State Records Committee Appeal 04-17

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JOSEPH STEED, Appellant,
vs.
DUCHESNE COUNTY, Appellee.

DECISION AND ORDER

Case No. 04-17

By this appeal, Joseph Steed seeks access to various documents he believes are in Duchesne County's possession. The records he wants are described in his September 10, 2004 request, which is attached hereto as Exhibit A. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on December 13, 2004, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. A threshold matter before us is whether this Committee has jurisdiction to hear this appeal. Duchense County attempted to exercise its authority under Utah Code Ann. 63-2-701 by adopting an ordinance "applicable throughout its jurisdiction relating to information practices including . . . appeals" from determinations of access to its records. This ordinance would direct appeals to district court, bypassing the State Records Committee. It is undisputed that the County failed to file that ordinance with state archives, as required by Utah Code Ann. 63-2-701(1)(e) and (7). The Committee finds that the County's failure to comply with the requirements of Section 701 renders the ordinance inapplicable to this appeal. We conclude that the provisions for appeal in GRAMA apply, and therefore there is jurisdiction to address the substantive issue set forth below.

2. The Appellant herein, Joseph Steed, is an officer of Highland Development, Inc. ("Highland") and Duchesne Land, L.C. ("Duchesne Land"). Highland Development, Duchesne Land, Mr. Steed's wife, Joan Steed, and Frank J. Steed filed a federal district court lawsuit against Duchesne County and various officials in June 2003. See Highland Development, Inc., et al, v. Duschesne County, et al., Case No. 2:03CV00750TC (D. Utah 2003). The parties subsequently initiated discovery pursuant to the Federal Rules of Civil Procedure. Duchesne County filed a Motion for Partial Judgment on the Pleadings. The County also filed a Motion to Stay Discovery pending resolution of the Motion for Partial Judgment on the Pleadings. Magistrate Judge Samuel Alba granted the Motion to Stay on August 31, 2004. Shortly after the court granted the stay, Highland Development and Joseph Steed submitted a GRAMA request for the same records subject to the Stay Order.

3. On September 23, 2004, Duchesne County Attorney Karen Allen denied the request, relying on Utah Code Ann. 63-2-201(6)(a). More specifically, the county took the position that access to the requested records was subject to the Federal Rules of Civil Procedure and the Discovery Stay Order, by operation of state law.

4. On October 29, 2004, Judge Tena Campbell denied the County's Motion for Partial Judgment on the Pleadings and lifted the stay of discovery. Duchense County arranged for Highland Development's attorneys to inspect some, but not all, of the voluminous amounts of public records requested. To date, Duchesne County has not described, even in general terms, the records it intends to withhold as private and/or protected.

5. 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 provides that "[t]he disclosure of records to which access is governed or limited pursuant to court rule . . . is governed by the specific provisions of that . . . . rule . . . ." Utah Code Ann. 63-2-201(6); see also Utah Code Ann. 63-2-201(3)(b) (addressing records to which access is "restricted" pursuant to court rule).

6. The Committee concludes that the right to access public government records is not lost, and may not be impaired, when a citizen files a lawsuit against the government entity that maintains those records. Where a court order is in place regarding the specific documents requested, the terms of that court order shall govern disclosure. See Utah Code Ann. 63-2-202(7) and -207.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal is granted as set forth above. Duchesne County must: (1) respond to the September 10, 2004 GRAMA request in accordance with Utah Code Ann. 63-2-204, granting access to the records it conceded at the hearing as being public (Exhibit A, 1-5, 9-10 and12-15); and (2) describe the records it claims are private and protected in accordance with Utah Code Ann. 63-2-205(2).

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 15th day of December, 2004.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chairperson
State Records Committee