State Records Committee Appeal Decision 2014-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COREY VONBERG, Petitioner, vs.

IRON COUNTY ATTORNEY’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 14-06

By this appeal, Petitioner, Corey Vonberg, seeks access to records allegedly held by Respondent, the Iron County Attorney’s Office.

FACTS

In a letter dated November 17, 2013, Mr. Vonberg made a request with Respondent for motions “filed in the Courts by this office in which Shawn R. Keith [Case No. 025501031] is identified as a confidential informant.” In a letter dated December 4, 2013, G. Michael Edwards, Deputy Iron County Attorney stated that Respondent “does not possess any such record, nor am I aware of any government agency/department that does.”

Mr. Vonberg filed an appeal with the Iron County Commission arguing that Respondent possesses a record responsive to his request as evidenced by a court docket entry from the Utah Fifth District Court case, State v. Keith, Case No. 025501031. David Miller, Iron County Commission Chairman, denied Mr. Vonberg’s request in a letter dated January 10, 2014, stating that Respondent “indicates they have no such record, and there is nothing to suggest they do.” Mr. Miller further stated that Mr. Vonberg should seek a copy of the court filing from the Court. However on January 16, 2014, Respondent supplemented its response to Mr. Vonberg by providing him a copy of the first page of a “Stipulated Motion to Amended Order of Probation and Stay of Commitment and Order” (“Stipulated Motion”) filed with Fifth District Court on January 23, 2003 in the State v. Keith case. Before the hearing, Mr. Vonberg was provided with the complete three page motion.

Mr. Vonberg filed an appeal with the State Records Committee (“Committee”) pursuant to Utah Code § 63G-2-403(1). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on March 19, 2014, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 and 63G-2-204. Utah Code § 63G-2-201(1).

2. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).

3. Respondent stated that the only record responsive to Mr. Vonberg’s request was the first page of the Stipulated Motion filed in the State v. Keith case, and that this document had already been provided to Mr. Vonberg on January 16, 2014. Respondent claimed that since the State v. Keith case was a Class B Misdemeanor case occurring over ten years ago, the case file was disposed of pursuant to their retention schedule and therefore, no other documents responsive to Mr. Vonberg’s request are in Respondent’s possession.

4. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, the Committee concludes that other than what has already been provided, Respondent does not possess a record responsive to Mr. Vonberg’s records request and therefore, Respondent cannot be required to provide a record to Mr. Vonberg that it does not possess.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Corey Vonberg 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 § 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 § 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 28th day of March 2014.

BY THE STATE RECORDS COMMITTEE

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LEX HEMPHILL, Chairperson
State Records Committee