State Records Committee Appeal Decision 2014-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CATHY JOHNSON, Petitioner, v.

UTAH LIEUTENANT GOVERNOR’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 14-11

By this appeal, Petitioner, Cathy Johnson, seeks a copy of a notary log from Respondent, the Utah Lieutenant Governor’s Office.

FACTS

On February 18, 2014, Ms. Johnson submitted a notary complaint to the Utah Lieutenant Governor’s Office regarding Margaret Hawkins. In her complaint, Ms. Johnson sought help in receiving an unredacted copy of Ms. Hawkins’ notary log to support her allegation that Ms. Hawkins improperly notarized signatures for Ms. Johnson’s mother. On May 6, 2014, Spencer Hadley, the Office Administrator for the Utah Lieutenant Governor’s Office, responded to Ms. Johnson’s complaint stating that his office did not find any impropriety regarding the notarization. Respondent also denied Ms. Johnson’s request for help in obtaining the notary log stating that “GRAMA laws do not apply to the notary journal, and no state agency can retain the journal by law.” Mr. Hadley stated that his office does not possess nor maintain the subject record requested, nor does his office have any ability to obtain the subject record because it was in the exclusive custody of Ms. Hawkins.

On May 14, 2014, Ms. Johnson filed an appeal arguing that Utah Code §§ 46-1-13 and -15 require a notary to maintain a journal for lawful inspection. On May 22, 2014, Utah Lieutenant Governor Spencer Cox responded to Ms. Johnson’s appeal affirming the previous decision. Lt. Gov. Cox found that the Government Records Access and Management Act (“GRAMA”) does not apply to the notary journal and Utah Code §§ 46-1-13 and -15 do not give his office the authority to assume the notary’s role in responding to her request for the record. Accordingly, he informed her that his office could “take no further action to help you secure the record you seek.”

On May 27, 2014, Ms. Johnson 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 July 10, 2014, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

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

2. According to the Utah Notaries Public Reform Act, a notary “may keep, maintain, and protect as a public record, and provide for lawful inspection a chronological, permanently bound official journal of notarial acts…” Utah Code § 43-1-13. If a notary maintains a journal, the notary shall “safeguard the journal and all other notarial records as valuable public documents” and “keep the journal in the exclusive custody of the notary.” Utah Code § 43-1-15.

3. Counsel for Respondent argued that the Utah Lieutenant Governor’s Office does not possess the subject record, and that pursuant to the notary statute, it may not request access to the notary journal because the journal is “in the exclusive custody of the notary.”

4. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, the Committee finds that Respondent does not possess nor maintain the requested record. As such, the Respondent cannot produce a record it does not possess or maintain. Additionally pursuant to Utah Code § 43-1-15, Respondent does not have the authority to require transfer of the requested record to Respondent because the record is under the exclusive custody of Ms. Hawkins.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Cathy Johnson, 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 18th day of July 2014.

BY THE STATE RECORDS COMMITTEE

_____________________________
LEX HEMPHILL, Chairperson
State Records Committee