State Records Committee Appeal Decision 2009-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

TINA WOLLENBERGER, Petitioner, vs.

SUMMIT COUNTY, Respondent.

DECISION AND ORDER CONTINUING HEARING

Case No. 09-02

FACTS

On November 6, 2008, Petitioner Tina Wollenberger filed an appeal with the Utah State Records Committee (“Committee”) pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Ms. Wollenberger requested release of interviews of her minor son with the Summit County Sheriff’s Office. The matter was scheduled for a hearing on December 11, 2008, but was continued upon Ms. Wollenberger’s request. A second hearing was scheduled for January 8, 2009, but it was again continued upon Ms. Wollenberger’s request.

A third hearing was scheduled for February 12, 2009. However, Scott T. Poston, counsel for Ms. Wollenberger, requested a third continuance by e-mail to the Committee’s Executive Secretary sent at 7:15 P.M. on February 11, 2009. Mr. Poston stated that he had “tried to fax you but I don’t know if it went through.” Attached to the e-mail was a letter dated February 10, 2009, signed by Mr. Poston asking to “postpone the hearing until April 2009, due to scheduling difficulties and possibilities of satisfying the appeal with Summit County prior to the hearing.” Having reviewed the materials submitted by Ms. Wollenberger and her legal counsel, the Committee issues the following Order:

STATEMENT OF REASONS FOR ORDER

1. Utah Code Ann. § 63G-2-403(4)(a) requires the Executive Secretary of the Committee to “schedule a hearing for the records committee to discuss the appeal at the next regularly scheduled committee meeting.”

2. The Executive Secretary of the Committee may decline to schedule a hearing if the record series that is the subject of the appeal has been found by the Committee in a previous hearing involving the same governmental entity to be appropriately classified as private, controlled, or protected. Utah Code Ann. § 63G-2-403(4)(b)(i).

3. If the Chair of the Committee determines that sufficient evidence has not been provided to show that a record exists, the Chair shall direct the Executive Secretary of the Committee to not schedule a hearing. Utah Admin. Code R.35-2-2(b).

4. If a petitioner wishes to postpone a hearing, the petitioner shall notify the Committee and the government entity in writing no later than two days prior to the scheduled hearing date. Utah Admin. Code R.35-1-2(13). “Failure to comply with this provision may result in a Committee order requiring that the petitioner pay the government entity’s reasonable costs and expenses.” Id.

5. The Committee finds that Ms. Wollenberger failed to comply with the requirement of Utah Admin. Code R.35-1-2(13) by failing to inform the Committee and Summit County in writing “no later than two days prior to the scheduled hearing date.”

ORDER

THEREFORE, IT IS ORDERED THAT the hearing of Tina Wollenberger’s appeal be continued until the Utah State Records Committee hearing to be held on April 9, 2009. However, considering the fact that this is the third continuance request by Ms. Wollenberger, no further requests for continuances will be granted. Additionally, because of Ms. Wollenberger’s failure to comply with Utah Admin. Code R.35-1-2(13), Summit County is hereby given the option of submitting to the Committee for consideration any “reasonable costs and expenses” incurred as the result of Ms. Wollenberger’s failure to comply with Utah Code Admin. Code R.35-1-2(13).

Entered this 19th day of February 2009.

BY THE STATE RECORDS COMMITTEE

____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee