State Records Committee Decision 2015-12

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

HEATHER GARDNER, Petitioner, v.

UTAH STATE OFFICE OF EDUCATION. Respondent.

DECISION AND ORDER

Case No. 15-12

By this appeal, Petitioner, Heather Gardner, seeks access to records allegedly held by Respondent, the Utah State Office of Education ("USOE").

FACTS

On or about February 4, 2015, Ms. Gardner made two separate records requests to the USOE, pursuant to the Government Records Access and Management Act (“GRAMA”). On or about February 18, 2015, the Records Officer for USOE sent an e-mail message to Ms. Gardner stating:

This e-mail will serve as USOE’s official response to each of your GRAMA requests dated Feb. 4, 2015. The responsive e-mails you seek, which are public under GRAMA, will be forwarded in subsequent e-mails. I will follow up with a confirmation e-mail so that you can ensure all the forwarded e-mails have been received.

USOE forwarded e-mails to Ms. Gardner, but did not forward all e-mails responsive to her records request claiming that some of the requested e-mails were non-public records pursuant to GRAMA.

On February 24, 2015, Ms. Gardner filed an appeal with Brad Smith, the State Superintendent of Public Instruction. However, Mr. Smith failed to timely respond to Ms. Gardner’s appeal. On April 10, 2015, Ms. Gardner filed an appeal with the State Records Committee (“Committee”). The executive secretary scheduled Ms. Gardner's appeal for a hearing before the Committee, and the present appeal was brought before the Committee on May 14, 2015. Prior to the presentation of evidence by the parties, counsel for USOE made a motion to dismiss Mr. Gardner's appeal based upon Ms. Gardner allegedly failing to file a timely appeal with the Committee. Both parties were given an opportunity by the Committee to address the merits of the motion to dismiss. After having heard evidence and arguments from both parties, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Any person aggrieved by a governmental entity's access determination under GRAMA may appeal the determination within 30 days to the chief administrative officer of the governmental entity by filing a notice of appeal. Utah Code § 63G-2-401(1)(a) (2014).

2. In cases not involving a claim of extraordinary circumstances, the chief administrative officer shall make a determination on the appeal within five business days after the chief administrative officer's receipt of the notice of appeal. Utah Code § 63G-2-401(5)(a)(i) (2014). If the chief administrative officer fails to make a determination within the required five business days, "the failure shall be considered the equivalent of an order denying the appeal." Utah Code § 63G-2-401(5)(b) (2014).

3. If the chief administrative officer of a governmental entity denies a records request under Utah Code § 63G-2-401, the requester may either: (1) Appeal the denial to the Committee as provided in Utah Code § 63G-2-403; or (2) Petition for judicial review in District Court as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-402(1) (2014).

4. A petitioner may appeal to the Committee by filing a notice of appeal with the executive secretary "no later than" 30 days after the day on which the chief administrative officer of the governmental entity grants or denies the records request in whole or in part "including a denial under Subsection 63G-2-204(8)." Utah Code § 63G-2-403(1)(a) (2014). A "denial under Subsection 63G-2-204(8)" includes when a "governmental entity fails to...issue a denial within the specified time period." Utah Code § 63G-2-204(8) (2014).

5. Based upon the undisputed facts presented at the hearing, Ms. Gardner's appeal to the Committee was not timely filed. The chief administrative officer of USOE received Ms. Gardner's appeal on February 24, 2015, and did not issue a decision regarding her appeal within the specified five business days which concluded on March 3, 2015. The failure of Mr. Smith to issue a decision within the required five business resulted in an effective denial of Ms. Gardner's appeal on March 3, 2015. Ms. Gardner then had 30 days to file her appeal with the Committee. Ms. Gardner's filing of her appeal on April 10, 2015, was outside of the 30 day requirement for filing of appeals pursuant to Utah Code § 63G-2-403(1)(a) (2014). Accordingly, the Committee finds that it does not have jurisdiction to hear the merits of Ms. Gardner's appeal.

ORDER

THEREFORE, IT IS ORDERED THAT Respondent, the Utah State Office of Education's Motion to Dismiss Petitioner's appeal because it was untimely filed, is GRANTED, and Petitioner's appeal is DISMISSED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14) (2015). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a) (2015). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2) (2015). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6) (2015). 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(15)(c) (2015), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i) (2015). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii) (2015).

Entered this 26th day of May, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee