State Records Committee Appeal Decision 2015-24

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL CLÁRA, Petitioner, v.

SALT LAKE CITY SCHOOL DISTRICT, Respondent.

DECISION AND ORDER

Case No. 15-24

By this appeal, Petitioner, Michael Clára, seeks access to records allegedly held by Respondent, Salt Lake City School District.

FACTS

On or about April 29, 2015, Mr. Clára submitted a records request to the Salt Lake City School District ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Clára requested information in reference to the deployment of Salt Lake City Police Department personnel at the Salt Lake City Board of Education meetings. On May 12, 2015, Ms. Kindl, Director of Policy & Legal Services for Respondent, denied Mr. Clára’s request on the basis of attorney/client privilege, and cited Utah Code Ann. §63G-2-305(17). On May 14, 2015, Mr. Clára submitted an appeal stating that as a member of the Board of Education, “I am entitled by law to inspect the record.” On May 26, 2015, the Respondent denied the appeal stating, “[Mr. Clára has] provided no statutory or legal reference to support [the] claim.” On June 8, 2015, Mr. Clára filed an appeal with the State Records Committee (“Committee”) concerning denial of his request. After further review by Respondent, it was found that attorney/client privilege did not apply in this matter, and on August 7, 2015, Mr. Clára was provided a copy of the document that had previously been withheld.

The Committee having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, on August 13, 2015, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303, -304 and -305.

2. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with reasonable specificity. Utah Code Ann. § 63G-2-204(1)(b). As soon as reasonably possible, the governmental entity shall respond to the request by: (1) Approving the request and providing the record; (2) Denying the request; (3) Notifying the requester that it does not maintain the record and provide, if known, the name and address of the governmental entity that does maintain the record; or (4) Notifying the requester that because of extraordinary circumstances, it cannot immediately approve or deny the request. Utah Code Ann. § 63G-2-204(3)(a).

3. Respondent asserted during the hearing that all documents responsive to Mr. Clára’s requests had already been produced. Respondent further claimed that the entirety of record was comprised of a single page. Therefore, despite Mr. Clára’s insistence that there is a different record responsive to his request, Respondent could not provide Mr. Clára a record it did not possess.

4. Mr. Clára disagreed with Respondent’s claims and contended that Respondent still possessed records responsive to his request.

5. After hearing the arguments and testimony of the parties, the Committee finds that Respondent provided all the records it possessed responsive to Mr. Clára’s April 2015 GRAMA request. The Committee is not persuaded that Respondent possesses additional documents and/or has purposely withheld documents from Mr. Clára. Accordingly, the Committee cannot order Respondent to produce documents it does not possess. See, Utah Code Ann. § 63G-2-403(12).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Clára, is DISMISSED because: (1) The Salt Lake City School District has already provided Mr. Clára with a copy of the requested records, and (2) Mr. Clára has not presented sufficient evidence to show that further records still exist and are being withheld by Respondent.

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). 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). 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). 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). 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), 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). 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).

Entered this 24th day of August, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee