State Records Committee Appeal 2015-30

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NESTOR GALLO, Petitioner, v.

PROVO CITY HOUSING AUTHORITY. Respondent.

DECISION AND ORDER

Case No. 15-30

By this appeal, Petitioner, Nestor Gallo seeks access to records allegedly held by Respondent, the Provo City Housing Authority.

FACTS

On or about July 13, 2015, Mr. Gallo made three records requests to the Provo City Housing Authority ("Respondent"), pursuant to the Government Records Access and Management Act ("GRAMA"). First, Mr. Gallo requested a "[s]taff report or documentation related to the [i]ncrease of the Executive Director Compensation reviewed and approved by the Provo City Housing Authority Board [i]n the PCHA public meeting dated Wednesday December 17 2014 … plus the audio files." Second, Mr. Gallo requested for the "Saint Francis Apartment project: Copies of the bid schedule including unit prices, quantity take offs and general contractor's contact information…[as well as] [c]opies of all the change orders including unit prices…." He also requested for the "Ekin Project: a) Copy of the project bid schedule with unit quantity take offs from all the contractors b) Contractors' name and contact information. Finally, Mr. Gallo requested a copy of the section of the PCHA code stating that the location of a net play pen is a violation to some form of code, and copy of the audio files from February 25, 2015 PCHA Board public meeting."

Respondent provided copies of some of the requested records. Among the records not provided were the Saint Francis Apartment Project records, and on or about August 20, 2015, Mr. Gallo filed an appeal of denial with Jeremy Runia, Respondent's Executive Director. On September 8, 2015, Mr. Runia stated that "[t]he recommendation from legal counsel in the financial information requested is a Protected Record per the Government Records [Access] And Management Act 63G-2-305(4)." Mr. Runia further stated that PCHA does not have records that specifically document the executive director’s pay increase. Neither does PCHA have records on a policy that mentions a net playpen or a specific document containing a financial analysis, which was used as a basis for reducing benefits.

On September 9, 2015, Mr. Gallo 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. The Government Records Access and Management Act ("GRAMA") specifies that "all records are public unless otherwise expressly provided by statute." Utah Code § 63G-2-201(2). Records that are private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).

2. GRAMA defines a "record" as a "book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics: (i) that is prepared, owned, received, or retained by a governmental entity or political subdivision…" Utah Code § 63G-2-103(22)(a).

3. A governmental entity may classify commercial information or non-individual financial information obtained from a person as a protected record if the person submitting the information provides the governmental entity with the information specified in Utah Code § 63G-2-309. Utah Code § 63G-2-305(2)(c). A person who provides to a governmental entity a record that the person believes should be protected pursuant to Utah Code § 63G-2-305(2) "shall provide with the record" a written claim of business confidentiality and a concise statement of reasons supporting the claim of business confidentiality. Utah Code § 63G-2-309(1)(a)(i), emphasis added. See also, Fife v. City of Orem, Utah 4th Dist. Ct. Case No. 140400007, (Oct. 22, 2014).

4. Respondent argues that the disputed records were properly classified as "protected" records pursuant to Utah Code Utah Code § 63G-2-305(2). However, Respondent noted that the record, at the time of the receipt, no confidentiality claim was filed with Respondent. Respondent's understanding was that the records were originally prepared by and submitted to the Saint Francis Apartment Project, for which Respondent only had a 1% ownership. The remaining 99% of the ownership is held by the Saint Francis Apartment Project, which believes that the records should be protected and not released, and that the Respondent does not have the authority to release the record. Respondent contends that because the records are created for the Saint Francis Project, LLC, they are not subject to public disclosure.

5. In the present case, Mr. Gallo stated the Respondent satisfactorily answered his questions about all other requests during the hearing with the exception of the Saint Francis Apartment Project. He only seeks the information for records that pertain to the Saint Francis Apartment Project.

6. The Committee, after reviewing the arguments submitted by the parties, hearing oral argument and the testimony, and based upon the evidence that was presented, finds that pursuant to Utah Code § 63G-2-103(22)(a)(i), the disputed records are considered governmental "records" under GRAMA because Respondent received and retained them.. Since a claim of confidentiality was not provided "with the record" at the time they were received by Respondent, the records cannot be considered protected records under Utah Code § 63G-2-305(2). Accordingly, the records are considered public governmental records and Mr. Gallo is entitled to receive a copy of said records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nestor Gallo, is GRANTED.

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