State Records Committee Appeal 2014-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JULIE HOLBROOK, Petitioner, v.

SOUTH JORDAN CITY COUNCIL, Respondent.

DECISION AND ORDER

Case No. 14-16

By this appeal, Petitioner, Julie Holbrook, seeks access to a record held by Respondent, the South Jordan City Council.

FACTS

On July 1, 2014, the South Jordan City Council (“Council”) held a public city council meeting. The meeting notes indicate that South Jordan City’s (“City”) Finance Director stated during the meeting that the City had engaged external auditors to review the cash basis statement for “Mulligans Golf and Games,” a golf course and recreational activities center owned by the City. The Finance Director stated that he had forwarded a copy of the auditor’s draft report to the Council, and the City had not yet signed an engagement letter with the Council. One of the auditors stated to the Council that some “field work” had been done to prepare the draft report, but it was still incomplete.

The Council ultimately decided to pay for the draft audit report that had been completed, but not retain the auditors for further work on their audit.

On July 3, 2014, Ms. Holbrook made a records request to the Council pursuant to the Government Records Access and Management Act (“GRAMA”). In her request, she sought to receive a copy of the engagement letter and the draft audit report discussed at the July 1, 2014 Council meeting. In response to her request, the Deputy City Recorder stated in a letter dated July 8, 2014, that the “engagement letter and the draft report are drafts and therefore not records” under GRAMA.

On July 28, 2014, Ms. Holbrook filed an appeal with the City regarding the Deputy City Recorder’s decision denying her request for a copy of the engagement letter and the draft audit report. In a letter dated August 4, 2014, the City Manager upheld the prior decision finding that under GRAMA, the documents were not considered governmental records pursuant to Utah Code § 63G-2-103(22)(b)(ii), and that even if they were considered governmental records, they were protected records pursuant to Utah Code § 63G-2-305(22) because they were drafts.
Ms. Holbrook filed an appeal with the State Records Committee (“Committee”) pursuant to Utah Code § 63G-2-403(1) arguing that the draft audit report should be released to her. The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on October 9, 2014, and having reviewed the subject document in camera, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Prior to hearing arguments from the parties concerning the Council’s classification of the subject records, the Committee heard arguments regarding the Council’s motion to dismiss Ms. Holbrook’s appeal based upon her failure to comply with the requirements of Utah Code § 63G-2-403(3)(a) to “on the day on which the petitioner files an appeal to the records committee, serve a copy of the appeal on the government entity.”

2. Counsel for the Council argued that this requirement was jurisdictional, and Ms. Holbrook’s failure to serve a copy of the appeal on the City “on the day” which she filed an appeal with the Committee, required the Committee to dismiss Ms. Holbrook’s appeal. Counsel stated that although Ms. Holbrook did not serve a copy “on the day” she filed her appeal, she subsequently served the Council with a copy of her appeal, and there was no prejudicial effect from her untimely service.

3. While this Committee has held previously that GRAMA requires a petitioner, including an aggrieved person, is required to file their appeal with the executive secretary of the Committee “no later than” thirty days after the day on which the chief administrative officer of the governmental entity grants or denies the record request pursuant to Utah Code § 63G-2-403(1), the Committee has not previously found that failure to serve a copy of the appeal on the governmental entity “on the day which the petitioner files an appeal to the records committee” automatically divests the Committee of jurisdiction to consider the Petitioner’s appeal. Accordingly, the Committee finds that Utah Code § 63G-2-403(3) is not a jurisdictional reason or issue in the present case requiring the Committee to dismiss Ms. Holbrook’s appeal, and the Council’s motion to dismiss the appeal is overruled.

4. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

5. Drafts are protected records if properly classified by a governmental entity “unless otherwise classified as public.” Utah Code § 63G-2-305(22). Drafts that are circulated to anyone other than a governmental entity or a political subdivision, are normally public. Utah Code § 63G-2-301(3)(j). Similarly, drafts that have never been finalized but were relied upon by the governmental entity in carrying out action or policy, are also normally public. Utah Code § 63G-2-301(3)(k).

6. The Council argued that the draft audit report was never circulated to anyone other than a governmental entity, was never finalized, or relied upon by the City in carrying out any action or policy. The Council contended that the “City Council members did not vote on the draft audit report, rather they discussed costs of completing the draft audit report, discussed the engagement letter, discussed if completing the report would create additional confusion, and then decided to pay for any work the consultant had already done and not proceed with retaining the auditor from further work.”

7. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, and reviewing the draft auditor report in camera, the Committee finds that the subject record is a draft as defined by Utah Code § 63G-2-305(22), and is not subject to disclosure pursuant to Utah Code § 63G-2-301(j) or (k). The Committee finds the Council’s argument persuasive that the draft audit report was not circulated outside of the governmental entity, was never finalized, and was never relied upon by the Council in carrying out action or policy. Accordingly, the Council properly classified the draft audit report as a non-public protected record.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Julie Holbrook, 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 15th day of October 2014.

BY THE STATE RECORDS COMMITTEE

_____________________________
LEX HEMPHILL, Chairperson
State Records Committee