State Records Committee Appeal 2014-17

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SCOTT GOLLAHER, Petitioner, v.

MORGAN COUNTY, Respondent.

DECISION AND ORDER

Case No. 14-17

By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, Morgan County.

FACTS

Mr. Gollaher made a records request to Morgan County pursuant to the Government Records Access and Management Act (“GRAMA”), for copies of any subpoenas served on a police detective in two criminal cases where Mr. Gollaher is the Defendant. In a hearing held by the State Records Committee (“Committee”) on November 13, 2014, Morgan County Attorney, Jann Farris, represented to the Committee that Morgan County had one copy of a returned subpoena that had been used for both of Defendant’s criminal cases, and that a copy of the subpoena had already been provided to Mr. Gollaher. Mr. Farris further stated that the subpoena was originally created by a computer program, and he did not know if the database used by the computer program also had “metadata” (electronically stored information) including the date when the subpoena was created. Mr. Gollaher acknowledged that Morgan County had provided him with copies of other records; the subpoena was the remaining issue.

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. A “Record” means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics: (1) That is prepared, owned, received or retained by a governmental entity or political subdivision; and (2) Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a).

4. In the present case, counsel for Morgan County did not know whether the database used to generate the subpoena related to Mr. Gollaher’s criminal cases contained electronic metadata related to the subpoena that was reproducible. Counsel further stated that Morgan County would not oppose an order requiring a search of the database to determine if the database contained reproducible information related to Mr. Gollaher’s records request.

5. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that sufficient evidence was produced to show that Morgan County’s subpoena database may contain information responsive to Mr. Gollaher’s records request.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher, is GRANTED, and Respondent, Morgan County, is ordered to search the relevant database which created the subject subpoena, and provide any documents that can be reproduced that are relevant to Mr. Gollaher’s records request.

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 24th day of November 2014.

BY THE STATE RECORDS COMMITTEE

____________________________________
PATRICIA SMITH-MANSFIELD,
Chairperson, State Records Committee