State Records Committee Appeal 03-05

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