State Records Committee Appeal Decision 2016-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PATRICK SULLIVAN, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 16-01

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

FACTS

On June 26, 2015, and on July 20, 2015, Mr. Sullivan made requests for records to the Utah Attorney General’s Office ("AG’s Office"), pursuant to the Government Records Access and Management Act (“GRAMA”). Due to the AG’s Office receiving a large number of GRAMA requests, several extensions to the response deadlines were given for Mr. Sullivan’s requests. Mr. Sullivan filed an appeal with the State Records Committee (“Committee”) raising the issue of the delays being “unreasonable” as his initial requests were sent June 26, 2015, and July 20, 2015. After the appeal had been filed, on January 5, 2016, the AG’s Office mailed Mr. Sullivan its completed response to both of his GRAMA requests. The Committee having reviewed the arguments submitted by the parties, and having heard oral argument and testimony on January 14, 2016, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Generally, GRAMA specifies that after receiving a request for a record, a governmental entity shall “as soon as reasonably possible, but no later than 10 business days after receiving a written request” approve or deny the records request. Utah Code § 63G-2-204(3)(b). Utah Code § 63G-2-204(5) details what can constitute “extraordinary circumstances” that allows a governmental entity to delay approval or denial for an additional period of time if it cannot respond within the time limits provided in -203(3). If the governmental entity fails to provide the requested records or issue a denial “within the specified time period,” that failure is considered the equivalent of a determination denying access to the record. Utah Code § 63G-2-204(8).

2. 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: (1) The governmental entity sends a notice of denial, or (2) The record request is considered denied under Utah Code § 63G-2-204(8). See, Utah Code § 63G-2-401(1). A requester may then appeal the decision of the chief administrative officer of the governmental entity by appealing to the Committee or petitioning for judicial review in district court. Utah Code § 63G-2-402(1)(a).

3. In the present case, counsel for the AG’s Office stated that the AG’s Office mailed a completed initial response to both of Mr. Sullivan’s records requests on January 5, 2016, and Mr. Sullivan had not yet filed an appeal with the chief administrative officer. Mr. Sullivan argued that these delays by the AG’s Office were “unreasonable,” and that the AG’s Office delayed response should be considered to be a denial of access.

4. Although the AG’s Office’s responses to Mr. Sullivan’s records requests were clearly outside of the statutory limits established in Utah Code § 63G-2-204, Mr. Sullivan has not file an appeal with the chief administrative officer pursuant to Utah Code § 63G-2-401(1), and instead filed an appeal directly to the Committee.

5. After hearing arguments from the parties, the Committee finds that issues related to the AG’s Office’s initial denial of access to the records, including whether the AG’s Office properly searched “Google Vault” for records, is not yet properly before the Committee. Mr. Sullivan must first file an appeal with the chief administrative officer of the AG’s Office before appealing the matter to the Committee. See, Utah Code § 63G-2

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, 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 26th day of January, 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee