State Records Committee Appeal 05-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BARBARA WELLS, Petitioner/Appellant,
vs.
PLEASANT GROVE CITY, Respondent/Appellee.

DECISION AND ORDERCase No. 05-05

By this appeal, Barbara Wells seeks an order of the Committee requiring that Pleasant Grove City provide her with various records set forth in her October 8, 2004 government records request, all of which relate to a citation she received for allegedly electioneering within 150 feet of a polling place. The case resulting from that citation is still pending. The specific records she requested are set forth in her 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 of the parties on March 10, 2005, 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). Records classified as "protected" are not public. Utah Code Ann. 63-2-201(3). "Transcripts, minutes, or reports of the closed portion of a meeting of a public body" are protected records under Utah law. Utah Code Ann. 63-2-304(32). Government entities "may not dislcose a record that is . . . protected to any person except as provided in Subsection 5(b), Section 63-2-202, 63-2-206, or 63-2-302.5." Utah Code Ann. 63-2-201(5). There is no argument here that any provision other than Section 63-2-202 applies to this case.

2. Utah Code Ann. 63-2-202 states in relevant part:
Upon request, a governmental entity shall disclose a protected record to:
(a) the person who submitted the record;
(b) any other individual who:
(i) has a power of attorney from all persons, governmental entities, or political subdivisions whose interests were sought to be protected by the protected classification; or
(ii) submits a notarized release from all persons, governmental entities, or political subdivisions whose interests were sought to be protected by the protected classification or from their legal representatives dated no more than 90 days prior to the date the request is made;
(c) any person to whom the record must be provided pursuant to a court order as provided in Subsection (7) or a legislative subpoena as provided in Title 36, Chapter 14; or
(d) the owner of a mobile home park, subject to the conditions of Subsection 41-1a-116(5).
Utah Code Ann. 63-2-202(4) (West 2004). In this case, Ms. Wells is not a person authorized under this section to receive a protected record because she did not submit the record, has no power of attorney, notarized release, court order or legislative subpoena and does not otherwise qualify under Subsection (d).

3. The Committee concludes that the records that the City does have, namely the Executive Session minutes of November 5, 2003, are properly classified as protected. Ms. Wells requested access to several other categories of records allegedly held by the Pleasant Grove Police Department. After considering the evidence, the Committee is persuaded that none of the other records requested by Ms. Wells exist. As the petitioner, Ms. Wells had a responsibility to introduce sufficient proof to rebut the City's claim as to the lack of records responsive to her request. The evidence she has provided does not meet that standard. Therefore, we deny her appeal.

ORDER

WHEREFORE, IT IS ORDERED THAT the appeal of Ms. Wells is denied for the reasons 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 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 15th day of March, 2005.

BY THE STATE RECORDS COMMITTEE

Linda Thatcher, Acting Chairperson
State Records Committee