State Records Committee Appeal 04-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARK C. HAIK, Petitioner,
vs.
TOWN OF ALTA, Respondent.

DECISION AND ORDER

Case No. 04-15

Mark C. Haik petitions the Committee for an order imposing sanctions against the Town of Alta for failing to comply with its order in Case No. 04-11. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on November 18, 2004, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (GRAMA) provides that the Committee may impose a penalty for failing to comply with an order. Utah Code Ann. 63-2-403(14) states:
(a) Each government entity 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.
(b) (i) If the government entity fails to file a notice of compliance or a notice of intent to appeal, the records committee may do either or both of the following:
(A) impose a civil penalty of up to $500 for each day of continuing noncompliance; . . . .
(ii) In imposing a civil penalty, the records committee shall consider 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. 63-2-403(14). Paragraph 4 of our previous order required that "the Town respond in accordance with Utah Code Ann. 63-2-204." Specifically, the Town was to "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."

2. The Committee finds that the Town's October 27, 2004 response, enclosing an unsent letter dated October 13, 2004, fails to comply with the order, particularly Utah Code Ann. 63-2-204(5)(c)(iii). Specifically, the Town's response to Request Nos. 1 and 2 indicated that locating certain records would take approximately five (5) hours of research. This belated response indicated that the staff would undertake a "comprehensive review" of its records upon further approval of Mr. Haik. The Committee believes that the timing and nature of this response does not comply with the referenced section of GRAMA or the Committee's previous order.

ORDER

THEREFORE, IT IS ORDERED THAT the petitioner's request for sanctions is granted. In lieu of a $500 a day fine authorized by by Utah Code Ann. 63-2-403(14), the Committee orders that the Town waive any charges associated with reviewing its records to identify documents responsive to Mr. Haik's first two requests - (1) "All requests from the Town of Alta to Salt Lake Valley Health for permits for construction of contained septic systems;" and (2) "Any permits for contained septic systems in the Town of Alta issued by Salt Lake Valley Health." See Utah Code Ann. 63-2-203(2)(b) and (5)(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 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 23rd day of November, 2004.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chair
State Records Committee