makes sense since individuals must be able to rely on the laws that are in effect at the time of their actions without worry that a future law could reach back and penalize them for what was legal at the time. Since nothing in Section 209 indicates that it may be applied to individuals who might have abused GRAMA years ago, we find that this factor cannot be weighed against Cooperstein today.
To be clear, we think that an individual who submits hundreds of requests over a short period of time may warrant consideration under Section 209, but not in this case. Had Cooperstein filed his numerous requests since Section 209 was enacted, we might come to a different conclusion and be more sympathetic to the University’s argument on this point. However, the law on statutory retroactivity is clear and well-settled. Therefore, the requests Cooperstein made prior to the statute’s enactment cannot be weighed against him, and we find the University’s argument unpersuasive on this point.
III. Scope, Nature, Content, Language, and Subject Matter of the Requests
The next factor we are to consider is the scope and nature of the requests. The University’s argument primarily centers on how Cooperstein has created a “false narrative about the termination of his employment.” Id. at 4. As a result, the University argues, he “incorrectly asserts that records exist based solely on his erroneous beliefs,” and the “flawed information [Cooperstein] regularly provides in his requests often requires substantial additional effort by the University.” Id. Ultimately, the University argues that because of this, there is a large amount of time spent trying to decipher what it is Cooperstein actually wants. Id.
Nowhere in GRAMA does it state that a person’s perception of events must be correct in order to obtain access to records. In fact, GRAMA is also silent on the importance or relevance of a requester’s motivation behind the record request. Thus, even if Cooperstein has created a false narrative surrounding his employment termination, and even if his perceptions of the events were entirely incorrect, we fail to see how that would weigh against him in his right to seek records, especially records in which he is the subject. True as it may be that his requests are difficult to understand, it doesn’t follow that such requests are a sure sign of a vexatious requester.
As for the language of the requests, we do see some degree of concern. At times, the requests are unnecessarily lengthy with some containing strong language. However, we note that the problematic language may in part be due to Cooperstein’s frustration with how the University has handled his record requests over the years. What may have started four years ago as an initial attempt to explain his motivation for and attempt to obtain certain records has, over time, morphed into a 4-year backlog of unfilled record requests which has angered Cooperstein.
In considering these facts, we don’t consider Cooperstein’s motivations or “false narratives” critical to a Section 209 analysis. Indeed, we find the language of some of the requests to be of some concern but not enough to overshadow the fact that, though lengthy and reflecting an alleged “false narrative,” the nature, scope, and subject matter of his requests do not rise to the level of abusing the right to public records.
IV. Nature, Content, Language, and Subject Matter of Communications
The University has presented sufficient evidence to show that Cooperstein’s communications with its staff is at times unnecessarily hostile and unprofessional. While Cooperstein’s frustrations in having his requests be delayed for years is certainly understandable, that does not justify the personal attacks inserted in his communications.
“GRAMA does not contemplate adversarial combat over record requests.” Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25. Although the Supreme Court’s statement in Deseret News was contextually in application to the governmental entity’s handling of record requests, we think it applies just as evenly to the requester and how he treats the entity. Here, even though the requests pre-date Section 209’s enactment, Cooperstein has had communications with the University since 209 became law that defy the directive in Deseret News. Accordingly, we find that this factor weighs for the University.
V. Patterns of Conduct that Constitute an Abuse of GRAMA or Substantial Interference with the Entity’s Operations
For this factor, the University essentially argues that Cooperstein has abused his right of access to information and created substantial interference with its operations by frivolously appealing the denials and responses he receives in relation to his numerous record requests. For instance, among several examples the University points out, is that over the years, Cooperstein was dissatisfied with a number of the University’s determinations that the records he sought didn’t exist. He then appealed to the State Records Committee where, on numerous occasions, we ruled against him. The University claims that because these continuous appeals are denied at each step of the administrative process, and because we ruled in their favor, Cooperstein’s many appeals have been and are obviously meritless and do nothing but interfere with their operations.
But even if his appeals were meritless, may we punish an individual for exercising their right to appeal? We think not. Under GRAMA, each and every final decision on a record request—from the initial denial, to the chief administrative officer’s decision, to our decision—informs the requester of the right to appeal to a higher decision maker. See Utah Code §§ 63G-2-205(2)(c); -401(1)(a); -402(1)(a); -403(12)(c). The right to appeal an administrative GRAMA decision is the check and balance on government control and record access determinations. Penalizing a citizen for appealing adverse decisions on a right to information is a concerning request even if the appeal lacks sufficient evidence of records’ existence.
In this case, again, most of the appeals to this point have occurred prior to the enactment of Section 209. However, some appeals have since occurred. And while it’s true that Cooperstein has lost a number of appeals before us, the University fails to acknowledge that he has also prevailed in several. Consequently, we decline the University’s request to look only at the appeals he’s lost and make a blanket statement that because those appeals were without merit, Cooperstein has abused the GRAMA process. Because the law permits GRAMA appeals at each administrative decision, and because Cooperstein has prevailed in multiple cases before us contradicts the University’s position. Thus, this factor does not weigh in favor of the University.
CONCLUSION
In examining the statutory factors in their totality and weighing the respective evidence, we find that the University has not met its burden; that although Cooperstein’s patterns of behavior might have been considered vexatious prior to Section 209’s enactment, they don’t now.
We take a moment to publicly voice our displeasure at the communications he has had with the University and give him a strong reminder to not engage in combat in the GRAMA process. But we also remind the University that his frustrations in having to wait over four years for records is understandable and that the University should focus more time on improving its systems to more efficiently handle requests than working to prohibit a citizen who’s frustrated with its inefficiency from receiving the records he has a right to receive.
ORDER
THEREFORE, in accordance with this Decision, the petition is DENIED.
Entered this 26 day of August 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., chair pro tem, Williams, K., Biehler, E., Buchanan, M., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
DEPARTMENT OF PUBLIC SAFETY, Respondent,
DECISION AND ORDER
Case No. 24-83
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by the Department of Public Safety (“DPS”) (“Respondent”).
BACKGROUND
It’s helpful to outline the events that led to this appeal better to understand the parties' arguments and our analysis. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023).[1][2] The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), which essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor's signature if two-thirds of each house of the legislature approved it, which they did. At roughly 8:00 pm that evening, the Governor signed SB 240 into law.[3] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 5:13 pm, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2021, through March 1, 2025.” The request then named five individuals.
In a response dated March 7, 2024, DPS denied access to the records, citing that “daily calendars” are not records pursuant to § 63G-2-103(25). Petitioner filed an appeal of the denial to the Respondent’s chief administrative officer (“CAO”) on April 6, 2024. Commissioner Anderson designated Melanie Marlowe, pursuant to § 63G-2-401(9), to review the Petitioner's GRAMA appeal. In response to the Petitioner’s GRAMA appeal, DPS upheld the denial of the records, citing that “daily calendars” were not records under GRAMA.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 2024, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the parties' written materials, oral testimony, and oral arguments. 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Daily Calendars Are Not Records Under GRAMA
In the Respondent’s Statement of Facts it argues that Utah Code § 63G-2-103(25)(b)(ix) clearly excludes “daily calendars” from the definition of “record,” and therefore it properly denied the record request. But this argument assumes that the 2024 version of GRAMA applies to the request. It does not.
Petitioner submitted his request after business hours on February 28th but before SB 240 was signed into law. In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribune v. State Records Committee, 2019 UT 68, ¶1 n.1, where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in our determination of which version of GRAMA should be analyzed. Consequently, the 2023 version of GRAMA governs the request, and under that version, only personal calendars are excluded from the definition of “record.” Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
2. Legislative Intent
The Respondent next argues that the legislative intent behind GRAMA and SB 240 is abundantly clear that all forms of daily calendars fall outside GRAMA. However, with the 2023 version of GRAMA applying to the request at issue, the legislative intent has already been addressed by both this Committee and Knox. In both cases, but more elaborately analyzed by Judge Corum in Knox, the legislative intent was immaterial to the analysis because the plain language of the statute was clear. See Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶9 (“. . . where statutory language is plain and unambiguous, [a court] will not look beyond the same to divine legislative intent.”). Therefore, we see no need to focus on the legislative intent of the 2023 version of GRAMA.
3. Request After Business Hours
The Respondent argues that even if the legislative intent didn’t control, the 2024 version of GRAMA applies because Petitioner submitted his GRAMA request after work hours on the day SB 240 was signed into law and because the request wasn’t received and processed until the next day, the new law governs. In support of this argument, the Respondent cites Utah Administrative Rule R105-2-2, which states that record requests received after regular business hours (8:00 a.m. to 5:00 p.m.) will be deemed received the following business day.
However, this argument cuts against both case law and GRAMA itself. As discussed above, Utah courts have clearly indicated on numerous occasions that GRAMA is applied at the time the record request is made. Petitioner made the request on February 28th before SB 240 was signed into law. Therefore, the 2023 version of GRAMA applies. When it comes to the business hours issue, we find that GRAMA case law indicates that business hours are immaterial.
Additionally, Section 63G-2-307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added).
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement of the governmental entity is to classify the record when it is requested, not when it was received, and not subject to business hours. In this case, because the request was made before SB 240 was signed, classification would have to be made under the 2023 version of GRAMA. Consequently, we find that Section 307 of GRAMA and the case law such as Schroeder reinforce the notion that GRAMA applies the moment a request is made, irrespective of the time of day.
4. The Retroactive Effect of SB 240
To ensure that the 2023 version of GRAMA applies, we next examine whether SB 240 could be retroactive in its application.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has a retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we disagree that definition amendments are per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[4] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Gressman and Waddoups, supra.
5. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that future calendar events constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
6. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
7. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., Cornwall, M., Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. We allowed the Attorney General to redact certain information in his calendar prior to its disclosure. Knox, Decision and Order no. 23-22.
2. Moving forward, we will refer to this decision as “Knox I.”
3. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
4. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
SOUTH SALT LAKE CITY, Respondent,
DECISION AND ORDER
Case No. 24-75
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by South Salt Lake City (“Respondent”).
BACKGROUND
To better understand the parties’ arguments and our analysis, it’s helpful to outline the events that led to this appeal. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA, and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), that essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the approval of the governor if it was approved by two-thirds of the members of each house of the legislature, which it was. At roughly 8:00 pm that evening, the Governor signed SB 240 into law with immediate effect.[1] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 5:03 pm, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2020, through March 1, 2025.” The request then named three individuals.
In a response dated March 6, 2024, Respondent stated “Records responsive to your request do not exist. In accordance with Utah State Code 63G-2-103(25)(b)(ix) a daily calendar is not a record.” Petitioner filed an appeal to Respondent’s chief administrative officer (“CAO”), who never responded to the appeal.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Time Computation Under Utah Code
The Respondent's first argument is that the 2024 version of GRAMA is controlling because, under Section 68-3-7, GRAMA became operative the day after Petitioner submitted his request.
Section 68-3-7 provides that when an act is performed, time is computed by excluding the first day. Utah Code § 68-3-7(1)(a). Under GRAMA, when a record request is received, the governmental entity customarily has 10 business days to respond to the request. Utah Code § 63G-2-204(4)(b). Thus, according to the Respondent, because of Section 68-3-7, the 10-day clock to respond to a GRAMA request begins one day after the request is submitted. Consequently, the version of GRAMA that is in effect on day one of the 10-day response period is the one that governs the request. Regarding the request at issue, the argument is that although Petitioner submitted his request on the same day but prior to the Governor signing SB 240, the response time began running on the day after the request was submitted and when SB 240 went into law.
The time computation statute governs when a statutorily prescribed act is to be performed. This is made clear by the Subsection (1): “A person shall compute the period of time provided by law to perform an act . . .” Utah Code § 68-3-7(1) (emphasis added). Then, GRAMA states that the entity has 10 business days “after receiving a written request” to issue a formal response to the requester. Utah Code § 63G-2-204(4)(b). Read together, we agree that these statutes mean that the day the request is submitted is excluded from any statutory time periods and the clock begins on the following day. However, day 1 of the response period is not the point in time where we look to see which version of GRAMA is operative.
In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribute v. State Records Committee, 2019 UT 68, ¶1 n.1 where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in determining which version of GRAMA should be analyzed.
The Respondent goes on to argue that Section 63G-2-307 supports the idea that the 2024 version of GRAMA should apply because SB 240 was in effect when it classified the record. We disagree.
Section 307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added). Additionally, “[a] governmental entity may redesignate . . . or reclassify a record . . . at any time.” Utah Code § 63G-2-307(3). The Respondent argues that because Subsection 307(2) allows it to classify the record “at any time,” GRAMA becomes operational when that classification is made. Thus, because it classified the calendars after SB 240 went into effect, the 2024 version of GRAMA controls, and the calendars aren’t records.
We note that Section 307 deals with the classification of “records”—a defined term under GRAMA. Whether the requested calendars are “records” subject to GRAMA is the core issue of this appeal. However, even assuming that Section 307 could apply to the requested calendars, the problem with this argument is that Subsection 307(2) actually supports Petitioner’s position.
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement for the governmental entity is to classify the record when it is requested. That would require classification under the 2023 version of GRAMA when Petitioner made his request. Subsection 307(3) then permits a reclassification at any time after the record has been classified. Consequently, even if Section 307 is applied here, it is unhelpful to the Respondent since the record cannot be reclassified without first being initially classified when the request is made.
Finally, the Respondent argues that the 2024 version of GRAMA controls because it was under this version when Petitioner’s “cause of action” arose. The Respondent argues that Petitioner has no “cause of action” until his record request is denied and that under Gressman v. State of Utah¸ 2013 UT 63, it’s the cause of action that triggers GRAMA into effect, which, in this case, was after SB 240 was signed.
In Gressman, the Court analyzed the difference in retroactivity between procedural and substantive statutory amendments. The Court determined that the statutory amendments at issue were substantive and, therefore, could not be retroactive. This meant that the version of the law in place when the plaintiff’s claim arose was the controlling law. We view this as an oversimplification of Gressman.
It is true that the statute in Gressman was examined in the context of “when Mr. Gressman’s claim arose.” Gressman, ¶20. However, basing statutory effect solely on a “cause of action” is an imprecise formulation:
Instead, our cases stand for the simpler proposition that we apply the law as it exists at the time of the event regulated by the law in question. Thus, if a law regulates a breach of contract or tort, we apply the law as it exists when the alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action . . . Similarly,, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed.
State v. Clark, 2011 UT 23, ¶13 (emphasis added). From this instruction, it’s not a cause of action per se, but the event is being regulated. Since GRAMA is a unique statute that “does not contemplate adversarial combat over record requests,” we don’t believe that a cause of action must arise before the requester can gain certainty about which law will govern their request. Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25.
As discussed in greater detail below, SB 240 amended a statutory definition. The amendment substantively affected which records could be requested under GRAMA. As a result, the event that SB 240 regulates is not that which gives rise to a cause of action (the denial of the request) but the request itself. Therefore, we find the “cause of action” argument is unpersuasive.
Ultimately, we find that the case law cited above and the plain language of Section 307 shows that the requester has the right to rely on the version of GRAMA in effect when the record request was submitted, which, in this case, was the 2023 version of GRAMA.
2. The Retroactive Effect of SB 240
The Respondent argues that even if GRAMA was triggered into effect when Petitioner’s request was made, the request was still correctly denied because SB 240 applied to his request retroactively.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[2] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Waddoups, supra.
The Respondent brings Wasatch County v. Okelberry 2015 UT App 192 to our attention. That decision was rendered two years after Gressman and the Court held that a seemingly purely clarifying amendment retroactively applied. The Respondent argues that, as a more recent case than Gressman, Okelberry supports—and even controls—the proposition that a simple clarifying amendment has a retroactive effect. We are in no position to guess why the Okelberry court ignored the repudiation given in Gressman and reinforced in Waddoups, but regardless, we find that Okelberry is distinguishable in its facts.
In that case, the Supreme Court interpreted the “continuous use” requirement found in Section 72-5-104(1) (2009). The legislature disagreed with the Court’s definition and amended the statute in direct response to the Court’s decision. The amendment clarified the legislative intent behind “continuous use” by essentially defining the term and establishing elements that must be satisfied to trigger the statute’s application. Appeals then ensued over whether the legislative amendment applied retroactively.
Notably different from our case is that in Okelberry, is that the legislature’s amendment clarified the meaning of the term “continuously used.” Lawmakers established a definition to guide judicial interpretation. In our case, the legislature didn’t clarify the meaning of “daily calendars.” Instead, it made “daily calendars” its own line item in the list of items that don’t constitute a record. Thus, even though the legislature attempted to “clarify” its original intent behind daily calendars and GRAMA, it created an all-new definitional term after Judge Corum determined the statute's plain language was clear. The contrast between Okelberry and our case is clear: the former created a definition; the latter eliminated a right. The cases are not analogous, and Gressman still controls our decisions.
3. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that they constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
4. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
5. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., chair pro tem, Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
2. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
UTAH DEPARTMENT OF CORRECTIONS, Respondent,
DECISION AND ORDER
Case No. 24-84
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by the Department of Corrections (“UDC”) (“Respondent”).
BACKGROUND
To understand the parties' arguments and our analysis, it’s helpful to better outline the events that led to this appeal. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to the district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), which essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor's signature if two-thirds of each house of the legislature approved it, which they did. At roughly 8:00 pm that evening[1] the Governor signed SB 240 into law.[2] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
On February 28, 2024, at 5:42 pm, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2019, through March 1, 2025.” The request then named three individuals.
In a response dated March 7, 2024, UDC denied access to the records, citing that “calendars and/or appointments” do not constitute a record, pursuant to § 63G-2-103(25)(b)(ix). Petitioner filed an appeal of the denial to the Respondent’s chief administrative officer (“CAO”) on April 6, 2024. In his response, the CAO denied Mr. Herbet’s appeal because S.B. 240 had been signed into effect.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 2024, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the parties' written materials, oral testimony, and oral arguments. 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 withheld.
STATEMENT OF REASONS FOR DECISION
The Respondent raises several legal arguments for us to examine. We address each in turn.
1. Abeyance for Pending Appeal
As an initial matter, the Respondent argues that this matter should be continued until the appellate courts decide Knox. In the past, we have been favorable to holding our cases in abeyance when a court case involving a substantially similar issue is agreed upon by appeal. In those cases, however, the parties have mutually agreed to suspend their cases until the appealed case is resolved.
Here, Petitioner has not agreed to any such abeyance. Because nothing in the law requires us to continue cases pending an appeal with similar subject matter, we aren’t persuaded to do so now. Accordingly, we decide this matter based on its merits.
2. The Request and SB 240
Petitioner submitted his request after business hours on February 28th but before SB 240 was signed into law. In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribune v. State Records Committee, 2019 UT 68, ¶1 n.1, where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in determining which version of GRAMA should be analyzed.
Although Petitioner submitted his request the same day that SB 240 was signed, the submission was many hours before SB 240 became effective. Consequently, the 2023 version of GRAMA governs the request, and under that version, only personal calendars are excluded from the definition of “record.” Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
3. The Retroactive Effect of SB 240
To ensure that the 2023 version of GRAMA applies, we next examine whether SB 240 could be retroactive in its application.
As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here and, consequently, the law applies retroactively.
The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:
S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.
Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has a retroactive effect.
However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature amended the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be noted that amendments to definitions in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[3] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Gressman and Waddoups, supra.
4. GRAMA Requires Classification at the Time the Request is Made
Additionally, GRAMA itself supports the notion that the request is the triggering event that determines which version applies. Section 63G-2-307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added).
While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement of the governmental entity is to classify the record when it is requested, not when it was received, and not subject to business hours. In this case, because the request was made before SB 240 was signed, classification would have to be made under the 2023 version of GRAMA. Consequently, we find that Section 307 of GRAMA and the case law such as Schroeder reinforce the notion that GRAMA applies the moment a request is made, irrespective of the time of day.
5. The Breadth of the Request
It is true that a governmental entity must provide the requested record if, among other things, the requester “identifies the record with reasonable specificity.” Utah Code § 63G-2-201(6)(b). However, this requirement doesn’t require the requester to identify the subject record with exact precision. All that GRAMA requires is that the request describes the records in a manner that a reasonable person can understand what is being requested. Dodd v. Salt Lake City, Decision and Order no. 24-03, Utah State Records Committee (entered Jan. 16, 2024).
Here, the request sought records relating to calendars and appointments for specifically named individuals within a targeted date range. This request is specific enough as it names the individuals and provides a date range to which the record pertains. Further, records relating to calendars and appointments are a reasonable description to show that the Petitioner seeks calendars and appointments, including any other records that relate to the calendar entries.
We find that the request meets the “reasonable specificity” requirement in Subsection 201(6)(b). If Respondent desires further clarity or a narrower scope, it may seek clarity from Petitioner.
6. Future Entries on the Requested Calendars
In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that future calendar events constitute draft entries that are subject to eventual finalization.
Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.
7. Redactions
Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d).
8. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
The Respondent shall produce and deliver the requested records subject to the following:
1. The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2. The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3. The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., chair pro tem, Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. We take “judicial notice” if this approximate time due to our executive secretary’s correspondence with the Governor’s Office.
2. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
3. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JOHN GADD, Petitioner, v.
ALPINE SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 24-64
By this appeal, John Gadd (“Petitioner”), requests records and a fee waiver for records allegedly held by Alpine School District (“ASD”)(“Respondent”).
FACTS
On March 7, 2024, Petitioner submitted a request to the Respondent for a fee waiver and certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of:
1. All records related to any contract or agreement between anyone at Alpine School District and anyone at GT (also known as MGT of America Consulting) during the years of 2022-2024; and
2. All records related to any communication between anyone at Alpine School District and GT (also known as MGT of America Consulting) during the years of 2022-2024, including but limited to any emails sent between any @alpinedistrict.org email address and any @mgtconsulting.com email address.
Petitioner explained that he requested a fee waiver because the request would primarily benefit the public rather than himself as he was going to write an article regarding potential district reconfiguration which he would not be compensated for. He also requested that if the fee waiver were denied, he be permitted to inspect the records in person.
The Respondent responded to the request on March 14, 2024, providing certain records, including over 600 emails, but access to other requested records was denied. Additionally, the Respondent did not provide documents which it claimed were drafts and classified as protected under Utah Code § 63G-2-305(22).
Petitioner submitted an appeal of the partial denial to the Respondent’s chief administrative officer (“CAO”). The CAO responded to the appeal on April 12, 2024, partially affirming and partially reversing the initial response. Pertinent to this appeal, the response allowed access to some additional records and upheld the determination with respect to other records being drafts and properly classified as protected under Utah Code § 63G-2-305(22). The CAO also informed Petitioner that an estimated $40.00 fee would be charged to him to cover the costs of providing the records if he wanted to pick up an electronic copy of the records.
In response, Petitioner asserted that he would come to inspect the records in person and bring his own thumb drive to take a copy of the records, which, he argued, would relieve him of having to pay the fee. The Respondent replied that because its staff had to perform additional work in order to prepare the records for him, GRAMA permitted it to charge him for that work. Petitioner replied that he would just come and inspect and may or may not take a copy. The Respondent responded by clarifying that the additional work had been done to prepare the records to be inspected and therefore the fee remained due and owing even in connection with the inspection. The Respondent noted that it had been fulfilling Petitioner’s numerous requests without imposing fees but that his requests had become burdensome on its staff and resources and, therefore, it had determined that charging the permitted fees was appropriate. Petitioner responded by asserting that prior emails between he and the Respondent had created a contract to permit him to inspect without charge. He further stated that if the Respondent continued to demand the fee, he would pay it under protest. Petitioner then went, inspected, and copied the records the Respondent provided, and paid the $35.00 fee the District required. That fee was computed by the time required to respond to the request (1.25 hours at $35 per hour, less the first 15 minutes).
Petitioner appealed the protested fee and classification of the drafts to the State Records Committee (“Committee”). On September 5, 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 imposed fee was proper and whether the draft records were properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
I. Fee Waiver
Under GRAMA, “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, subject to Section[ ] to 63G-2-203. . . .” Utah Code § 63G-2-201(1)(a). Section 63G-2-203, in turn, governs the fees that may be assessed to a record request. Thus, while Subsection 201(1)(a) recognizes a general right to free inspection and access to records, that general right is subject to the provisions set forth in Section 203.
“In enacting GRAMA, our Legislature has balanced the public’s right to access government documents against the government’s interest in operating free from unreasonable and burdensome records requests.” Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist. 1999 UT App 136, ¶22. Section 63G-2-203 states that when a governmental entity must compile a record “in a form other than that normally maintained” the fee assessed for actual costs may include “the cost of staff time for compiling” the person’s request. Utah Code § 63G-2-203(2)(a)(i). In conjunction with the fee provisions outlined in Section 203, the Graham Court explained that “sound public policy requires an agency, prior to compiling records and imposing a fee, to inform the requestor that fees will be assessed and, if so desired, allow the requestor to modify or withdraw the request based on this information.” Graham, ¶27.
Petitioner argues that under Section 201, a fee can be charged only for providing copies of records and not for merely inspecting them in person. However, we don’t read the statute that way. Section 201 is a complex sentence composed of two independent clauses: (1) the right to inspect a public record free of charge; and (2) the right to take a copy of a public record. After the second clause, the statute continues with: “subject to Section[ ] 63G-2-203.” Importantly, the second clause is set off by two commas with one ending the clause and preceding “subject to” language. If this second comma were not present, the statute would essentially say that a person has ‘the right to inspect a record free of charge, and the right to take a copy of a record subject to Section 203.’ That is, Section 203 would apply only to taking a copy of a record. But with the insertion of the second comma, it’s clear that the second clause is set off from the beginning and ending of the sentence and the first clause is concluded by the “subject to” language in the same manner as the second. Thus, the statute essentially reads: ‘a person has the right to inspect a public record free of charge subject to Section 203’ and ‘a person has the right to take a copy of a public record subject to Section 203.’ Additionally, Subsection 203(1)(a) permits a governmental entity to charge fees to cover the governmental entity’s “actual costs of providing a record.” If fees could only apply to providing the record, Subsection 203(1)(a) would be adequate by itself and Subsection 203(2)(a), which allows for fees for compiling a record, would be superfluous. Thus, we conclude that fees may be charged for providing copies and inspecting records as long as the requirements of Section 203 and Graham are met.
In this case, the evidence indicates that the Respondent assessed a fee but didn’t allow Petitioner to modify or withdraw his request upon learning about it. As stated in Graham, public policy requires that when a governmental entity informs a requester of a fee, it must afford the requester the chance to modify or withdraw their request based on the new knowledge of the imposed fee. Here, the Respondent insisted that an estimated $40 fee would be charged for Petitioner to inspect the records. In order to view the records in person, Petitioner paid the requisite fee “in protest.”
We find that the Respondent was within its rights to charge a fee for the inspection of records if the fee satisfied the requirements of Section 203. However, because public policy was not followed in allowing Petitioner the opportunity to modify or withdraw his request upon learning about the fee, we find that the fee must be remitted. The public policy set out in Graham is one of respect to the public in their right to “easy and reasonable access” to public records, and therefore, it must be honored. Utah Code § 63G-2-102(3)(a).
II. Drafts
Under GRAMA, “a record that is . . . protected” under Section 63G-2-305 is not a public record. Utah Code § 63G-2-201(3)(a). Under Subsection 305(22), drafts are classified as protected records. The only exceptions to this classification are the empirical data in the draft (Utah Code § 63G-2-301(3)(i)) and drafts that were never finalized on but were relied upon by the governmental entity in carrying out an action or policy (Utah Code § 63G-2-301(3)(k)).
In reviewing the drafts in camera, we conclude that (1) there is no empirical data in the drafts; and (2) because the drafts were eventually finalized into an official version, which Petitioner has received a copy of, they were not relied upon for any formal action or policy.
Pursuant to Section 63G-2-403, when a record is classified as protected, we are to weigh the various interests favoring disclosing the record against the interests favoring disclosure. Utah Code 63G-2-403(11)(b). From our review of the drafts, we see nothing in them that is material in its difference to their finalized version. Many of the pages are replicas to the final version and others contain no information other than blank numbered lines. We see no benefit to releasing the drafts to Petitioner that he doesn’t already have from the finalized version. Accordingly, we find that the interests favoring restriction outweigh those favoring access.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part. The Respondent shall remit the $35.00 fee that Petitioner paid to inspect the records. Additionally, the Respondent is not required to disclose the drafts.
Entered this 16 day of September 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair Pro Tem, Utah State Records Committee
Committee members Cornwall, M., chair pro tem, Buchanan, M., Dubovik, N., Peterson, L., and Kichas, J. unanimously voted in favor of and joined in this Decision and Order.
(Mr. Kichas sat for this hearing in place of Committee Member Williams as his designee.)
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANNIE KNOX (KSL), Petitioner, v.
ATTORNEY GENERAL’S OFFICE, Respondent,
DECISION AND ORDER
Case No. 24-85
By this appeal, Annie Knox (“Petitioner”), requests records allegedly held by the Attorney General’s Office (“Respondent”).
BACKGROUND
To understand the parties' arguments and our analysis, it’s helpful to better outline the events that led to this appeal. We begin with a short summary of those events.
In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023).[1][2] The Attorney General’s Office appealed our decision to district court.
On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), which essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.).
The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor’s signature if two-thirds of the members of each house of the legislature approved it, which they did. At roughly 8:00 pm that evening, the Governor signed SB 240 into law.[3] Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending.
FACTS
The day before the Governor signed SB 240, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested Attorney General Sean Reyes’s daily calendar from January 1, 2020, to the present.
On March 5, 2024, the Respondent’s Records Counsel denied the request, stating: “Utah Code § 63G-2-103(25)(b)(ix) provides that ‘a daily calendar’ is not a ‘record’ subject to GRAMA. Accordingly, the Office does not maintain any records responsive to your request, which is respectfully denied.” Petitioner then appealed to the Respondent’s chief administrative officer (“CAO”), arguing that because the GRAMA request was submitted prior to SB 240 being signed into law, the Attorney General’s calendar is still subject to GRAMA in accordance with Judge Corum’s decision. Thus, the argument was that Petitioner was entitled to a response to her request based on the version of GRAMA that was in effect at the time of her request—February 27, 2024.
The CAO denied the appeal, stating that because Judge Corum’s decision was being appealed, it was not controlling. The CAO then went on to argue that because GRAMA allows a governmental entity to classify a record at any time under Section 307, the fact that it classified the calendar after SB 240 became effective meant that the new law now controlled, and the calendar was not a record.
Petitioner filed an appeal to the State Records Committee (“Committee”). On September 19, 2024, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the parties' written materials, oral testimony, and oral arguments. 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 record request was properly denied.
STATEMENT OF REASONS FOR DECISION
The parties raise several arguments over the central issue. We address those arguments in turn.
1. Legislative Intent of GRAMA
The Respondent’s primary argument is that the legislative intent behind both the 2023 version of GRAMA and SB 240 was that daily calendars are not—and never were—records subject to GRAMA. To support this argument, the Respondent points to Senator Bramble’s comments on the Senate floor when discussing SB 240, where he stated that SB 240 clarifies the long-held understanding that calendars were not records.
We follow guidance from the courts to determine the weight of Senator Bramble’s remarks. “The first step of statutory interpretation is to look to the plain language, and where statutory language is plain and unambiguous, [a court] will not look beyond the same to divine legislative intent. Rather, we are guided by the rule that a statute should generally be construed according to its plain language.” Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶9 (internal quotation marks omitted). Thus, if the language of the statute is clear and unambiguous, we rely on the statute’s face rather than the legislative history.
Importantly, Judge Corum found the 2023 GRAMA version plain and unambiguous. We found the same when we decided Knox I. In both cases, the 2023 version of GRAMA was interpreted that, by the plain language of Subsection 103(25)(b)(ix), only personal calendars were not subject to GRAMA. We see no reason to change that determination simply because SB 240 was signed into law a day after Petitioner submitted the GRAMA request at issue. Additionally, we are suspect of the idea that legislators' understanding of GRAMA in 2024 is lockstep with those who originally inserted the ‘daily calendar’ provision many years ago. Accordingly, we are unpersuaded by the argument that legislative intent controls the interpretation of GRAMA.
2. GRAMA Section 307 and its Applicability to the Request
The Respondent next turns our attention toward Section 63G-2-307 to argue that because the requested calendar was classified after SB 240 took effect, the subject calendar is not a record.
GRAMA defines “classify” (and its derivative forms) as “determining whether a record series, record, or information within a record is public, private, controlled, protected, or exempt from disclosure under Subsection 63G-2-201(3)(b).” Utah Code § 63G-2-103(3). Under Section 307, “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added). Additionally, “[a] governmental entity may redesignate . . . or reclassify a record . . . at any time.” Utah Code § 63G-2-307(3).
The Respondent argues that because Section 307 allows it to classify and reclassify a record at any time, the calendar is not a record because it issued the classification after SB 240 took effect. In other words, the request was made under the 2023 version of GRAMA, but since the Respondent classified the record under the 2024 version of GRAMA, the 2024 version controls, and the calendar is not a record.
In Petitioner’s appeal, she indicates that Subsection 307(2)-(3) may not apply here at all since those provisions pertain to “records,” a defined term under GRAMA. See Utah Code § 63G-2-103(25)(a)-(b). The Respondent vehemently denies that daily calendars are records under the Code’s definition. We note Petitioner’s observation but find that even if Section 307 does have applicability here, it does not favor the Respondent.
Subsection 307(2) does allow for a governmental entity to classify a record at any time, but, in all cases, the entity must issue a classification when “the record is requested.” Utah Code § 63G-2-307(2). This means that Respondent could have issued a classification over the subject record prior to the request, but once the request was made, it was required by Subsection 307(2) to classify the record at the time of the request—one day before SB 240 became law. Thus, Subsection 307(2) doesn’t help the Respondent but, in fact, favors Petitioner. After the classification was issued when the record was requested, Subsection 307(3) allowed the Respondent to reclassify the record after SB 240 was signed. This raises the question: Which version of GRAMA controls under these circumstances—the version in effect when the request was made or the version in effect when the request was reclassified?
On this point, Petitioner points to multiple cases that strongly indicate that GRAMA’s operations begin when the request is made. The most direct of those cases is Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, where the Court noted “. . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) The footnote in Schroeder was then cited in Salt Lake Tribune v. State Records Committee, 2019 UT 68, ¶1 n.1 to support the same principle: “We cite the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) See also Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request at issue was filed on March 10, 2010.); and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing the GRAMA provisions that were in effect at the time the record request was filed). We acknowledge that the citations above are footnotes and not direct holdings; however, we find the multiple footnotes from these appellate cases weighty and persuasive.
If we accept the Respondent’s interpretation of Section 307, we necessarily collide with the case law. However, the plain language of Section 307 avoids that collision, and we find that its provisions are in harmony with Schroeder and others. Together, the authority persuasively supports the notion that the 2023 version of GRAMA must be applied to Petitioner’s request because that was the version in effect when the record was requested.
3. SB 240 and Retroactivity
To be sure that the 2023 version of GRAMA applies to Petitioner’s request, we must examine whether SB 240 is retroactive.
Regarding the retroactive effect of statutes, Utah Code § 68-3-3 states that “[a] provision of the Utah Code is not retroactive unless the provision is expressly declared to be retroactive.” We acknowledge that there was no provision in SB 240 that would make it retroactive upon signing. Therefore, without an applicable exception outlined in case law, we must conclude that SB 240 was not retroactive and, therefore, the 2023 version of GRAMA ultimately controls.
In Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA.
“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id.
Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute.
When Judge Corum affirmed our decision in Knox I, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[4] The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Waddoups, supra.
4. Ability to Redact
Our previous decision in Knox I permitted the respondent to make certain redactions prior to disclosure. Specifically, “non-work-related items and the addresses of work-related appointments and meetings that Attorney General Reyes attended during the time period Petitioner requested” could be withheld from disclosure. Knox I, 23-22. We conceded on those redactions for the safety of the Attorney General. We believed that making the addresses of regular meetings and appointments public could possibly create a reasonable safety concern because the calendar entries might show patterned meeting schedules, and the public would then know where the Attorney General would likely be at certain times. We continue to see such redactions as reasonable and appropriate. Therefore, we find that prior to disclosure, the Respondent may redact the same information with respect to the current request.
5. Fees
Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED.
The Respondent shall deliver the requested record subject to any redactions for non-work-related items and addresses of work-related meetings and appointments. The Respondent may assess fees for producing the record.
Entered this 4 day of October 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair Pro tem, Utah State Records Committee
Committee members Dubovik, N., Cornwall, M., Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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).
1. We allowed the Attorney General to redact certain information in his calendar prior to its disclosure. Knox, Decision and Order no. 23-22.
2. Moving forward, we will refer to this decision as “Knox I.”
3. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”
4. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
HARSHAD DESAI, Petitioner, v.
PANGUITCH CITY, Respondent,
DECISION AND ORDER
Case No. 24-54
By this appeal, Harshad Desai (“Petitioner”), requests a fee waiver and records allegedly held by Panguitch City (“Respondent”).
FACTS
On January 22, 2024, and April 14, 2022, Petitioner submitted three record requests to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). The records he sought and Respondent’s respective processing of each request is as follows.
1. Panguitch City Project Applications filed for the year 2023, and later included the years 2022 and 2024. As this request included 270 pages of documents, the process of redaction required Respondent to copy the documents, redact the copies, make copies with redactions, and then organize and provide them to Mr. Desai. Consequently, Respondent felt it necessary to require a reasonable fee under Subsection 63G-2-203(1)(a). Mr. Desai refused to pay the fee.
2. Records showing the number of secondary water shares being used for culinary water; the number of water shares being used for secondary water; a list of people who are allotted secondary water shares; and a map of secondary water distribution within the city. Later, Mr. Desai included requests to show whether Respondent sells their portion of secondary water shares, if they sold them before, and how they are allotted. The request was denied on the grounds that Respondent does not control water ownership for secondary water in the area and, thus, has no responsive records. All secondary water is owned by a private entity: West Panguitch Irrigation and Reservoir Company.
3. Chip Seal Records for Parcel #219 – an alleyway in Panguitch behind the former Panguitch Inn on 50 North Main Street. Petitioner stated that a 1996 agreement between him and Respondent stated that he would transfer the deed of property to the city in exchange for the alleyway to be chip sealed periodically and that the city should keep a record of the chip seal work done on the property. After a reasonable search for the document, Respondent was able to find a 1996 agreement between the parties.
Petitioner filed an appeal of the denial to the Respondent’s chief administrative officer (“CAO”), Panguitch City Mayor who failed to respond within the time allowed.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On July 18, 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 Respondent may assess a fee in providing the project applications and whether a reasonable search was conducted for requests 2 and 3.
STATEMENT OF REASONS FOR DECISION
I. Project Applications
GRAMA states 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). GRAMA also allows a governmental entity to “charge a reasonable fee to cover the governmental entity’s actual cost of providing a record,” which includes compiling the records in a form other than how they are normally maintained. Utah Code § 63G-2-203(2). For a political subdivision, those fees are established “by ordinance or written formal policy adopted by the governing body.” Utah Code § 63G-2-203(3)(c).
In this case, Respondent has testified that Petitioner is currently the focus of law enforcement for electronic harassment of certain individuals, and as a result, it must be careful in sharing personal information contained in public records. Respondent argues that responding to the request requires compiling 270 pages of responsive records, redacting sensitive information that implicate applicant privacy interests (see Utah Code § 63G-2-302(2)(d)), then copying those redactions to produce a final redacted copy. This process results in producing records in a form other than how they are normally maintained and consequently triggers statutory permission to assess a fee.
We aren’t persuaded by Respondent’s argument. Project applications are certainly public records, and applicants are well aware of this fact when submitting them. Therefore, rather than providing redacted copies, we find it more appropriate to make the applications available for inspection in unredacted form. This way, Respondent can exercise oversight of the record and inspection. In doing so, we note that the Subsection 201(1)(a) is clear that inspecting a record is to be done free of charge. Therefore, no fee may be assessed for the inspection.
II. Water Share Records
“In an appeal concerning the existence of records, the issue is not whether the records exist, nor is it that the governmental entity performed a perfect search,” rather, the standard is whether the governmental entity performed a reasonable search. Trejos v. Weber County, Decision and Order no. 24-55, Utah State Records Committee (entered July 30, 2024); Utah Code § 63G-2-201(7)(b). However, in this case, we take notice on our own that Respondent is not the custodian of the records Petitioner seeks. See Utah Administrative Rule R655-15 (“’Water Company’ means a water user organization that owns water rights, to which water is distributed by a Commissioner and which, in turn, delivers and distributes water to its members on the basis of proportional ownership of shares or other interest.”). Because water shares are owned by water companies established under Utah law, it’s clear that Respondent would not own or maintain any water share records. The records Petitioner seeks are held by the applicable water company.
III. Chip Seal Records
When a person submits a GRAMA request to a governmental entity, a governmental entity is not required to create a record in order to fill the request. Utah Code § 63G-2-201(7)(a)(i). Here, Petitioner argues that because the 1996 agreement required Respondent to periodically seal the alleyway pavement, there must be responsive records. However, Respondent argues that the agreement did not contain any covenant that required it to maintain any records of the chip seals; and so, it hasn’t.
We agree with Respondent, especially given that the agreement contained no specificity of how often chip sealing had to occur. With no regular sealing schedule, and no requirement to retain records, we find that Respondent need not backtrack and create a record of past chip sealing work that it had performed.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
Respondent shall permit Petitioner to inspect the records at its location unredacted and free of charge.
The appeals on items 2 and 3 are denied.
It is so ordered.
Entered this 30 day of July 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., Chair pro tem, Williams, K., Biehler, E., Dubovik, N., and Peterson, L. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
",Partially Granted,2024-07-30T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MICHAEL JUDD (for George Staheli), Petitioner, v
UTAH TECH UNIVERSITY, Respondent,
ORDER DENYING CICERO’S OBJECTIONS TO SUBPOENA
Case No. 2024-132
In this case, Petitioner, Michael Judd, served a subpoena on non-party Cicero Group, LP (Cicero) commanding that Cicero appear at the hearing in this case to intervene and testify, as well as produce certain records for the Committee’s in camera review. Cicero objected to the subpoena on multiple grounds, and although it didn’t specifically say so, I interpret its objections as also including a motion to quash.
Cicero first argues that there is no applicable statute or rule that permits a subpoena command Cicero to intervene in the appeal. This objection is well-taken. Under the Government Records Access and Management Act (GRAMA), the Committee “may issue subpoenas or other orders to compel production of necessary evidence.” Utah Code § 63G-2-403(10)(a). Thus, because subpoenas are used for investigatory purposes in relation to the gathering of evidence, I relieve Cicero of the command to intervene as a party to this case.
Cicero next argues that the subpoena fails to identify an individual witness to appear. Indeed, Utah Administrative Rule R35-5-2(1) states that the subpoena shall specifically state why “the individual” must be present. Cicero cites to case law that supports its argument that a subpoena must name an individual witness. However, in each case it points to, the Court was asked to examine the issue under the applicable Rules of Civil Procedure. In cases before the State Records Committee, traditional fact discovery is prohibited. Utah Code § 63G-2-403(10)(a), which means those rules of civil procedure that govern subpoenas during fact discovery also don’t apply. To wit, the legislature expressly charged the Committee with the authority to make its own rules to govern our proceedings. See Utah Code § 63G-2-502(2)(a).
Here, I find it reasonable to conclude that Mr. Judd may not have sufficient knowledge of the correct employee at Cicero who is familiar with the Utah Tech University account and the records Mr. Judd seeks. It’s clear from the subpoena that Mr. Judd seeks someone knowledgeable concerning the specific records described in the subpoena to appear at the hearing so that the Committee may gather important facts about the records. Accordingly, I find that Cicero must produce a material witness familiar with the Utah Tech University account and the records described in the subpoena.
Cicero next argues that the requested records are irrelevant to this proceeding as set out by the plain language of Mr. Judd’s prayer for relief. The specific relief Mr. Judd requests in the appeal he filed with us is for us to make two determinations: (1) that Utah Tech does own the data files at issue; and (2) that governmental entities like Utah Tech take all reasonable steps needed to secure records that are subject to GRAMA, even if a vendor refuses to cooperate.
Under Utah Code § 63G-2-63G-2-403(11)(a), the final dispositive order of the State Records Committee must either grant “the relief sought, in whole or in part;” or uphold the access denial. However, the requester’s stated relief does not necessarily control the scope or frame of our review. The review itself is “de novo.” Utah Code § 63G-2-403(10)(c)(i). This means that I must make my own assessment of the governmental entity’s original decision. See Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶46 (holding that a “de novo reviews” requires a district court to review the city’s denial with no deference to the State Record Committee’s decision). Accordingly, I look at the original GRAMA request and the University’s response.
Mr. Judd initially requested two specifically described data files related to Utah Tech University’s name study in 2020. The University’s original denial explained that it doesn’t consider the requested records to belong to them. Therefore, a primary issue in this case that I must resolve is whether the described data files belong to Utah Tech University. To make that determination, I must review the requested records in conjunction with the contract between Cicero and Utah Tech University. Thus, irrespective of the relief Mr. Judd seeks, our review necessarily requires an examination of the data files and the contract. Accordingly, I find that the requested records are both relevant and material to these proceedings.
The next objection Cicero raises is that the requested records are irrelevant to this appeal in general because the central issue of this case is whether Utah Tech University possess the records and has performed a reasonable search for them. See Utah Administrative Rule R35-1-3(1). However, the dispositive issue on appeal is whether Utah Tech University owns the requested records as a matter of law; not whether it possesses them. As stated above, the only for us to make that determination is to review the subpoenaed records and examine them against the contract. Consequently, the records sought are relevant to these proceedings as.
Cicero next argues that the “doctrine of issue preclusion” precludes Mr. Judd from receiving the records. However, issue preclusion is not a basis to object to a subpoena under these proceedings. Utah Administrative Rule R35-5-2(5) states that a subpoena “shall be granted or denied by the Committee chair based on the same considerations as outlined in Subsections R35-5-2(2). Those considerations are (1) weighing whether the witness’s testimony is material and necessary; and (2) whether the burden of being present outweighs the witness’s need to appear. Utah Administrative Rule R35-5-2(2)(a)-(b). As a result, the issue of issue preclusion may not be considered in whether to grant the motion to quash.
Next, Cicero objects on grounds that the requested data files are not “records” under GRAMA. But, again, our review is based only on whether the evidence is material and necessary, and the burden to produce the records. See id. If Cicero’s objection extends to materiality, I’ve already concluded that the requested records must be reviewed to determine the central issue in this appeal. Thus, they are material and relevant.
Finally, Cicero argues that producing the requested data files would disclose confidential research information. However, Cicero misunderstands the subpoena and these proceedings. First, subpoenaed records will not be disclosed to the petitioner. The subpoena is clear that the records must be delivered to the Committee’s Executive Secretary. Second, the Committee is authorized by law to review sensitive and confidential records in camera pursuant to its quasi-judicial nature. See Utah Code § 63G-2-403(9). Thus, aside from an improper reason to quash the subpoena, this objection is without merit.
Therefore, in accordance with the Committee Chair’s obligation to consider the materiality, need, and burden imposed by the subpoena, Cicero’s “Objection to Subpoena to Cicero Group, LP” is denied. Cicero shall produce a material witness who can competently speak to the Utah Tech University account and records described in the subpoena. Cicero shall inform the Committee’s Executive Secretary of who that individual is and their contact information. Cicero shall also produce the records described in the subpoena to the Executive Secretary in accordance with the instructions attached to the subpoena.
It is so ordered.
Entered this 26 day of December 2024.
BY THE STATE RECORDS COMMITTEE
Nova Dubovik
Chair, pro tem, State Records Committee
enclosed: Penalty Notice; Appeal Notice
PENALTY NOTICE
You are hereby advised that you have a legal duty to comply with the subpoena as explained in this order. If you fail to comply, the Committee has statutory grounds to file a motion for a court order to compel your obedience with the subpoena. See Utah Code § 63G-2-403(10)(b).
APPEAL NOTICE
Once the Committee issues a final Decision and Order (“Order”) to dispose of the appeal, a party may seek judicial review in District Court 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’s 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.
",Denied,2024-12-26T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
TOOELE CITY, Petitioner, v.
KEVIN SULLIVAN, Respondent,
DECISION AND ORDER
Case No. 25-01
By this petition, Tooele City (“Petitioner”) seeks a formal order declaring Kevin Sullivan (“Respondent”) a vexatious requester “for the maximum time allowed by law,” including relief from the legal duty to respond further to the 21 Records Requests and other requests (if any) that have been filed and are currently pending with Petitioner.
ISSUES FOR REVIEW
We must determine whether Respondent is a vexatious requester under Section 63G-2-209, and, if so, the proper amount of time which Petitioner may be relieved from responding to Respondent’s record requests.
STATEMENT OF REASONS FOR DECISION
First and foremost, we note that Respondent failed to attend the hearing for this matter, nor did he submit any materials or evidence for us to review. As a result, we are left with no choice but to take and accept Petitioner’s submitted evidence at its face.
Utah Code § 63G-2-209 grants the Utah State Records Committee (“Committee”) the authority to declare an individual a “vexatious requester” and grant relief to a governmental entity from having to respond to the individual’s record requests for a period of time that may not exceed one year. Utah Code § 63G-2-209(8)(b). In determining whether an individual is a vexatious requester, this Committee must consider the following factors as prescribed by statute:
(a) the interests described in Section 63G-2-102;
(b) as applicable:
(i) the number of requests the individual has submitted to the governmental entity, including the number of pending requests;
(ii) the scope, nature, content, language, and subject matter of record requests the individual has submitted to the governmental entity;
(iii) the name, content, language, and subject matter of any communications to the governmental entity related to a record request;
(A) an abuse of the right of access to information under GRAMA; or
(B) substantial interference with the governmental entity’s operations; and
(c) any other factor the Committee considers relevant.
Utah Code § 63G-2-209(9)(a)-(c). When we examine these factors, we keep in mind that the governmental entity need not prove each individual factor. Rather, the evidentiary burden on the government is to prove through a totality of the circumstances that the individual is a vexatious requester. Utah Administrative Rule R35-1-3(2). This means that we focus on the factors listed in Subsection 209(9) in the aggregate, able to consider the weight of each factor on its own and then decide the cumulative result.
I. The Interests Described in 63G-2-102
The interests outlined in Section 102 are an individual’s right to access information concerning the public business, and the government’s interest in being allowed to restrict access to certain records under the provisions of GRAMA. Utah Code § 63G-2-102(1)-(2). So strong is the individual’s right to access information that the legislature codified it as a “constitutional right.” Id. In doing so, the legislature explicitly stated that its intent for GRAMA was to “promote the public’s right of easy and reasonable access to unrestricted public records,” “prevent abuse of confidentiality by governmental entities by permitting confidential treatment of records only as provided by [GRAMA],” and “favor public access when, in the application of this act, countervailing interests are of equal weight.” Utah Code § 63G-2-102(3)(a), (c), & (e).
However, an individual’s “constitutional right” to access information is not without its counterbalance. The legislature also codified another constitutional right as applied to the government: “the right of privacy in relation to personal data gathered by governmental entities.” Utah Code § 63G-2-102(1)(b). As it relates to governmental entities, the legislature’s explicit intent was to “specify those conditions under which the public interest in allowing restrictions on access to records may outweigh the public’s interest in access,” and to provide guidelines for disclosure and restrictions on access to records that are based on equitable weighing of interests and also “consistent with nationwide standards of information practices.” Utah Code § 63G-2-102(3)(b), (d). Given these strong legislative declarations for both the public and the government, we take on vexatious requester petitions solemnly, fully aware of the interests at stake.
II. Number of Requests
In the time spanning from December 2023 to August 2024, Respondent filed 21 record requests with Petitioner. That breakdown is as follows:
While nothing in GRAMA indicates the magic number where an ordinary requester’s requests reach the volume that warrants a vexatious label, we find that 21 requests is simply not enough.
In our previous vexatious requester decisions, we decided cases that dealt with a far larger volume of requests. For instance, in Logan City v. Eames, Decision and Order no. 24-22, Utah State Records Committee (Apr. 29, 2024), the requester had submitted over 100 record requests to the city in 2023, and nearly 20 in the first 4 months of 2024 alone. Id. The evidence also showed that since 2016, the requester had filed over 500 record requests since 2016. Id. Further, the requester would regularly file multiple requests within a short period of time (e.g., 35-40 requests within two days of each other) resulting in an administrative bottleneck in handling the requests. Id.
Also, in Office of State Treasurer v. Eames, Decision and Order no. 23-60, Utah State Records Committee (Nov. 28, 2023), we found the requester vexatious when, among other things, he submitted 43 requests over a period of nine months. We found that for 43 requests, the Treasurer’s Office had to reallocate its existing resources to process and respond to each request. Such efforts in handling the GRAMA requests were in addition to the staff’s regular job duties and caused a substantial burden on the Office’s resources.
Here, Petitioner concedes that 21 requests are a far cry from 500. Indeed, it’s obviously much closer to the 43 requests we examined in Office of State Treasurer. However, although we respect that 21 requests do impose an administrative burden on Petitioner and its staff, especially when 18 of those were filed on a single day, we don’t view them as significant enough to weigh in favor of Petitioner. Excepting the June 18th requests, Petitioner submitted only 3 record requests over the 9-month period. Additionally, we find it noteworthy that Respondent has not filed a new GRAMA request since August 2024. Clearly, he is concerned only with records concerning cases he is directly connected with and is not seeking more generalized records pertaining to other government business. Accordingly, this factor does not weigh in favor in Petitioner’s request.
III. Scope, Nature, and Subject Matter of the Record Requests
The 21 requests all concerned records related in some way or another to Respondent himself. The events precipitating the record requests were an assault case, a dog bite case, and a disorderly conduct case. The requests largely sought documents and internal correspondences concerning those cases (e.g., correspondences with certain named officers, the Mayor, and prosecutors). We view these types of requests as normal for someone involved in cases and wanting information. Indeed, nothing about the requests themselves seems scandalous, improper, or intended to throw a wrench in the administrative gears of Petitioner’s operations. This evidence also parts ways with our previous vexatious decisions.
For instance, in Office of the State Treasurer v. Eames (supra), the evidence showed that the respondent’s record requests were made in a “convoluted outline format that reads more like a lengthy statutory scheme than a record request.” Id. The requests were “riddled with acronyms” and difficult to read. Id. They often sought records that were already available publicly through online requests which caused a large waste of administrative time and resources to review the complaints.
In Logan City, the requester submitted requests that were broken up into confusing parts and subparts. The requests were unnecessarily lengthy and, especially upon appeals to the chief administrative officer, were overly complicated and unnecessarily burdensome to decipher. Logan City v. Eames (supra).
Here, we see no such hallmarks of problematic requests. The nature of the requests seems relatively normal. The scope is reasonably calculated to isolated events to which Respondent was either a party to or otherwise connected with. The subject matter all concerned events and individuals that had a direct connection with events concerning Respondent in one way or another. This also departs from our previous vexatious requester decisions which both involved record requests from a self-proclaimed “government watchdog” whose requests were an attempt to discover potential governmental improprieties. With such requests, the respondent showed no evidence in his defense that he had any actual or indirect knowledge that any improprieties in fact existed. His numerous convoluted requests were more of a fishing expedition that bogged down the government offices. Whereas in this case, with the requests being relating solely to events and issues that Respondent has a personal interest in, we find the requests themselves to be without significant concern.
IV. Nature, Content, Language, and Subject Matter of Communications.
Petitioner has submitted ample evidence that demonstrates troublesome communications from Respondent to Petitioner. These communications occurred in various mediums, such as in-person meetings, phone calls, and in writing. The subject matter of the communications spanned from complaints on how his case and various issues were handled to demands that certain employees and officers be terminated. Respondent even filed a complaint against Petitioner’s attorney with the Utah State Bar. Attached to Petitioner’s complaint are notarized affidavits from nine of Petitioner’s employees all attesting to either the hostile interactions they witnessed from Respondent, or the aggressiveness they received from him directly. Those interactions include demands to city officials that certain named personnel be terminated from their employment, and even a complaint filed with the Utah State Bar against Petitioner’s attorney.
Importantly, our brief description above of the hostility Respondent directed toward Petitioner is only a general synopsis. We acknowledge that the evidence Petitioner submitted to us in thorough and overwhelming, all showing that Respondent is cantankerous with Petitioner at best and unnecessarily belligerent and aggressive at worst.
In our previous vexatious decisions, we reviewed conduct that exhibited rudeness and even demands that employees be terminated, but the evidence in this case illustrates an even more truculent requester. We therefore find that Respondent’s continual harassment of Petitioner’s employees constitutes an abuse of the right to information under GRAMA. Accordingly, this factor is heavily weighted in Petitioner’s favor.
V. Other Relevant Factors
Another significant issue this Committee sees as favorable to Petitioner is how Respondent’s conduct has given Petitioner a reasonable concern for the physical safety of its employees. We’ve already addressed how we view “alarming and potentially dangerous” fixations on government employees as extremely troublesome. Logan City v. Eames (supra). And the evidence supplied here supports that employee safety is of reasonable concern.
For instance, some of Petitioner’s documented hostilities include:
From these actions and the abusive tone of other correspondences Respondent had with other city employees, we find that Petitioner’s employees’ concerns were reasonable. We find the behavior problematic as it created an ever-present cloud of concern over city workers in responding to the GRAMA requests and dealing with Respondent concerning them. Consequently, these facts weigh for Petitioner.
CONCLUSION
The primary purpose of Section 209 is to relieve governmental entities of the duty to respond to public record requests of vexatious requesters. Thus, Section 209 is most meaningful when the requester shows a pattern of submitting voluminous requests that abuse the GRAMA process and unnecessarily burden the governmental entity. In this case, however, we don’t see a strong pattern of that behavior. With the exception of the June 18th record requests, Respondent has submitted only 3 requests in a period of 9 months, with no requests since August 2024. Instead, we see a different pattern, one of unnecessary hostility and abuse toward Petitioner’s employees. This pattern creates a different burden on the governmental entity that can affect its efficiencies and procedures in filling record requests. Therefore, upon examining the totality of the circumstances and reviewing the evidence before us, we find that Respondent is indeed vexatious.
However, we find that the limited record requests over 9 months and the recent lack thereof mitigates our determination of how long Petitioner should be relieved of its responsive duties. We agree that Petitioner and its employees need some measure of assurance that it can proceed with its operations free of concern for any future record requests from Respondent because of the interactions with him that come with those requests. Consequently, in light of the forgoing facts and analysis, we conclude that Petitioner is relieved of its duty to respond to Respondent’s record requests for a period of 6 months from the date of this order. This includes the pending requests Petitioner has received from Respondent but not yet filled.
ORDER
In accordance with this Decision, the petition is hereby GRANTED. Petitioner has no legal obligation to respond to any record requests submitted by Respondent for 6 months from the date of this order, including currently pending requests.
It is so ordered.
Entered this 28 day of January 2025.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair Pro Tem, Utah State Records Committee
Committee members, Williams, K., chair pro tem, Peterson, L., Wilde, L., Sheeran, T., and Marshall, J. voted in favor of and joined in this Decision and Order.
Committee member Biehler, E. voted in opposition.
enclosed: 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. Utah Code § 63G-2-404(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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
ATTORNEY GENERAL’S OFFICE, Respondent,
AMENDED DECISION AND ORDER
Case No. 22-14
By this appeal, Petitioner, Steven Onysko, appeals the decision of Respondent, the Attorney General's Office, denying his request for unredacted records held by Respondent.
This case is a judicial remand from Petitioner’s appeal to district court of our decision in Onysko v. Attorney General’s Office, Decision and Order no. 22-14, Utah State Records Committee (May 2, 2022). See Amann v. Utah Attorney General’s Office, 3rd Judicial Dist. Case no. 170901997. The Court has instructed us to perform a weighing analysis to determine if, despite the record classification, we may still order disclosure. Accordingly, we amend Decision and Order no. 22-14 by adding Sections 7-11 below according to the Court’s instructions. All other parts of the Decision remain the same.
FACTS
On September 7, 2021, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to the Attorney General's Office (“the AG’s Office”). Mr. Onysko requested billing records from a specified law firm on behalf of the AG’s Office related to the Amann v. Utah Attorney Gen.'s Office, 3rd Judicial Dist. Case No. 170901997 case. Mr. Onysko made a similar records request in Onysko v. Attorney Gen.’s Office, State Records Case No. 21-10 (Feb. 22, 2021).
In a letter dated September 21, 2021, Government Records Counsel for the AG’s Office notified Mr. Onysko that his records request would be processed after payment of a $150 deposit. On September 28, 2021, the AG’s Office received payment for the deposit and thereafter provided Mr. Onysko 44 pages of redacted records.
Mr. Onysko filed an appeal with the AGs Office’s Chief Administrative Officer challenging the completeness of the records, the redactions, and the assessed fee. On November 26, 2021, General Counsel Daniel Burton, partially granted and partially denied Mr. Onysko’s appeal, providing additional records to Mr. Onysko but upholding the prior decision concerning the redactions.
On December 8, 2021, Mr. Onysko filed an appeal with the State Records Committee (“Committee”). On April 21, 2022, the Committee held a hearing where the parties were allowed to participate in person and electronically. After carefully considering the parties’ arguments and the evidence presented, the Committee 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 § 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. With the enactment of GRAMA, the Utah Legislature recognized the constitutional right to the public’s right to access to information concerning the conduct of the public’s business and the public policy interest in allowing a government to restrict access to certain records as specified in GRAMA for the public good. Utah Code § 63G-2-102(1)(a) & (2).
3. Records that are subject to the attorney-client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are also protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18). GRAMA generally classifies as “protected” any record that is prepared in anticipation of litigation or discloses an attorney’s work product. Schroeder v. Utah Attorney Gen’s Office, 2015 UT 77, ¶ 33, 358 P.3d 1075, 1083.
4. The Committee has previously addressed the question of whether legal invoices may be redacted by a governmental entity as protected records pursuant to Utah Code § 63G-2-305. In Cromar v. City of Cedar Hills, State Records Committee Case No. 13-02 (Feb. 13, 2013), the Committee upheld redactions for (1) Specific dates and number of hours of service rendered on particular dates, (2) Details regarding the subject matter of legal research, (3) The names of people spoken to and the subject matter of the conversation, (4) Details regarding the subject matter of any other activity, and (5) Any other items that would disclose the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation. See also, Wasatch Cty. Courier v. Wasatch Cty., State Records Committee Case No. 00-05 (Oct. 16, 2000) ¶ 10.
5. Having carefully considered the written and oral arguments of the parties, and having reviewed copies of the redacted legal invoices, the Committee finds that the records were properly classified by the AG’s Office as protected records pursuant to Utah Code § 63G-2-305(17) & (18). This decision is consistent with previous decisions of the Committee regarding legal billing records and the protections afforded by GRAMA for certain information within those legal billing records.
6. Mr. Onysko also argued that since the AG’s Office shared the billing records with the Utah Division of Risk Management, the AG’s Office can no longer claim that the records are covered by the attorney client privilege because they have been shared with a third party. However, Utah Code § 63A-4-207(1) states that under GRAMA, a “record provided to the Division of Risk Management by any governmental entity or political subdivision covered by the Risk Management Fund for the purpose of risk control or claims activities of the division shall be considered a record of the originating governmental entity.” Records shared with another governmental entity are “subject to the same restrictions on disclosure of the record as the originating entity.” Utah Code § 63G-2-206(6)(a). Since the reason why the AG’s Office shared the legal billing records with the Division of Risk Management was for the purpose of participation in the Risk Management Fund, the Committee finds that the records did not lose their protected status under GRAMA.
7. Upon finding that the records are correctly classified, we now look at whether the public interest in the records support releasing the records. Normally, we weigh “the various interests and public policies pertinent to the classification and disclosure or nondisclosure” to determine whether “the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). However, when a record is classified as protected pursuant to Subsection 305(17) or (18), we may order its disclosure only if the petitioner shows, “by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1). That is, rather than weigh the various interests, the question of public interest becomes an evidentiary one.
8. In Schroeder, the Court examined the trial court’s analysis concerning records classified under attorney work product protections (Utah Code §§ 63G-2-305(16), (17) (2011)). The Court’s explanation of how to analyze those attorney-related subsections are directly applicable to this case. The Court said:
. . . many of the exceptions to GRAMA’s disclosure requirements involve policies that virtually always outweigh the public’s right to know. Attorney-client confidentiality, . . [and others] are just a few examples. But while the public’s right to know is, in the abstract, often less compelling than these policies, the weight of any particular policy varies depending on the nature of the document at issue. For example, the interest in protecting attorney work product is more compelling during ongoing litigation than it is years after a dispute has been resolved. Schroeder v. Utah Attorney General’s Office, ¶55 (underline added).
Thus, the Schroeder Court acknowledges that the attorney work product protections are very strong. This of course applies to attorney-client privilege protections as well. As we discussed in Section 4 above, withholding certain information contained in legal invoices between attorney and client is valid.
9. Petitioner argues that the public interest in the withheld records is at least equal to the interest favoring restriction because the records could potentially show possible malfeasance in the Attorney General’s Office procuring an outside law firm for a significant amount of money to litigate the Amann case. Petitioner relies on Schroeder’s conclusion that “[a]pplying the proper standard, we conclude that the records should be disclosed because [ ] citizens have a right to know about potential public corruption, . . .” Schroede, ¶19. And, notably, Petitioner further argues that because Respondent did not submit a Statement of Facts or any evidence for the hearing, we cannot rely on any arguments that Respondent’s attorney puts forward. See State v. Worthen, 765 P.2d 839 (Utah 1988) (“The mere argument of counsel is not evidence and is not admissible as such unless made as a factual admission formally made and entered in the course of a trial.”); and Brown v. City of Fruit Heights, 2023 UT App 39, n.7 (“[An] argument of counsel is not evidence.”).
10. Even assuming that Petitioner is correct, this Committee is a quasi-judicial body charged by the legislature to adjudicate record disputes. See Common Cause of Utah v. Utah Public Service Com’'n, 598 P.2d 1312, 1314 (Utah 1979) (outlining the judicial functions a public adjudicative body that are similar to a court and therefore permit private deliberations.); and Utah Code § 63G-2-502(1). As a quasi-judicial body, we may take judicial notice of relevant facts and information available to the public. See In re Anderson, 2004 UT 7, ¶18 (taking notice of additional facts “made known to the court through public statements . . ., press reports of court filings . . ., and administrative difficulties . . . .”).
11. Knowing that, we take notice of the fact that the lawsuit to which the requested records pertain to, Amann v. Attorney General’s Office, is still being litigated and not yet fully disposed of. With litigation still ongoing, the particularized public policies of Subsections 305(17) and (18) are still highly relevant, highly applicable, and very strong. Even taking petitioner’s citation of Schroeder into account, we see that Petitioner only focuses on half of Schroeder’s analysis. In that case, the disclosure of attorney work product was ordered because the investigation had been over for 4 years and the non-profit organization at the center of the public corruption allegations had been dissolved. Schroder, ¶¶19, 63 (“Applying the proper standard, we conclude that the records should be disclosed because Ogden’s citizens have a right to know about potential public corruption, and the State’s closure of the investigation years ago significantly reduces any interest the state has in protecting attorney work product.”) (underline added). Unlike Schroeder, the litigation which concerns the attorney work product here is still ongoing; it is not years ago concluded. Consequently, we find that the public policies protecting attorney work product outweigh the public interest in disclosure, especially in light of currently pending litigation,
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED
Entered this 28 day of January 2025.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair Pro Tem, Utah State Records Committee
Committee members, Williams, K., chair pro tem, Biehler, E., Peterson, L., Wilde, L.,
Sheeran, T., and Marshall, J. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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. Utah Code § 63G-2-404(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).
",Denied,2022-05-02T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KENT SINGLETON, Petitioner, v.
UTAH DEPARTMENT OF COMMERCE, OFFICE OF PROPERTY RIGHTS OMBUDSMAN, Respondent,
DECISION AND ORDER
Case No. 25-02
By this appeal, Kent Singleton (“Petitioner”), requests records allegedly held by Utah Department of Commerce, Office of Property Rights Ombudsman (“Respondent”).
FACTS
The following background is necessary to set forth in deciding this appeal.
In May 2021, Petitioner requested that the Respondent conduct a mediation between him and the state and local agencies to resolve an alleged property dispute. In preparation for the mediation, the Respondent’s mediator communicated with the parties via email and sent a document entitled “The Mediation Process” that explained that the mediation process is confidential:
Because the mediation process works best when there is open and honest communication, the parties and the mediator must keep all discussions and all information revealed in mediation sessions confidential.
The mediator made notes about his communications with the parties which were then stored in the Respondent’s tracking database called “MyLicense Office.” A four-hour mediation then commenced on September 14, 2021.
On February 10, 2024, Mr. Singleton sent three public record requests for records to the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the request sought the following for the time period of January 2019 through February 10, 2024:
1. Any and all communications (including attempts of communication) and responses including emails, phone calls, texts with UDOT and communications with newspapers concerning my complaints against UDOT.”
2. “Any and all communications (including attempts of communication) and responses including emails, phone calls, texts with Morgan County and communications with newspapers concerning my complaints and $150 request for advisory opinion from McConnell (from list provided of options).”
3. “Any and all communications (including attempts of communication) and responses including emails, phone calls, texts with DNR/DWR and communications with newspapers concerning my complaints against and $150 request for advisory opinion from Bateman (from list provided of options).
On March 28, 2024, the Respondent responded to Request #1 by providing the requested records but with a few redactions to three pages. The redacted documents are the documents at issue in this appeal. By April 4, 2024, the Respondent had responded to Requests #2 and #3 by mailing Petitioner a thumb drive of responsive documents, which included some additional redacted documents. In its response, the Respondent explained that it redacted mediation communications from the records in accordance with Utah Code Sections 63G-2-305(7), (8), (23), and (33); as well as 78B-10-104 and 78B-10-19.[1]
On April 4, 2024, Petitioner filed an appeal of the partial denial to the Respondent’s chief administrative officer (“CAO”). Four days later, the CAO responded to the appeal by lifting some of the redactions on some documents but confirmed that the redactions in Request #1 were appropriate in light of the applicable law regarding mediation communications.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On January 16, 2025, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, records properly classified as “protected” under Section 63G-2-305 are not public records. Utah Code § 63G-2-305(3)(a). Additionally, when a record is governed by another state statute, then access to the record is “governed by the specific provisions of that statute.” Utah Code § 63G-2-107(1)(a). In the case where a different statute does govern a record, GRAMA may still apply to the extent that it “is not inconsistent with the statute.” Utah Code § 63G-2-107(1)(b).
Pertinent to this appeal is GRAMA’s protective provision found in Subsection 305(33) and the Utah Uniform Mediation Act. Subsection 305(33) provides that record are protected if they would “reveal the contents of settlement negotiations but not including final settlements or empirical data to the extent that they are not otherwise exempt from disclosure.” Utah Code § 63G-2-305(33). The Mediation Act provides: “Unless subject to . . . [GRAMA], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this state.” Utah Code 78B-10-108. Unless an exception applies in Section 78B-10-106, “a mediation communication is privileged, . . .” Utah Code § 78B-10-104(1). The possibly applicable provisions in Section 106 are (a) an agreement signed by all the parties to the mediation stating that they waive privilege, and (b) where a mediation communication is expressly made public under GRAMA. Utah Code 78B-10-106(1)(a)-(b).
If we determine that a record is correctly classified, we are to then weigh “the various interests and public policies pertinent to the classification and disclosure or nondisclosure” to see if “the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). If the public interest meets that threshold, we may then order the release of the records. Id.
Here, we keep in mind that Respondent is a mediator of disputes between private landowners and governmental entities. See Utah Code § 13-43-204(1). Petitioner seeks records from Respondent that pertain to its mediation communications. At the hearing, we reviewed the records in camera and determine that the contents of the records show mediation communications related to the September 2021, mediation efforts between Petitioner, Respondent, and the state agencies. Accordingly, we find that the records are correctly classified and that the Utah Uniform Mediation Act applies to this appeal.
Because the requested records were properly classified, we now weigh the various interests and public policies to determine if disclosure is warranted. Petitioner argues that transparency is vital to the public trust during the eminent domain proceedings he’s had to endure. He argues that certain improprieties may have occurred during those proceedings, like him not receiving important communications from the state agencies and the county suddenly changing the use of his property to a public park. Of course, the interests concerning private property rights, especially with respect to eminent domain proceedings is strong.
On the other hand, the interests favoring restriction are stronger. The mediation process is an important one. That process is designed to help entangled parties avoid costly protracted litigation, curtail the emotional and financial devastation that potentially comes with losing litigation, and find a compromise that both parties can contently walk away with. The Utah Supreme Court explained that “Confidentiality of all communications between the parties or among them and the mediator serves an important public policy of promoting a broad discussion of potential resolutions to the matters being mediated.” Reese v. Tingey Const. 2008 UT 7, ¶8 (quoting Wilmington Hospitality, L.L.C. v. New Castle County, 788 A.2d 536, 541 (Del.Ch.2001). The Court concluded that “[t]his candid exchange of information and ideas can be achieved only when the parties are assured that their communications will be protected from post mediation disclosure.” Id. The Court also addressed the times when disclosure is permissible, such as those exceptions outlined in the law (we outlined two of those exceptions above), and in certain circumstances when “duress, fraud, or another credible contract defense is alleged, the interests of justice may outweigh the parties’ need for confidentiality.” Id., ¶9.
We find that the public policy behind the Mediation Act’s confidentiality provisions and GRAMA’s Subsection 305(33) outweigh the public interest in this case. No facts have been shown that fraud, duress, or other contract defenses apply, nor do we see that any exceptions to the Mediation Act arise. Accordingly, we conclude that the records have been properly withheld in the interests of preserving and maintaining the mediation process.
ORDER
In accordance with our Decision, Petitioner’s appeal is hereby DENIED
Entered this 28 day of January 2025.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair Pro Tem, Utah State Records Committee
Committee members, Williams, K., chair pro tem, Biehler, E., Peterson, L., Sheeran, T., and Marshall, J. unanimously voted in favor of and joined in this Decision and Order.
Committee member Wilde, L. recused himself from this appeal.
enclosed: 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. Utah Code § 63G-2-404(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).
1. Petitioner and the Respondent had been engaged in mediation unrelated to this GRAMA dispute prior to his initial GRAMA request. Some of the responsive records included communications that pertained to the mediation efforts.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
NYSSA OLSEN, Petitioner, v.
CACHE COUNTY ATTORNEY’S OFFICE, Respondent,
DECISION AND ORDER
Case No. 25-05
By this appeal, Nyssa Olsen (“Petitioner”), requests records allegedly held by Cache County Attorney’s Office (“CCAO”) (“Respondent”).
FACTS
On March 13, 2024, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). In her request, Ms. Olsen stated the following, “I am writing to submit a formal request under [GRAMA] for access to certain public records held by the Cache County. Specifically, I am requesting copies of emails in their original form from the servers that pertain to me, Nyssa Durfey (now Olsen), from January 1, 2020, to February 18, 2022. In accordance with GRAMA, I am requesting access to emails that contain my name in the body and/or the subject of the test, send or received by any individual within Cache County including but not limited to the following individuals: Terryl Warner, James Swink, Tony Baird, Stefani Olson, Amy Adams, and John Luthi.”
Respondent provided a few responsive documents, but, ultimately, the request was denied. Respondent informed Petitioner that prior to 2024, the “Attorney’s office email system (MS 0365 cloud) was never retention compliant, and that the office didn’t migrate to Google with the rest of the county.” This meant that the requested emails were no longer accessible by IT.
Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”). In his response, the CAO initially requested that the records be provided. However, after a subsequent review, it was determined that no records existed, and Petitioner’s appeal was eventually denied.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On January 16, 2025, 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 a reasonable search was conducted to find and produce the records.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). In response to a request for public records, “[a] governmental entity shall conduct a reasonable search for a requested record.” Utah Code § 63G-2-201(7)(b). When determining whether the governmental entity possess or maintains the requested records, “the governmental entity must show by a preponderance of the evidence that its search for the requested records was reasonable.” Utah Administrative Rule R35-1-3(1)(a). If the government makes such a showing, the burden then shifts to the requester “who must show by a preponderance of the evidence that the search efforts were not reasonable.” Utah Administrative Rule R35-1-3(1)(b).
Petitioner failed to attend the hearing and submitted no evidence to oppose Respondent’s claims. Therefore, we proceed by outlining and deciding on Respondent’s claims alone.
Respondent’s clerk, Bryson Behm, testified that it had initially approved the requests and given Petitioner responsive record it had. Mr. Behm further testified that two email accounts could not be accessed because they were deleted after the employees using those accounts were terminated from employment. Consequently, those requested records didn’t exist. Mr. Behm also relayed that the part of the request seeking emails from the entire county that included her name was too broad and therefore denied for lack of reasonable specificity.
Based on Mr. Behm’s testimony, the facts we’ve found as laid out above, and Petitioner’s failure to appear and offer argument or evidence to the contrary, we are satisfied that Respondent satisfied its duty to conduct a reasonable search and that the outstanding records don’t exist.
ORDER
In accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 28 day of January 2025.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair Pro Tem, Utah State Records Committee
Committee members, Williams, K., chair pro tem, Biehler, E., Peterson, L., Wilde, L., Sheeran, T., and Marshall, J. unanimously voted in favor of and joined in this Decision and Order.
Enclosed: 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. Utah Code § 63G-2-404(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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
HARSHAD DESAI, Petitioner, v.
PANGUITCH CITY, Respondent,
DECISION AND ORDER
Case No. 25-04
By this appeal, Harshad Desai (“Petitioner”), requests records allegedly held by Panguitch City (“Respondent”).
FACTS
When the State Records Committee (“Committee”) heard and decided. Desai v. Panguitch City, Decision and Order no. 24-54, Utah State Records Committee (Jul. 30, 2024), Petitioner claims that there was a misunderstanding in that case and that one issue regarding water shares was not fully addressed. This appeal addresses that remaining issue.
Pursuant to the Government Records Access and Management Act (“GRAMA”), Petitioner seeks records concerning 393 water shares owned by Respondent. Specifically, Petitioner wants to know which city residents are receiving secondary water. Respondent claimed it has no responsive records. Petitioner argues there must be a map or other record showing the water shares and users. The dispute was eventually appealed to us.
On January 16, 2025, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). In response to a request for public records, “[a] governmental entity shall conduct a reasonable search for a requested record.” Utah Code § 63G-2-201(7)(b). When determining whether the governmental entity possess or maintains the requested records, “the governmental entity must show by a preponderance of the evidence that its search for the requested records was reasonable.” Utah Administrative Rule R35-1-3(1)(a). If the government makes such a showing, the burden then shifts to the requester “who must show by a preponderance of the evidence that the search efforts were not reasonable.” Utah Administrative Rule R35-1-3(1)(b).
At the hearing, Respondent presented that Respondent’s water shares have nothing to do with culinary water. Respondent’s culinary water is derived from the water rights it owns to its springs. As a result, the 393 water shares that Respondent owns is all secondary water. The shares were purchased 40 years ago to improve its water systems. Respondent’s retention schedule for water share purchases is 10 years which created immense difficulty in searching for and trying to find any record of who Respondent purchased the shares from four decades ago. Respondent also explained that the maps it has doesn’t show actual ownership of which property owners own or use secondary water. Instead, the maps show the valves that the secondary water runs to. Petitioner has presented no evidence to the existence of the records or that Respondent’s search was not reasonable.
Because Petitioner’s request technically concerns actual ownership and use, and considering that the shares for secondary water use are three decades beyond Respondent’s record retention schedule, we are satisfied in concluding that Respondent has performed a reasonable search and that the records likely don’t exist. With that said, we strongly encourage Respondent to continue working amicably with Petitioner to provide related records he does have, such as the maps that it has concerning the secondary water routing and use.
ORDER
In accordance with our Decision, Petitioner’s appeal is hereby DENIED
Entered this 28 day of January 2025.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair Pro Tem, Utah State Records Committee
Committee members, Williams, K., chair pro tem, Biehler, E., Peterson, L., Wilde, L.,
Sheeran, T., and Marshall, J. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DANIELLA RIVERA (KSL), Petitioner, v.
TAYLORSVILLE POLICE DEPARTMENT, Respondent,
DECISION AND ORDER
Case No. 25-03
By this appeal, Daniella Rivera (“Petitioner”), requests records allegedly held by Taylorsville Police Department (“Respondent”).
FACTS
On March 19, 2024, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested records “related to case # 23-40143 WESLEY HAZEN SALISBURY (DOB: November 28, 1983),” including “all written reports as well as any audio/video recordings and any other police generated records related to this case.” Petitioner also requested an expedited response and fee waiver because she is a journalist.
On April 1st and April 8th, Respondent released to Petitioner a redacted copy of the police report via the online record request portal. Included in the release was an “Intent to Comply” stating that the media file, and police interview, related to the requested case was classified as “private” pursuant to GRAMA § 63G-2-302(2)(d).
On April 11, 2025, Petitioner filed an appeal[1] but never received a formal response, which constitutes a de facto denial under GRAMA. See Utah Code § 63G-2-204(9).
Petitioner appealed the CAO’s non-response to the State Records Committee (“Committee”). On January 16, 2025, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
At the hearing, Petitioner informed the Committee that Respondent’s attorney contacted her prior to the hearing to attempt mediation and resolve this appeal. Respondent conceded during the hearing that it had reviewed the requested record, made redactions to protect the personal privacy interests contained within the record, and sent it to its attorney to offer for a settlement. Petitioner indicated to the Committee that the offer was acceptable. Accordingly, we dispose of this matter by granting the appeal and ordering the record as offered by Respondent.
ORDER
In accordance with our Decision, Petitioner’s appeal is hereby GRANTED. Respondent shall provide the requested record to Petitioner subject to redactions of any identifying information that could reveal the identities of victims and witnesses pursuant to Subsection 63G-2-302(2)(d).
It is so ordered.
Entered this 28 day of January 2025.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair Pro Tem, Utah State Records Committee
Committee members, Williams, K. chair pro tem, Biehler, E., Peterson, L., Wilde, L.,
Sheeran, T., and Marshall, J. unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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. Utah Code § 63G-2-404(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).
1. Under Section 63G-2-401(1)(a), all denials must be appealed to the entity’s chief executive officer before the State Records Committee may hear an appeal. In Taylorsville’s notice of denial, they failed to include “the name … of the chief administrative officer of the governmental entity.” Utah Code § 63G-2-205(2)(d). When Petitioner filed its appeal, Petitioner sent the appeal to the Taylorsville City Attorney, who is not Taylorsville’s chief administrative officer. Because of the error in Taylorsville’s notice of denial, and the fact that neither party disputed whether the State Records Committee could hear the appeal, we find that this appeal is appropriately before the Committee. The Committee recommends that Taylorsville fix its denial form to comply with Section 63G-2-205.
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
WOODS CROSS POLICE DEPARTMENT, Respondent,
DECISION AND ORDER
Case No. 25-06
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Woods Cross Police Department (“Respondent”).
FACTS
On February 27, 2024, Petitioner submitted a request to Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested “Bodycam video for the following cases, with appropriate redactions: X22-03301; X22-04650; X22-04789; and X23-02416.” Scott Buchanan, Interim Chief of Police for Woods Cross, responded to the request by saying: (1) no responsive records existed for X22-03301, X22-04789, and X22-02416; (2) one responsive record existed for X22-04650 but “90-95%” of the video footage must be redacted pursuant to Utah Code § 63G-2-302(2)(d); and (3) the portions of the record that would be considered initial contact reports were still withheld under Subsection 302(2)(d) because disclosing them “would constitute a clear violation of the privacy principles described above.”
Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”) on March 27, 2024. In a letter dated April 3, 2024, the CAO denied Mr. Herbets’s appeal for the primary reason that there is a precedent set by a decision of the Utah State Records Committee. Citing to that case, the CAO determined that the requested body-worn camera records were “protected” under U.C.A § 63G-2-305(65) because the recorded footage included sounds and images “inside a hospital or health care facility.” Because the CAO found that none of the statutory exceptions applied to the requested footage, he upheld the initial denial.
Petitioner appealed the CAO’s decision to the State Records Committee. On January 16, 2025, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, records that are classified as “protected” are not public records. Utah Code § 63G-2-201(3)(a). And only those records specified in Section 63G-2-305 may be classified as protected. Utah Code § 63G-2-305(4). When a record is properly classified as protected, we may still order disclosure of the record if, “upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure,” we find that the “public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b).
Under Subsection 305(64) the following records are protected:
(64) an audio or video recording created by a body-worn camera, as that term is defined in Section 77-7a-103, that records sound or images inside a hospital or health care facility as those terms are defined in Section 78B-3-403, inside a clinic of a health care provider, as that term is defined in Section 78B-3-403, or inside a human service program as that term is defined in Section 26B-2-101, except for recordings that:
(a) depict the commission of an alleged crime;
(b) record any encounter between a law enforcement officer and a person that results in death or bodily injury, or includes an instance when an officer fires a weapon;
(c) record any encounter that is the subject of a complaint or a legal proceeding against a law enforcement officer or law enforcement agency;
(d) contain an officer involved critical incident as defined in Subsection 76-2-408(1)(f); or
(e)have been requested for reclassification as a public record by a subject or authorized agent of a subject featured in the recording.
Utah Code § 63G-2-305(64)(a)-(e).
The parties raise no dispute over whether the body cam footage meets the definition in Section 77-7a-103. Nor do they dispute whether the facility was a health care facility. Instead, Petitioner argues that the exceptions in Subsection 305(64)(a) and (c) apply and, even if they do not apply, the public interest in the record is strong enough to warrant releasing the record.
At the hearing, the Committee viewed the body cam footage in camera. In doing so, we found the footage to be exactly as Respondent described: the officer met and spoke with certain individuals inside a health care facility. For a brief minutes, the officer exited the facility, walked to his vehicle, retrieved a form from his bag, and then went back into the facility and returned to the individuals to have them fill out the form. From our review, we conclude that the record is properly classified and none of the exceptions outlined in Subsection 305(64) apply.
With the record classified correctly, we move on to weighing the various interests and public policies to determine if the public interest in the record “is at least equal to” the interests favoring restriction. Petitioner, as an investigative journalist, is seeking the records to determine if patients’ rights are being adequately protected. Specifically, Petitioner wants to see how Respondent is handling residents’ complaints of abuse and why prosecutions aren’t occurring. Petitioner argues that the public interest is high because, according to Petitioner, the particular healthcare facility at issue in the footage has more abuse cases than any other facility in Utah. According to Petitioner, the past cases of abuse were never prosecuted because police reports concluded that since the alleged crime occurred within a psychiatric facility, they chose not to screen the cases, The footage at issue here is important to Petitioner because it would show how police officers handle complaints at this facility.
On the other hand, the footage clearly recorded images and audio inside a healthcare facility. Within that capture were patients of the facility, including minors and healthcare workers that were in an office with healthcare information that was in view of the camera. The verbal exchange between the officer, the worker, and the minor subject concerned the minor’s personal situation. Naturally, this recorded footage is sensitive and deserves protection. Minors and their personal healthcare, whether it’s in the form of documented information from a provider, or conversations with a social worker and officer, deserve strong deference to GRAMA’s protections. See generally Burns v. Boyden, 2006 UT 14, ¶24 (explaining that patients “expect their records to remain confidential from the general public.”). While Petitioner’s intentions are laudable, and we agree that abuse should be exposed, we are reluctant to find that this interest is strong enough to pierce the privacy of a minor’s interaction with an officer and social worker within the minor’s healthcare facility. Consequently, we find that the particular policy protections of Subsection 305(64) still outweigh the public interest in the requested records.
ORDER
In accordance with our Decision, the appeal is hereby DENIED.
Entered this 28 day of January 2025.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair Pro Tem, Utah State Records Committee
Committee members, Williams, K., chair pro tem, Biehler, E., Wilde, L., and Sheeran, T. voted in favor of and joined in this Decision and Order.
Committee members Peterson, L. and Marshall, J. voted in opposition.
enclosed: 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. Utah Code § 63G-2-404(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).
",Denied,2025-01-28T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MATTHEW DRACHMAN (UVU Review), Petitioner, v.
UTAH VALLEY UNIVERSITY, Respondent,
DECISION AND ORDER
Case No. 25-08
By this appeal, Matthew Drachman (“Petitioner”), requests records allegedly held by Utah Valley University (“UVU”)(“Respondent”).
FACTS
On March 7, 2024, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner was seeking “any and all documents pertaining [to] the UVUSA elections through the months of February 1 and March 8, 2024.” The request specifically sought grievance forms and donation forms related to each candidate, election committee communications, including their voted on various election decisions, grievance debates, membership of the body and the group chat log of the committee while performing their duties. On March 18, 2024, Respondent denied Petitioner’s GRAMA request because it found that the records responsive to Petitioner’s request were education records subject to the Family Educational Rights and Privacy Act (“FERPA”).
On March 19, 2024, Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”). The CAO denied the appeal in large part, determining that the requested records were governed by and subject to FERPA. The CAO also found that the records, if they were subject to GRAMA, would be classified as private because they contain “data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.” But the CAO released two records to Petitioner: The elections budget and the names of the members of the elections committee. All student identification numbers were redacted from the record.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On January 16, 2025, 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 are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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, the disclosure of an “education record,” as defined in the Family Educational Rights and Privacy Act (“FERPA”) is governed by 34 C.F.R. Part 99. Utah Code § 63G-2-107(3). Normally, if a different statute, including a federal law, governs the requested record, but the law is not inconsistent with GRAMA’s provisions, then GRAMA can still control the record’s disclosure. Utah Code § 63G-2-107(1)(a)-(b); see also Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr. 2008 UT 88, ¶17 (“while [the governing statute’s] specific provisions will control in the event of an irreconcilable conflict, GRAMA’s provisions will still apply so long as they are not inconsistent with [the governing statute]”). Notably, however, this does not apply to FERPA records. GRAMA explicitly states that even if FERPA provisions are not inconsistent with GRAMA, FERPA will still control. Utah Code § 63G-2-107(1)(b).
FERPA is a federal law that prohibits federal funding to schools that have a “policy or practice” of permitting the release of a student’s education records without written consent. 20 U.S.C. § 1232g(b)(1). “Education records,” in turn, are defined as “records that are: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.” 34 C.F.R. § 99.3.
Here, there doesn’t seem to be any dispute as to whether the requested records directly relate to a student. The case law makes clear that “[a] plain reading of FERPA’s statutory language reveals that Congress intended for the definition of education records to be broad in scope.” Bryner v. Canyons School Dist., 2015 UT App 131, ¶131. Indeed, “nothing in the plain language of the statute limits the application of FERPA to only academic records.” Id. (italics original). “Notably, Congress made no content-based judgments with regard to its ‘education records’ definition.” United States v. Miami Univ., 294 F.3d 797, 812 (6th Cir. 2002). Petitioner’s request is broad enough to include grievances made against student candidates running for office, records of donations received by specific candidates, and election committee communications and votes on candidate grievances. Therefore, we are satisfied that as the records relate directly to specific students. Because such records relate directly to the students, the first prong of FERPA’s definition is satisfied.
To the second prong of FERPA’s definition, in Owasso Independent School Dist.. No. 1-011 v. Falvo, 534 U.S. 426 (2002), the U.S. Supreme Court interpreted FERPA’s definition of “education records.” The Court explained that “[t]he word ‘maintain’ suggests FERPA records will be kept in a records room at the school or permanent secure database, perhaps even after the student is no longer enrolled.” Id. at 443. Further, the Court concluded that education records are “kept in one place” by a ”single central custodian, such as a registrar. Id. at 434-35. Here, Respondent testified that the requested records are maintained on the “One Drive Share Point” which is managed by Respondent’s staff members related to Respondent’s election committee. This One Drive is the location where all election committee related records are held. From this, we find that the records are held and maintained in a central database—the One Drive—which is managed by staff assigned to oversee the election committee’s records.
While the records may not be associated with students’ official transcripts or held in the registrar’s office, the fact that the database is controlled by Respondent and its staff maintains it harmonizes with the requirements that Owasso outlined. Accordingly, we find that the withheld records are education records under FERPA’s definition.
In 2024, the legislature amended Section 107 to better clarify that even if GRAMA doesn’t conflict with FERPA, FERPA still controls. Utah Code § 63G-2-107(1)(b). This notion strays from other statutes where the law does allow GRAMA to remain in control where it isn’t inconsistent with the other governing statute. But with Subsection 107 better clarified, we must defer to FERPA, which allows compelled disclosure only in the event of a court order, not an administrative one. See 34 C.F.R. § 99.31(a)(9)(i) (an educational institution may disclose an education record without the required consent if the disclosure is to comply with a judicial order). Since FERPA requires a court order, we are left with no authority to order Respondent to disclose the requested records even if we found that public interest outweighed continued restriction.
ORDER
In accordance with our Decision, Petitioner’s appeal is hereby DENIED
Entered this 28 day of January 2025.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair Pro Tem, Utah State Records Committee
Committee members, Williams, K., chair pro tem, Biehler, E., Wilde, L., Sheeran, T., and Marshall, J. voted in favor of and joined in this Decision and Order.
Committee members Peterson, L. voted in opposition.
enclosed: 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.. Utah Code § 63G-2-404(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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ADAM HERBETS (Fox 13), Petitioner, v.
VANGUARD ACADEMY, Respondent,
DECISION AND ORDER
Case No. 25-07
By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Vanguard Academy (“Respondent”).
FACTS
On February 20, 2024, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested “copies of all records showing the disclosure of family relationships as required by Vanguard Academy’s charter agreement.”
Respondent assessed a $48.75 fee to produce the records and, once paid, delivered responsive records that pertained to the 2022-23 school year. Respondent also instructed Petitioner to inform them “right away if you want Vanguard to search for disclosures for earlier school years.” Petitioner then responded by explaining that he didn’t realize the records would be different each year and then asked a series of questions that related to the cost in relation to the revelation that the records are ever-changing. When his email went unanswered, Petitioner treated the overall response and delivery of the 2022-23 records as a partial denial since he expected more replete records, and he appealed to Respondent’s chief administrative officer (“CAO”).
In his response, the CAO said that “Vanguard did not deny your request, in whole or part. Vanguard provided responsive disclosures for the last school year for which you were charged (and paid) $48.75. Additionally, you were informed that searching for earlier years would take time and be costly and asked you to confirm whether you wanted Vanguard to conduct those searches. In response, you asked a number of questions but did not state whether you wanted Vanguard to conduct the earlier searches.” Notwithstanding that position, the CAO went on to inform Petitioner that another reasonable search was performed and he was supplementing the response with additional documents.
Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On January 16, 2025, 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 a reasonable search was performed for the records.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “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). In response to a request for public records, “[a] governmental entity shall conduct a reasonable search for a requested record.” Utah Code § 63G-2-201(7)(b). When determining whether the governmental entity possess or maintains the requested records, “the governmental entity must show by a preponderance of the evidence that its search for the requested records was reasonable.” Utah Administrative Rule R35-1-3(1)(a). If the government makes such a showing, the burden then shifts to the requester “who must show by a preponderance of the evidence that the search efforts were not reasonable.” Utah Administrative Rule R35-1-3(1)(b).
Petitioner questions if he isn’t getting the full scope of records that he requested due to a dispute over the fee that he was charged for the records he did receive, or if the records just don’t exist. Respondent claims that during the appeal to the CAO, it performed a search for all responsive records regardless of the year and produced whatever additional responsive records it had.
During the hearing, Respondent testified that the record officer got the disclosure statements for the 2022-23 school year and then notified Petitioner that the records were available for a fee. From there, an additional search for prior years was conducted that consisted of staff searching through all paper records they had stored and then searching Respondent’s Google Drive through all electronic records. The additional search yielded more responsive records dating back to 2019, which were produced and delivered to Petitioner. Respondent has confirmed that through a search of both hard copy records and electronic files all responsive records found have been delivered.
We believe that a thorough search through both the paper and electronic records is sufficiently reasonable. Whether or not requested records exist is not the issue in these types of cases, nor is the issue whether a perfect search was conducted where there is no reasonable doubt that additional records don’t exist. See Trejos v. Weber County, Decision and Order no. 24-55, Utah State Records Committee (July 20, 2024) (“In an appeal concerning the existence of records, the issue is not whether the records exist, nor is it that the governmental entity performed a perfect search.”). Instead, the law requires only that the search was reasonable, and the entity shoulders that burden. Respondent has demonstrated that, although it charged a fee for only the 2022-23 records, it voluntarily performed an additional search and produced additional documents at no charge to Petitioner. In response, Petitioner has offered no evidence to show that searching through the hard copy and Google Drive records was not a reasonable search. Accordingly, we find that Respondent has satisfied its obligations.
ORDER
In accordance with our Decision, Petitioner’s appeal is hereby DENIED
Entered this 28 day of January 2025.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair Pro Tem, Utah State Records Committee
Committee members, Williams, K., chair pro tem, Biehler, E., Peterson, L., Wilde, L., Marshall, J., and Sheeran T., unanimously voted in favor of and joined in this Decision and Order.
enclosed: 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. Utah Code § 63G-2-404(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).
",Denied,2025-01-28T00:00:00Z "BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
LANDON MOORE, Petitioner, v.
UTAH TRANSIT AUTHORITY, Respondent,
DECISION AND ORDER
Case No. 25-09
By this appeal, Landon Moore ("Petitioner"), requests records alleged to be held by Respondent, Utah Transit Authority ("UTA").
FACTS
On March 29, 2024, Petitioner made a request for records pursuant to the Government Records Access and Management Act ("GRAMA") to Utah Transit Authority ("UTA"). Mr. Moore specifically requested:
Video camera footage from both cameras of Red Line car 1166 on March 28, 2024, from 5:20 PM to 5:30 PM.
Mr. Moore subsequently clarified that he was seeking TRAX footage showing "a woman stumble dramatically and almost fall over." It is unknown what Mr. Moore's relationship to the falling woman is. On April 11, 2024, UTA notified Petitioner by email that they located the video matching the information he provided and said:
Portions of the video have been classified as Private, please see Utah Code 63G-2-302(2)(d). As such, we are required to pixelate and alter the voices of individuals we have not received an original notarized release from, see Utah Code 63G-2-202(1)(a)(iv)(B). While you did provide a notarized release because the requested video is not related to a UTA police investigation or a UTA claim, we have been unable to confirm you are a subject of the record. Additionally, if you can confirm you are a subject of the record, we would only be able to provide you with portions of the video that show you. All other passengers on the train would be pixelated, including the falling woman.
On May 8, 2024, Mr. Moore filed an appeal with UTA's Chief Administrative Officer ("CAO") Jay Fox, requesting a copy "without alteration." Mr. Fox upheld the classification of the record on May 28, 2024. Petitioner filed an appeal with the State Records Committee ("Committee"). On January 30, 2025, the Committee held a hearing where the parties were allowed to participate in-person and electronically.
STATEMENT OF REASONS FOR DECISION
The Committee reviews Petitioner's GRAMA request in this case de novo. See Utah Code § 63G-2-403(10)(c)(i). When interpreting a statute, the Committee looks first to the statute's plain language, and presumes that the legislature used each word advisedly and reads each term according to its ordinary and accepted meaning. If the plain meaning of the statute can be discerned from its language, no other interpretive tools are needed. See Boyle v. Christensen, 2011 UT 20, ¶ 27, 251 P.3d 810.
Under GRAMA, a "record" includes a photograph, film, recording, electronic data, or other documentary material regardless of physical form, that is prepared, owned, received, or retained by a governmental entity and is reproducible by photocopy or other mechanical or electronic means. See Utah Code § 63G-2-103(25).
A record is public unless otherwise expressly provided by statute. See Utah Code § 63G-2-201(2). However, records that are private, controlled, or protected, as specified under GRAMA, are not public. See Utah Code § 63G-2-201(3).
In its denial, UTA cited Utah Code §63G-2-302(2)(d) to claim that the requested video camera footage is private, and therefore should not be disclosed. Section 302(2)(d) states that a record is considered "private" if "the disclosure of which constitutes a clearly unwarranted invasion of personal privacy." UTA argues that people riding public transit have an expectation of privacy. The U.S. Supreme Court touched upon the expectation of privacy a person may, or may not, have when traveling in public.
"A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [a party] travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property" U.S. v. Knotts, 460 U.S. 276, 281-82, 103 S.Ct. 1081, 75 L.Ed. 55 (1983).
Based on this, the Committee cannot find that people traveling on public transit, including the UTA Trax Red Line car 1166 on March 28, 2024, from 5:20 PM to 5:30 PM, have a reasonable exception of privacy in their movements from one place to another.
Even if some expectation of privacy exists for public transit passengers, UTA failed to show that the disclosure of which would constitute a clearly unwarranted invasion of personal privacy as required by Section 302(2)(d).
Therefore, given the lack of an expectation of privacy that a person may have while traveling over public streets or in public transit, the Committee concludes that the disclosure of the unaltered video camera footage was not properly classified as private under Section 302(2)(d).
In its brief to the Committee, UTA argued that the record was considered "private" under Utah Code § 63G-2-302(1)(s), which states a record is private if the record contains "electronic toll collection customer account information received or collected under Section 72-6-118 and customer information described in Section 17B-2a-815 received or collected by a public transit district, including contact and payment information and customer travel data." Section 17B-2a-815 states that "personal information received by the district from a customer through any debit, credit, or electronic fare payment process is a private record" including "travel data," which includes "the identity of the purchasing individual."
While UTA recognizes that the security camera footage was not collected through payment information, they nonetheless argue that there is a sufficient "nexus" between the private information in Section 17B-2a-815 and the security camera footage.
The Committee must presume that the legislature used each word advisedly in Sections 63G-2-302(1)(s) and 17B-2a-815. See McKitrick v. Gibson, 2021 UT 48, ¶ 37, 496 P.3d 147 ("we presume, absent a contrary indication, that the legislature used each term advisedly." (citations omitted). Based on the plain language of these provisions, the Committee concludes that they do not apply to security camera footage.
UTA also cited Utah Code § 63G-2-305(12) to argue that the requested video footage is protected and should not be disclosed. Section 305(12) provides that a record is protected if its release "would jeopardize the security of governmental property, governmental programs, or governmental recordkeeping systems from damage, theft, or other appropriation or use contrary to law or public policy."
At the hearing, however, UTA testified that the cameras in question are visible to passengers and capture footage of individuals riding public transit. The video does not depict any secure areas of the transit system. Furthermore, UTA indicated a willingness to release the footage to the Petitioner with pixelation applied to obscure passengers' identities—demonstrating that releasing the footage would not jeopardize the security of UTA's property.
For these reasons, the Committee finds that the record should not have been classified as protected under Section 305(12).
The Committee is also not persuaded by UTA's other reasons it offered during the hearing that were not in the denials or in its briefing.
ORDER
THEREFORE, in accordance with our Decision, Petitioner's appeal is hereby GRANTED. The requested record, the video camera footage from both cameras of Red Line car 1166 on March 28, 2024, from 5:20 PM to 5:30 PM, is not private or protected under GRAMA, and is subject to disclosure. UTA shall provide Petitioner unaltered video camera footage from both cameras of UTA's Red Line car 1166 from March 28, 2024, from 5:20 PM to 5:30 PM.
Entered this 10 day of February 2025.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair Utah State Records Committee
Committee members Ed Biehler, Logan Wilde, Todd Sheeran, and Jeffrey Marshall voted in favor of this Decision and Order.
Committee member Kendra Yates voted in opposition.
Committee members Nova Dubovik, Linda Petersen, and Kenneth Williams were not present.
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).
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
WILLIAM MORRIS, Petitioner, v.
HARRISVILLE CITY, Respondent,
DECISION AND ORDER
Case No. 25-10
By this appeal, William Morris (“Petitioner”), requests records allegedly held by Harrisville City (“the City”) requested pursuant to the Government Records Access and Management Act (“GRAMA”).
FACTS
In February 2024, Mr. Morris made numerous requests to Harrisville City for records, pursuant to GRAMA.
Though the City has already provided numerous records to him, Mr. Morris contends that the City denied thirteen or fourteen of his GRAMA requests. In its response to Mr. Morris, the City listed each request number and responded to each request individually. The allegedly denied requests, and the records requested therein, can be summarized as follows:
The City’s response to each of the foregoing appealed requests falls into one of three categories.
The City’s first responsive category is for requests in response to which the City states that it did not withhold any documents. The City states that it did not deny the requests it placed in this first category and that all documents to these requests have been provided in so far as the City has possession or control of them. The requests that the City claims fall into this first category are, from the above list, requests 3, 5, 8, 19, 20, 28, and 29.
The City’s second responsive category is for requests in response to which the City claimed that the requested records were protected. The reasons for which these records were protected are all attorney or litigation related. The City claims that records responsive to requests that it places in this second category are protected under Utah Code §§ 63G-2-305(17), -305(18), or -305(23), as explained further below. The requests that the City claims fall into this second category are, from the above list, requests 2, 4, 6, 12, 18, and 26.
Subsection 305(17) protects records subject to attorney-client privilege. As it’s relevant to this matter, Rule 504(b) of the Utah Rules of Evidence provides that a client has the privilege to refuse to disclose, and to prevent any other person from disclosing, a communication if (1) the communication was made for the purpose, or in the course of obtaining or facilitating, legal services to the client; and (2) the communication was between the client (or the client’s representative) and the attorney (or the attorney’s representative).
Attorney-client privilege can be waived by a client when a client places the privileged communication “at issue.” Specifically, an attorney-client communication is placed at issue when the client (1) asserts a claim or defense, and (2) attempts to prove that claim or defense by disclosing or describing the attorney-client communication. Only the client may waive the attorney-client privilege – not the attorney.
Subsection 305(18) protects records that are prepared for or by an attorney, consultant, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding.
Subsection 305(35) protects records that concern a governmental entity’s strategy about imminent or pending litigation.
The City’s third, and last, responsive category is for only one request, a request in response to which the City states that the responsive records are private under Utah Code §§ 63G-2-302(1)(b) or -302(2)(d), or protected under Utah Code § 63G-2-305(51), as explained further below. The request that the City claims fall into this third and last category is, from the above list, request 27.
Subsection 302(1)(b) makes private records that contain data on individuals’ medical histories, diagnoses, conditions, treatments, evaluations, or other medical data.
Subsection 302(2)(d) makes private records that contain data on individuals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Subsection 305(51) protects records of an individual’s home address and telephone number, if the individual was required by law to provide such information and has a reasonable expectation that the information would be kept confidential due to the nature of the law.
Mr. Morris did not file an appeal with the Respondent’s Chief Administrative Officer and instead filed an appeal with the State Records Committee (“Committee”). On January 30, 2025, the Committee held a hearing where the parties were allowed to participate in-person and electronically.
Th Committee reviewed the records claimed to be private or protected in camera.
STATEMENT OF REASONS FOR DECISION
The Committee finds that the City performed or is performing a reasonable search, though to-date the City has not found any further responsive records. Notwithstanding the foregoing, the City should continue its efforts to retrieve records from its previous IT provider and to provide Petitioner any newly located responsive records that are not private, protected, or controlled. The finding in this paragraph applies to requests 3, 5, 8, 19, 20, 28, and 29 (requests that the City’s placed in its first responsive category).
Based on the contents of the records that the City claims to be protected under Utah Code §§ 63G-2-305(17), -305(18), or -305(23) (the City’s second responsive category), but that would otherwise be responsive to requests 2, 4, 6, 12, 18, and 26, the Committee finds that the City properly categorized the records as protected.
The Committee finds that these records are subject to attorney-client privilege or are records that are prepared for or by an attorney, consultant, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding.
The Committee is unsure as to whether it is the proper body to decide whether attorney-client privilege has been waived since the waiver of which is found in the Utah Rules of Evidence. As such, the Committee does not incorporate an analysis of such in its decision.
Based on the contents of the records the City claims to be private under Utah Code §§ 63G-2-302(1)(b) or -302(2)(d), or protected under Utah Code § 63G-2-305(51) (the City’s third and last responsive category), but that would otherwise be responsive to request 27, the Committee finds that the City properly categorized the records as private.
The Committee finds that these records contain data the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 10 day of February 2025.
BY THE STATE RECORDS COMMITTEE
Kenneth Williams
Chair Utah State Records Committee
Committee members, Ed Biehler, Logan Wilde, Todd Sheeran, Jeffrey Marshall, and Kendra Yates voted in favor of this Decision