State Records Committee Appeal 2008-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARIAN OLSON, Petitioner, vs.

OFFICE OF THE ATTORNEY GENERAL, Respondent.

DECISION AND ORDER

Case No. 08-15

By this appeal, Marion Olson seeks access to records from the Office of the Attorney General (“AG’s Office”). Ms. Olson requested records pertaining to a review by the AG’s Office of decisions made by the Cache County Attorney’s Office regarding a protective order.

FACTS

In July 2007, Ms. Olson asked the AG’s Office to investigate the decision of the Cache County Attorney’s Office to not prosecute a possible violation of a protective order and failure to renew the protective order. On May 26, 2008, Ms. Olson made a records request from the AG’s Office for a “copy of all files pertaining to the investigation, all notes, phones (sic) calls, the discussion with the sheriff’s office and county attorney and the names of the panel of investigators.” In a letter dated June 12, 2008, the AG’s Office denied Ms. Olson’s request stating that “there are no records which correspond to your request, other than the documents which you previously provided to this Office.” Ms. Olson appealed this denial to Mark L. Shurtleff, Utah Attorney General. In a letter dated June 19, 2008, Ms. Olson’s appeal was denied, with the basis being that “there are no records which correspond to your request.”

Ms. Olson appealed the denial by the AG’s Office to the State Records Committee (“Committee”). The AG’s Office filed a Motion to Dismiss the appeal arguing that “the records sought by [Ms. Olson] do not exist, and [the AG’s Office] is not required to create such records in response to her request.” Prior to hearing the merits of the case, the Committee allowed each party the opportunity to address the Motion to Dismiss. Having reviewed the materials submitted by the parties and having heard oral argument and testimony on August 14, 2008, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303 and -304.

2. The AG’s Office denied Ms. Olson the records she requested on the grounds that no records existed which were responsive to her request.

3. Assistant Attorney General, Patrick Nolan, testified that issues regarding decisions made by County Attorney’s and prosecuting agencies are reviewed with an “abuse of discretion” standard. Mr. Nolan testified that the office’s standard protocol is to review police reports, discuss issues with qualified prosecutors, and then determine whether or not the County Attorney or prosecuting agency abused its discretion. Mr. Nolan further testified if the initial review of the file by the AG’s Office fails to show evidence of an abuse of discretion, further investigation and/or action is not taken and no records are created.

4. Mr. Nolan testified that a review of Ms. Olson’s case failed to show sufficient evidence of an abuse of discretion by the Cache County Attorney’s Office to warrant further investigation. Therefore, since further investigation was not taken, no records were created.

5. The Committee, having heard argument from both parties finds Mr. Nolan’s testimony to be persuasive. Since the AG’s Office did not create any records, the Committee finds that the AG’s Office does not have any records that are responsive to Ms. Olson’s request. Because no records exist and a governmental entity is not required to create a record for a GRAMA request pursuant to Utah Code Ann § 63G-2-201(8)(a)(i), Ms. Olson’s request for records cannot be granted.

ORDER

THEREFORE, IT IS ORDERED THAT the Motion to Dismiss filed by the AG’s Office is sustained pursuant to Utah Code Ann § 63G-2-201(8)(a)(i), § 63G-2-502(1)(c), and Utah Admin. Code R. 35-2-2(b).

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. § 63G-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. § 63G-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: (1) a notice of compliance with the records committee upon production of the records; or (2) 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: (1) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) 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 21st day of August, 2008.

BY THE STATE RECORDS COMMITTEE

____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee