State Records Committee Appeal Hearing 2007-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARVIN MELVILLE, Petitioner, vs.

TOWN OF ALTA, Respondent.

DECISION AND ORDER

Case No. 07-06

By this appeal, Marvin Melville seeks access to records from the Town of Alta. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on May 31, 2007, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

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). Records that are not public are designated as either "private," "protected," or "controlled." See Utah Code Ann. 63-2-302, -303 and -304. The Department denied Mr. Melville a portion of the records he seeks on the grounds that the records are drafts, personal notes, and/or attorney/client privileged materials.

The Committee is persuaded that the Town of Alta has failed to properly classify, identify and/or produce the records requested by Melville or in the alternative provide notice to Melville including a description of the records or portion of records exempt from disclosure and citations as to authority for denial per Utah Code Ann. 63-2-204 and 205.

The Town of Alta has therefore, failed to show the records sought by Melville are properly classified as "protected" under Utah Code Ann. 63-2-304(16), (17), (18) or (22). The Town of Alta has further failed to show the documents sought by Melville are not records per Utah Code Ann. 63-2-103-(22)(ii) and (ix).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Marvin Melville is affirmed in part as it relates to 205. The Town of Alta is hereby directed per Utah Code Ann. 63-2-204 and 205 to within ten (10) days of receipt of this Order, identify and produce to the Committee for in camera review all documents and/or records, to the extent that there are documents or records that may be responsive to the eleven (11) separate requests made by Mr. Melville on March 1, 2007. Said documents or records must be classified, and the Town of Alta shall identify any withheld documents with reasonable specificity and provide citation authority to GRAMA as to reasons for withholding or denying any records to Mr. Melville. The identification and reasons for withholding or denying the records shall be provided to Mr. Melville and to the State Records Committee. The Town of Alta and Mr. Melville shall appear before the State Records committee on July 26, 2007 at 11:00 a.m. for further proceedings. The Town of Alta shall bring the disputed records to the proceedings to allow for in camera review pursuant to Utah Code Ann. 63-2-403(9)(a).

The fees assessed to Mr. Melville shall be stricken for lack of an ordinance or formal written policy by the Town of Alta establishing fees per Utah Code Ann. 63-2-203(3)(c).

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)(d), the government entity herein shall comply with the order of the 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 Committee may do either or both of the following: (a) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (b) send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies entities.

Entered this 7th day of June 2007.

BY THE STATE RECORDS COMMITTEE

Carl Albrect, Chairperson
State Records Committee