State Records Committee Decision 2015-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

THOMAS DUDLEY BECK, Petitioner, v.

BLUFF WATER WORKS SPECIAL SERVICE DISTRICT, Respondent.

DECISION AND ORDER

Case No. 15-11

By this appeal, Petitioner, Thomas Dudley Beck, seeks access to records allegedly held by Respondent, Bluff Water Works Special Service District (“BWWSSD”).

FACTS

On or about November 19, 2014, Mr. Beck made a records request to Bluff Water Works Special Service District ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Beck requested water usage data from 2007 through 2014 provided by Respondent. Mr. Beck stated in his letter that he had “attached 8 blanks for each calendar year since 2007-2014” and requested that Respondent “[c]omplete and return the 8 water use data forms” to him.

Mr. Beck’s request was denied in a letter from Walter J. Bird, Deputy San Juan County Attorney, representing BWWSSD, that was dated December 2, 2014. Mr. Bird stated in the letter that the records requested “are not maintained by the BWWSSD” and therefore, Respondent was not required to create a record responsive to his request. In another letter dated December 19, 2014, Mr. Bird again restated the denial of Mr. Beck’s GRAMA request and notified Mr. Beck of his right to file an appeal.

On or about December 22, 2014, Mr. Beck filed a Notice of Appeal to San Juan County’s Records Officer, Norman Johnson. In a letter dated December 29, 2014, Mr. Johnson denied Mr. Beck’s appeal stating that he did “not see a reason to overturn the denial so stated by Mr. Bird in his letter dated December 19, 2014, and believe his statements as to the rule of law in this matter are correct.”

On or about January 13, 2015, Mr. Beck filed a Notice of Appeal to the San Juan County Commission. In a letter dated February 2, 2015, Kelly Pehrson, San Juan County Administrator, notified Mr. Beck that his records request “does not involve a request or denial of records controlled by San Juan County” and was not, therefore, subject to the San Juan County GRAMA Ordinance 1992-2 which provides an appeal right for a GRAMA request denied by the county.

On or about March 4, 2015, Mr. Beck 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). However, every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours. Utah Code § 63G-2-201(1).

2. In the present case, Mr. Beck stated that he was not concerned about the specific format of the data. Mr. Beck stated that he simply wanted the water usage data by Respondent during the requested period of time.

3. Counsel for Respondent stated that the water system in Bluff, Utah, is controlled and managed by Respondent which was created as a special service district in 2005 by the voters/property owners in Bluff to manage the system. Counsel argued that the Respondent did not maintain the records in the requested format Mr. Beck had requested, and as such, Respondent was not required to create records under Utah Code § 63G-2-201(8)(a)(iii). Counsel for Respondent further clarified that the records were available, but they would be in a broader format than what was being requested by Mr. Beck.

4. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that although Respondent does not have a document that is responsive to Mr. Beck’s request, it does have a database that contains the public water usage data that is responsive to Mr. Beck’s request which is in a broader format than what was originally requested by Mr. Beck. GRAMA does not restrict the public from being able to access public information that is in database.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Thomas Dudley Beck, is GRANTED.

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

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DAVID FLEMING, Chairperson Pro-Tem,
State Records Committee