State Records Committee Appeal Decision 2009-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NICHOLE COOMBS, Petitioner, vs.

MONTICELLO CHARTER SCHOOL, Respondent.

DECISION AND ORDER

Case No. 09-05

By this appeal, Petitioner Nichole Coombs (“Coombs”) seeks access to the following records: (1) A copy of a “third party report” referenced in an executive/closed meeting of Respondent Monticello Charter School Board (“Monticello”) held on February 11, 2009; and (2) “all invoices and check stubs for legal services between January 1, 2008 and February 28, 2009 and names of those paid including how much they were paid.”

FACTS

On or about February 17, 2009, Coombs requested the following records from Monticello pursuant to the Government Records Access and Management Act: (1) A copy of the recording of the November 6, 2008 Monticello board meeting; (2) A copy of a report given at the February 11, 2009 Monticello board meeting; and (3) Copies of all invoices and check stubs for legal services performed between January 1, 2008, and February 28, 2009. Monticello Records Officer Kelli Sellers provided Coombs with the recording of the November 6, 2008 board meeting. However, Sellers denied the request for the February 11, 2009 report claiming that Monticello did not have in its possession a responsive written report and that no such record existed. Sellers also denied Coombs’ request for invoices and check stubs claiming that the records were protected because they contained attorney’s work product and privileged communication between Monticello and its attorneys pursuant to Utah Code Ann § 63G-2-305(17) and (18).

In a letter dated March 3, 2009, Coombs appealed Monticello’s denial of her records requests to Michael Smith, Chairman, Board of Trustees for Monticello. In her appeal, Coombs stated that she did not oppose Monticello redacting the name of the attorney providing services and any protected information from the records. Smith denied Coombs’ appeal in a letter reiterating the same reasons given in Monticello’s initial denial.

In a letter dated March 23, 2009, Coombs appealed Monticello’s denial to the State Records Committee (“Committee”). Prior to the Committee’s hearing, Monticello provided Coombs and the Committee with materials responsive to Coombs’ appeal, including copies of redacted invoices, bills and canceled checks between January 1, 2008, and February 28, 2009. At the hearing, the two issues that were argued by the parties before the Committee were: (1) Whether Monticello has a duty to disclose the third party report given during the executive/closed meeting of Monticello held on February 11, 2009; and (2) Whether Monticello disclosed all copies of invoices, check stubs for legal services performed between January 1, 2008, and February 28, 2009. Having reviewed the materials submitted by the parties and having heard oral argument and testimony on May 14, 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, -304, and -305.

2. In response to a GRAMA request, a governmental entity is not required to create a record or provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code Ann. § 63G-2-201(8)(a).

3. During the hearing, Smith testified that no written record exists responsive to Coombs request for the “third party report” referenced in Monticello’s February 11, 2009 executive/closed meeting. Smith stated that the report was an oral report given by an attorney hired by Monticello and that due to cost concerns, no decision had been made as to whether a written report would be produced in the future. Therefore, based upon Smith’s testimony and pursuant to Utah Code Ann. § 63G-2-201(8)(a), the Committee finds that Monticello is not required to produce a written report because no such record exists.

4. However, Smith further stated that the executive/closed meeting was recorded consistent with the requirements of the Open Public Meetings Act. A record includes a recording that is prepared, owned, received, or retained by a governmental entity or political subdivision and all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code Ann. § 63G-2-103(22)(a).

5. After hearing testimony from the parties, the Committee is convinced that a record responsive to Coombs’ request for the “third party report” does exist in the form of the recording of the oral report taken at the February 11, 2009 executive/closed meeting. However, pursuant to Utah Code Ann. § 63G-2-305(32), transcripts, minutes, or reports of the closed portion of a meeting of a public body are protected records if properly classified by a governmental entity as provided by Utah Code Ann. § 52-4-206 of the Open and Public Meetings Act. Accordingly, the Committee finds that the recording of the closed meeting is a protected record and the Committee does not have jurisdiction to disclose the recording of a closed meeting pursuant to the statutory requirements of the Open and Public Meetings Act. See, Utah Code Ann. §§ 52-4-206(5) and -305.

6. Concerning whether Monticello disclosed all copies of invoices, check stubs for legal services performed between January 1, 2008, and February 28, 2009, Smith testified that a search responsive to Coombs’ request had been conducted and that to the best of his knowledge, all copies of the records had been provided to her after having been properly redacted.

7. Coombs acknowledged that she had received copies of invoices, check stubs for legal services performed between January 1, 2008, and February 28, 2009, but contended that documents/records responsive to her request may still exist which were not included in the records released by Monticello. Coombs also testified that if more documents were found, she would not oppose Monticello redacting private information from the records.

8. After hearing arguments from both parties and reviewing the records provided by Monticello, the Committee is not convinced that the records provided by Monticello represent a complete response to Coombs’ request. Therefore, the Committee finds there is a reasonable possibility that all records responsive to Coombs’ request have not been provided by Monticello.

9. During the hearing, the parties stipulated that certain information contained in the bills, invoices and cancelled checks may be redacted. The parties also stipulated that the date, amount paid or charged, and the name of the firm providing the legal services should not be redacted. Therefore, the Committee does not need to address the issue as to whether the information is protected pursuant to Utah Code Ann. § 63G-2-305(17) and (18).

ORDER

THEREFORE, IT IS ORDERED THAT the determination of Monticello Charter School to deny access to the recording of the “third party report” is upheld pursuant to Utah Code Ann. § 63G-2-305(32), and the appeal of Nichole Coombs as to this request is denied. Concerning Coombs’ request for all invoices and check stubs for legal services between January 1, 2008, and February 28, 2009, and names of those paid including how much they were paid, the Committee finds records may be missing from Monticello’s response and orders Monticello to within thirty (30) days review its records and provide Nichole Coombs with any bills, invoices, cancelled checks or any other record responsive to her request for legal services performed between January 1, 2008, and February 28, 2009. Additionally, pursuant to the agreement between the parties, Monticello may redact information from these records except for the date, amount paid or charged, and the name of the firm providing legal services.

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 20th day of May, 2009.

BY THE STATE RECORDS COMMITTEE

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Patricia Smith-Mansfield, Acting Chair
State Records Committee