State Records Committee Decision 2015-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SCOTT GOLLAHER, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE CRIMINAL DIVISION Respondent.

DECISION AND ORDER

Case No. 15-06

By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office, Criminal Division.

FACTS

In a letter dated October 2, 2014, Mr. Gollaher made a records request to the Utah Attorney General’s Office, Criminal Division ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested “any and all records received from the Salt Lake Police Department, police, staff or agency" relating to himself, with specific focus on "all video, photos, records and recordings taken by Detective Suzanne Williams" executed on or about July 13, 2012 at a specific address relating to a police investigation. In a letter dated October 28, 2014, Mr. Gollaher was notified that the response deadline was being extended as authorized by Utah Code §§ 63G-2-204(5)(d) and -204(6)(c) until November 5, 2014. Additionally, Mr. Gollaher was notified that his request was not sufficiently specific and was asked to further clarify his request. In a letter dated November 12, 2014, Mr. Gollaher was notified that his request was being denied due to his lack of a timely response to clarify his GRAMA request.

On or about November 16, 2014, Mr. Gollaher notified Respondent that he had provided a clarification of his GRAMA request by November 5, 2014, and included as an attachment, a copy of his letter sent via facsimile on or about November 5, 2014. In a letter dated November 17, 2014, Mr. Gollaher was notified that the facsimile number on the letterhead had been assigned to a different division within the Attorney General's Office, and therefore had not been delivered to Respondent. However, in light of Mr. Gollaher's amendments to the description of the requested records, the matter was reopened and his request would be processed by Respondent.

In a letter dated December 10, 2014, Mr. Gollaher was notified that Respondent had not been able to locate any records responsive to his request. On or about December 21, 2014, Mr. Gollaher 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 March 19, 2015, 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). Additionally, the Committee cannot order a governmental entity to disclose a record that it does not possess. See, Utah Code § 63G-2-403(12) & Utah Admin. Code R. 35-2-2(2).

2. In the present case, counsel for Respondent presented evidence and testimony during the hearing, that after a thorough review of their records, Respondent does not have any records responsive to Mr. Gollaher’s October 2, 2014 GRAMA request.

3. The Committee finds Respondent's claim that it does not possess any responsive records to Mr. Gollaher's request persuasive. Since Respondent does not possess the requested records, Respondent's decision to deny Mr. Gollaher's records request was appropriate.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher, 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 30th day of March, 2015.

BY THE STATE RECORDS COMMITTEE

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PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee