State Records Committee Decision 2015-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

HARSHAD P. DESAI, Petitioner, v.

UTAH STATE TAX COMMISSION, Respondent.

DECISION AND ORDER

Case No. 15-02

By this appeal, Petitioner, Harshad P. Desai, seeks access to records potentially held by Respondent, Utah State Tax Commission.

FACTS

In September 16-20, 2013, appraisals were completed on three separate commercial properties owned by the Petitioner. Said appraisals were completed by State employees on behalf of the Utah State Tax Commission, hired by Garfield County to complete the appraisals. On or about November 19, 2014, pursuant to the Government Records Access and Management Act (“GRAMA”), Petitioner requested records from Respondent relating to the individual appraisers, licensing and the appraisers credentials to appraise the properties. Respondent prepared documents that they had, or were able to reasonably obtain, that they believed were responsive to the Petitioner’s GRAMA request, and provided such documents. Additionally, the Respondent contacted the Utah Department of Commerce (“Commerce”) to obtain any additional information that they may have to summarize and identify the licensees of the State for Real Estate matters. Such information was sent by Commerce to the Petitioner on or about January 2, 2014. Counsel for the Respondent also noted that the Respondent does not keep records on the licensing and how Garfield County fairly assessed the properties, as the appraisals were completed as an oversight. The Petitioner noted that he received a copy of the appraisal, but it lacked the information that he was seeking.

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, there has been extensive communications with the Petitioner; however, the Petitioner has been unclear as to what specific information is being requested and the multiple and possibly redundant requests have been convoluted.

3. The Utah State Tax Commission acted in good faith in obtaining and providing what information that they could as they believed was relevant to the November 19, 2014 GRAMA request, but simply did not provide the Petitioner a statement of their finding. The Utah State Tax Commission did go above and beyond in providing the licensing and appraisal information, which was not included as part of the November 19, 2014 GRAMA request.

4. Counsel for the Utah State Tax Commission stated that the Respondent does not have the information they believe is being requested as part of the November 19, 2014 GRAMA request, as such, the Utah State Tax Commission should not be required to “create a record” pursuant to Utah Code § 63G-2-201(8)(a)(i).

5. 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, the Utah State Tax Commission cannot provide Mr. Desai access to records which the Respondent does not have.

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