State Records Committee Decision 2015-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

HARSHAD P. DESAI, Petitioner, v.

GARFIELD COUNTY, Respondent.

DECISION AND ORDER

Case No. 15-01

By this appeal, Petitioner, Harshad P. Desai, seeks access to records potentially held by Respondent, Garfield County.

FACTS

In 2013, appraisals were completed on three separate properties owned by the Petitioner. Said appraisals were completed by an independent contractor hired by Garfield County. Pursuant to the Government Records Access and Management Act (“GRAMA”), Petitioner requested records from Respondent relating to the appraisals, the individual appraisers and their credentials to appraise the properties. Respondent notified Petitioner that they do not maintain the records that the Petitioner was seeking including information related to the appraisers and their individual credentials. Given Petitioner’s numerous and redundant GRAMA requests, Respondent did attempt to satisfy Petitioner’s requests and obtained license information related to the appraisers, which was provided to Petitioner. In an email dated December 2, 2014, Petitioner stated that the Respondent was unresponsive to his request and filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on January 8, 2014, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Utah Code § 63G-2-201(8)(a)(i) states:
In response to a request, a governmental entity is not required to:
(i) create a record;
(ii) compile, format, manipulate, package, summarize, or tailor information;
(iii) provide a record in particular format, medium, or program not currently maintained by the governmental entity;
(iv) fulfill a person’s records request if the request unreasonable duplicates prior records requests from that person…”

2. In the present case, counsel for Garfield County stated that the Respondent does not have or maintain the records requested by the Petitioner through GRAMA, and should not be required to “create a record” pursuant to Utah Code § 63G-2-201(8)(a)(i).

3. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that the Respondent is not obligated to “create a record” in response to the Petitioner’s GRAMA request pursuant to Utah Code § 63G-2-201(8)(a)(i). Therefore, Garfield County cannot provide Mr. Desai access to records which the Respondent does not maintain.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Harshad P. Desai, 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 January 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee