State Records Committee Decision 2015-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SCOTT GOLLAHER, Petitioner, v.

MORGAN COUNTY ATTORNEY’S OFFICE Respondent.

DECISION AND ORDER

Case No. 15-08

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

FACTS

On or about October 17, 2014, Mr. Gollaher made a records request to the Morgan County Attorney’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested “all photos, video, records created by Weber County Sheriff’s Office" in relationship to the search warrant executed at a specific address on or about July 13, 2012. Mr. Gollaher's request was received by Respondent on or about November 12, 2014. On or about November 18, 2014, Respondent provided Mr. Gollaher all records the office believed were responsive to Mr. Gollaher’s records request.

On or about December 17, 2014, Mr. Gollaher appealed Respondent's response. In a letter dated January 14, 2015, Logan Wilde, Morgan City Council Chairman, denied Mr. Gollaher’s appeal on the basis that “[a]ll records have been provided.”

On or about January 28, 2015, 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). The governmental entity is also not required to provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(a)(iii). 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 indicated that the Morgan County Attorney’s Office has provided all responsive records they currently have regarding Mr. Gollaher’s October 17, 2014, GRAMA request in whatever format they possessed the record.

3. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Respondent has been responsive to Mr. Gollaher’s records request, including any metadata within digital records. Although testimony was provided that some of the requested records may be held by another governmental entity, the Committee cannot order Respondent to obtain records that are not "prepared, owned, received, or retained by" Respondent. See, Utah Code § 63G-2-103(22)(a)(i).

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

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee