State Records Committee Appeal 2015-29

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SCOTT GOLLAHER, Petitioner, v.

MORGAN COUNTY ATTORNEY’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 15-29

By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, the Morgan County Attorney’s Office.

FACTS

On or about July 8, 2015, Mr. Gollaher made a records request to the Morgan County Attorney’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested “…the record or receipt by the Morgan County Attorney’s Office of the 5 colored photos emailed” that were sent to Mr. Gollaher on March 29, 2015, at 3:10 p.m. in relationship to the search warrant executed at a specific address on or about July 13, 2012. In addition, Mr. Gollaher requested receipt and/or record of the October 11, 2013, Children’s Justice Center interview on DVD that was sent to Mr. Gollaher on May 6, 2015, via postal mail by Morgan County Attorney’s Office. Mr. Gollaher's request was received by Respondent on or about July 20, 2015, and on the same day, Respondent notified Mr. Gollaher that no responsive records were available.
On or about July 20, 2015, Mr. Gollaher responded to Respondent's response, and on September 3, 2015, Mr. Gollaher 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 November 12, 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, via letter, that the Morgan County Attorney’s Office is not in possession of any record that is responsive to Mr. Gollaher’s July 8, 2015, GRAMA request.

3. Accordingly, after reviewing the arguments submitted by the parties, hearing oral argument and the testimony of Mr. Gollaher, and based upon the evidence that was presented, the Committee finds insufficient evidence to show that Respondent possesses the records responsive to Mr. Gollaher’s July 8, 2015, GRAMA request. However, it should be noted that Respondent’s failure to appear before the Committee to answer questions from the Committee made this determination very difficult, and Respondent is encouraged to appear before the Committee in the future.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher, 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 23rd day of November, 2015.
BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee