State Records Committee Decision 2014-10

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COREY VONBERG, Petitioner, v.

IRON COUNTY ATTORNEY’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 14-10

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 February 10, 2014, Mr. Vonberg made a request with Respondent for a record identifying the date Respondent disposed of its case file for State v. Keith, Case No. 025501031, Fifth District Court, Iron County, State of Utah. In a letter dated February 28, 2014, G. Michael Edwards, Deputy Iron County Attorney, denied Mr. Vonberg’s records request stating that he was “unable to find any record identifying the date the file for Case Number 025501031 was disposed of.”

Mr. Vonberg filed an appeal to the Iron County Commission on March 9, 2014. He argued that without a record proving that Respondent disposed of the case file, the case file therefore must still be within their possession. In a letter dated March 26, 2014 addressed to Mr. Vonberg, the Iron County Commission (“Commission”) upheld the previous decision, finding that the Respondent “indicates they do not have the record you are seeking” and “[y]ou have not provided any evidence that they do.” The letter further stated that the Commission “could find no violation of applicable statutes and regulations.”

On April 24, 2014, 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 June 12, 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-2-201(1), 63G-2-203 and 63G-2-204.

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 argued that a search of its records did not disclose: (1) A copy of the criminal file; or (2) A record stating the date the criminal file was destroyed. Respondent presented evidence that it follows the State’s General Retention Schedule, which only requires misdemeanor files to be retained for 7 years. Because the records sought by Mr. Vonberg relate to a misdemeanor file originating in 2002, Respondent claimed that these records would have been routinely disposed of previously pursuant to the retention schedule.

4. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, the Committee finds that Respondent does not possess a record identifying the date Respondent disposed of the case file for State v. Keith, Case No. 025501031. Accordingly, Respondent cannot be ordered to provide a record 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 20th day of June 2014.

BY THE STATE RECORDS COMMITTEE

_____________________________
LEX HEMPHILL, Chairperson
State Records Committee