State Records Committee Appeal Decision 2015-28

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL AMANN, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 15-28

By this appeal, Petitioner, Paul Amann, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.

FACTS

On April 22, 2015, Mr. Amann filed a records request pursuant to the Government Records Access and Management Act (“GRAMA”) with the Utah Attorney General’s Office (“AG’s Office”). Mr. Amann made eighteen requests which were numbered 1 through 18. Based upon denials from the AG’s Office, Mr. Amann filed an appeal with the State Records Committee (“Committee”). The parties submitted documents and arguments to the Committee regarding this matter, and a hearing was held by the Committee on October 8, 2015, where oral argument was presented by the parties. The only requests being considered by the Committee are Mr. Amann’s requests numbered #1, #10, #11, #12, and #18. Based upon all evidence presented to the Committee, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. A requester or interested party may appeal an access denial to the chief administrative officer of the governmental entity by filing a notice of appeal with the chief administrative officer within 30 days after the governmental entity sends a notice of denial or the record request is considered denied pursuant to Utah Code § 63G-2-204(8). Utah Code § 63G-2-401(1)(a).

2. Regarding Record Request #1, counsel for the AG’s Office stated that the final response to Record Request #1 was provided by the AG’s Office to Mr. Amann on May 22, 2015. Included in the final response was language concerning Mr. Amann’s right to appeal the decision to the chief administrative officer of the AG’s Office “within 30 days of the date of this response.” The AG’s Office stated that Mr. Amann did not file an appeal for Record Request #1 until July 4, 2015, which was received by the AG’s Office on July 6, 2015. The AG’s Office argued that since Mr. Amann did not file a timely appeal within 30 days as required by Utah Code § 63G-2-401(1), his appeal before the Committee was procedurally defective and should not be considered by the Committee. The Committee finds the AG’s Office’s arguments persuasive and holds that Record Request #1 is not properly before the Committee because of Mr. Amann’s failure to comply with the requirements of Utah Code § 63G-2-401(1).

3. Regarding Record Request #10, the AG’s Office argued that when Mr. Amann filed his appeal in July 2015, he did not file an appeal for Record Request #10. A review of the July 2015 appeal shows that Mr. Amann stated that his appeal was for “in particular, my Requests Nos. 1 through 9 and 11 through 18.” Accordingly, the Committee finds that for Record Request #10, Mr. Amann failed to exhaust his administrative remedies as provided for in GRAMA, and failed to file a timely appeal pursuant to Utah Code § 63G-2-401(1).

4. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are properly classified as “private,” “protected,” or “controlled” are not public records. See, Utah Code §§ 63G-2-201(3)(a), -302, -303, -304 and -305.

5. Utah Code § 63G-2-302(2)(a) states that if properly classified by a governmental entity, records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, but not including records that are public under -301(2)(b) or -301(3)(o), or private records under -301(1)(b), are considered “private” records.

6. Mr. Amann’s Record Request #11 was for any and all communications regarding the hiring of the attorney who replaced Mr. Amann at the AG’s Office as assigned legal counsel to the Utah Division of Securities. Record Request #12 was for any and all documentation of the AG’s Office “following policy 2.2 regarding the hiring of” the replacement attorney.

7. After having reviewed the records responsive to Record Requests #11 and #12 in camera, the Committee finds that the records are private records pursuant to Utah Code § 63G-2-302(2)(a) because they involve current or former employees of the AG’s Office, and are not considered public records under -301(2)(b) or -301(3)(o).

8. Mr. Amann’s Record Request #18 was for any documentation regarding decisions made by the AG’s Office concerning two employees who according to Mr. Amann, maintained “their supervisor pay, though they are no longer supervisors.” After having reviewed the records responsive to this request in camera, the Committee finds that the records are private records pursuant to Utah Code § 63G-2-302(2)(a) because they involve current or former employees of the AG’s Office, and are not considered public records under -301(2)(b) or -301(3)(o).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is DENIED.

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 20th day of October 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee