State Records Committee Decision 2015-10

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

HARSHAD P. DESAI, Petitioner, v.

PANGUITCH CITY, Respondent.

DECISION AND ORDER

Case No. 15-10

By this appeal, Petitioner, Harshad P. Desai, seeks access to records allegedly held by Respondent, Panguitch City, Utah.

FACTS

On or about December 4, 2014, Mr. Desai made a records request to Panguitch City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Desai requested a 2013 “list of vendors” in relationship to the Panguitch City Balloon Festival as well as minutes from a June 24, 2014, meeting with Cheryl Church, manager of an organization known as Panguitch Main Street Committee (“Main Street).” Mr. Desai later amended his request to include vendors from 2014. Mr. Desai’s initial request was denied on or about December 19, 2014. Mr. Desai made four additional records requests to Panguitch City, providing clarification on his initial request, and a request for the policy description on how vendors are screened, and any records relating to any Panguitch City Council member’s contact with the vendors. Respondent denied the additional requests and indicated that all records relating to the vendors were maintained by “Main Street,” a private non-profit entity.

On or about February 17, 2015, Mr. Desai 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 April 9, 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 Panguitch City does not maintain any records related Mr. Desai’s December 4, 2014, GRAMA request or any records related to the Balloon Festival and the vendors. Counsel for Respondent confirmed that Main Street was the entity that selected and approved the vendors, and controlled all aspects of the vendors as it related to said Festival. Request #1 through Request #5 relate specifically to records that are maintained by Main Street, a non-public entity, and not by Panguitch City.

3. Additionally, Utah Code § 52-4-103(6)(a) defines a “meeting” as:
…the convening of a public body or a specified body, with a quorum present, including a workshop or an executive session, whether in person or by means of electronic communications, for the purpose of discussing, receiving comments from the public about, or acting upon a matter over which the public body or specific body has jurisdiction or advisory power.

4. In the present case, the June 24, 2014, meeting with the Manager, Cheryl Church of Main Street, was not a “meeting” under the Open and Public Meetings Act because it did not involve a quorum of the Panguitch City Council. As such, there was no requirement by Respondent for a recording to be made, minutes taken, or any records maintained relating to the meeting.

5. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Respondent’s denial of Mr. Desai’s records request, including any and all additional clarifications on said request, was appropriate. The Committee is convinced that Respondent does not possess records responsive to Mr. Desai’s records request. Although testimony was provided that some of the requested records may be held by Main Street, 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, 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 April, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson Pro-Tem,
State Records Committee