State Records Committee Appeal Decision 2009-04

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARVIN MELVILLE, Petitioner, vs.

SALT LAKE CITY CORPORATION, Respondent.

DECISION AND ORDER

Case No. 09-04

By this appeal, Marvin Melville “Melville” seeks access to notes, drafts or similar materials prepared by Jeff Niermeyer concerning an affidavit dated and executed by Mr. Niermeyer, an employee of Salt Lake City Corporation on May 22, 2008.

FACTS

On June 10 5, 2008, Melville made a request of the Salt Lake City Public Utilities Department pursuant to the Government Records Access and Management Act. Mr. Melville requested, among other things the notes, produced by Jeff Niermeyer in conjunction with an affidavit drafted by Attorney Richards, Counsel for Alta City. On June 25, 2008, Salt Lake City responded and provided Melville with the records responsive to his request. In its response, the City also indicated it did not have in its possession any draft or similar documents related to Niemeyer’s May 22, 2008 affidavit.

Subsequently, on July 23, 2008, the City notified Melville by letter that certain “draft” notes produced by Mr. Niermeyer had been located, however, such documents were being withheld by the City pursuant to Utah Code Ann. § 63G-2-305(22). Melville appealed the City’s response and a hearing was held on September 10, 2008, whereon the Appeals Board upheld the City’s earlier denial.

In a letter dated September 16, 2008, Christine Meeker, SLC Recorder, indicated that: (1) The Appeals Board lacked authority to compel the City to provide a description of the methods used to locate documents; (2) “That it was the decision of the Board that the City’s response regarding draft documents responsive to Mr. Melville’s document requests was adequate under GRAMA § 63G-2-302(22);” and (3) The Board ordered the City to again search its records for documents responsive to Melville’s request and to provide a description and justification for any documents found, but withheld from Melville.

On October, 8, 2008, the City provided additional records to Melville and identified and/or provided legal justification for redacted materials. On October 14, 2008, Melville appealed SLC’s denial of “draft notes” produced by Jeff Niermeyer to the State Records Committee (“Committee”). Having reviewed the materials submitted by the parties and having heard oral argument and testimony on April 9, 2009, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “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. Records which are temporary drafts or similar material prepared for the originator’s personal use or prepared by the originator for the personal use of an individual for whom the originator is working are not records as defined by GRAMA. See, Utah Code Ann. § 63G-2-103(22)(b)(ii).

3. Drafts, unless otherwise classified as public are protected records, if properly classified by the governmental entity. See Utah Code Ann. § 63G-2-305-(22).

4. After hearing arguments from both parties and reviewing the records/draft notes in camera, the Committee finds that the document prepared by Jeff Niermeyer in association with an affidavit executed May 22, 2008, were temporary drafts or similar material generated for Mr. Niermeyer’s personal use. The notes are not records as defined by GRAMA pursuant to Utah Code Ann. § 63G-2-103(22)(b)(ii). The committee is not convinced and no evidence was presented that the personal notes generated by Mr. Niermeyer were circulated to anyone other than a governmental entity.

ORDER

THEREFORE, IT IS ORDERED THAT the determination of the Salt Lake City Corporation is upheld pursuant to Utah Code Ann. § 63G-2-103(22)(b)(ii), and the appeal of Marvin Melville is denied.

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 16th day of April, 2009.

BY THE STATE RECORDS COMMITTEE

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SCOTT WHITTAKER, Chairperson
State Records Committee