State Records Committee Appeal 04-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

VICTOR ORVIS, Petitioner, vs.

PLEASANT GROVE CITY, Respondent.

DECISION AND ORDER

Case No. 04-06

By this appeal, Victor Orvis seeks access to "all lists created by [Pleasant Grove] City personnel involving all businesses or persons who were mailed or otherwise received [Carol Emery's July 19, 2001] letter regarding business license enforcement . . . ." Mr. Orvis specifically requested that the response include the "often-referenced list of 300 businesses [and] persons and the list of 85 who were purported to be non-responsive." The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on June 17, 2004, 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). "Record" does not mean temporary drafts or similar materials prepared for the originators personal use or prepared by the originator for the personal use of an individual for whom he is working. Utah Code Ann. 63-2-103(19)(b)(i). Furthermore, a government entity has no duty to "create a record in response to a request." Utah Code Ann. 63-2-201(8).

2. As noted above, Mr. Orvis requested certain lists that he believes were created by the City for business licensing enforcement. The City responded that after a diligent search, it provided all responsive documents in its possession, except for a document containing approximately 300 names and addresses that it asserted was classified as private under Utah Code Ann. 63-2-302(2)(b) and -(d).

3. At the hearing, the Committee heard evidence that Mr. Orvis had obtained a list of names from the State Tax Commission that included the list of approximately 300 names being withheld by the City. The Tax Commissions list excluded information that is not public, such as financial information and tax identification numbers. That document did include, however, the names and addresses of businesses who held a state tax number, but were not licensed to do business in the City.

4. Based on documents filed in a separate lawsuit, Pleasant Grove Business Licensing Official Carol Emery confirmed that the list Mr. Orvis obtained appeared to include all of the businesses and persons in the document the City was withholding. As a result of the Tax Commissions disclosure, and in the interest of consistency, the City agreed to provide Mr. Orvis the document created from the list of names sent to it by the State Tax Commission.

5. Pleasant Grove City correctly denied Mr. Orvis request regarding other lists that he believes are in the City's possession. Based on the testimony of Ms. Emery, the Committee is persuaded that the City does not have any other records within the scope of Mr. Orvis' request in its possession. Specifically, the Committee finds that the undated document entitled BUSINESS LICENSE MAILING FROM STATE SALES TAX DISTRIBUTION LIST was an ad hoc summary report created from records previously identified by the City. According to Ms. Emery, no additional records or lists, beyond those noted above, were created to prepare this document.

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 June, 2004.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chairperson
State Records Committee