State Records Committee Appeal Decision 2009-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

REBECCA HAYNES, Petitioner, vs.

DIXIE DEER, SPECIAL SERVICE DISTRICT, Respondent.

DECISION AND ORDER

Case No. 09-16

By this appeal, Petitioner, Rebecca Haynes, seeks a copy of a grant/loan application by Respondent, the Dixie Deer Special Service District (“DDSSD”) to the United States Department of Agriculture’s Rural Development office.

FACTS

On or about August 12, 2009 and August 25, 2009, Ms. Haynes submitted a request to DDSSD for the following records: (1) “The monthly financial balance sheet for each month from May 2008 to and including July 2009”; (2) “The DDSSD monthly/annual revenue projections, and all other financial documents that were submitted to Sunrise Engineering”; (3) “All financial documents that were included in the loan and grant applications submitted to the Division of Drinking Water, and to the Utah USDA Rural Development”; and (4) “Original rough draft minutes of the DDSSD meeting held on August 13, 2009.”

DDSSD responded to Ms. Haynes’ request by providing financial records responsive to her request, but asked her for a clarification concerning her request for revenue projections. Afterwards, DDSSD provided additional records responsive to her request. However, Ms. Haynes believed that she had been denied access to a copy of DDSSD’s grant/loan application. Ms. Haynes now appeals to the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on October 8, 2009, now issues the following Decision and Order.

STATEMENT OF REASONSE 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. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with reasonable specificity. Utah Code Ann. § 63G-2-204(1)(b). As soon as reasonably possible, the governmental entity shall respond to the request by: (1) Approving the request and providing the record; (2) Denying the request; (3) Notifying the requester that the it does not maintain the record and provide if known, the name and address of the governmental entity that does maintain the record; or (4) Notifying the requester that because of extraordinary circumstances, it cannot immediately approve or deny the request. Utah Code Ann. § 63G-2-204(3)(a).

3. Counsel for DDSSD asserted during the hearing that DDSSD had already provided Ms. Haynes all documents responsive to her request because Ms. Haynes never made a written request for the grant/loan application submitted to the United States Department of Agriculture’s Rural Development office. Counsel also indicated that DDSSD failed to retain a copy of the grant/loan application and therefore, could not provide Ms. Haynes a record it did not possess.

4. Ms. Haynes testified that she believed that DDSSD should have kept copies of the grant/loan applications and that through her GRAMA request; she was entitled to a copy of it. In response, counsel for DDSSD indicated that DDSSD was attempting to obtain a copy of the grant/loan application and that it would be provided to Ms. Haynes upon submission of a written request for the record.

5. After reviewing Ms. Haynes’ written GRAMA requests and hearing the arguments and testimony of the parties, the Committee is convinced that DDSSD provided Ms. Haynes the records that were responsive to her written request. Ms. Haynes specifically requested “All financial documents that were included in the [L]oan and [G]rant [A]pplications submitted to the Division of Drinking Water and to the Utah USDA Rural Development” (emphasis added). However, Ms. Haynes never made a written request for the loan/grant application itself. We also note that pursuant to Utah Code Ann. § 63G-2-502(1)(b) and § 63A-12-103, the Committee encourages all governmental entities to comply with statutory requirements by establishing and maintaining an active, continuing program for the economical and efficient management of records including scheduling, disposal and access to records.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Rebecca Haynes is denied because the Dixie Deer Special Services District has already provided all records responsive to her written GRAMA requests.

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 governmental 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 Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental 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.

Dated this 15th day of October 2009.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee