State Records Committee Appeal 2016-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JORDANELLE SPECIAL SERVICES DISTRICT (JSSD), Petitioner, v.

OFFICE OF THE UTAH STATE AUDITOR, Respondent.

DECISION AND ORDER

Case No. 16-02

By this appeal, Petitioner, Jordanelle Special Services District (“JSSD”), seeks access to records allegedly held by Respondent, Office of the Utah State Auditor.

FACTS

On June 8, 2015, Petitioner, Jordanelle Special Services District (“JSSD”) requested records from the Office of the Utah State Auditor (“Respondent”), pursuant to the Government Records Access and Management Act (“GRAMA”), for “[a]ll documents and other records, including all communications between the Office … and any other person, that relate to the ‘Standstill Agreement.’” The GRAMA request additionally asked for “[a]ll documents and other records, including all communications, received from any person as part of the Utah State Auditor’s Audit of JSSD.”

In a letter dated August 27, 2015, Linda Siebenhaar, Records Officer for Respondent, stated that certain documents were not being provided because they involved:

(1) Communications with complainants using the Office Hotline;
(2) Persons requesting anonymity with the Office;
(3) Material that is legally owned by an individual in the individual’s private capacity and therefore, not considered a public record subject to GRAMA;
(4) Communications between the Office and JSSD because it was assumed that JSSD already had a copy of those documents;
(5) Communications with the Utah Attorney General’s Office; and
(6) Discussions of information deemed “protected” pursuant to Utah Code § 63G-2-305(32) including closed meetings held by JSSD.

Respondent also provided a number of pages of documents classified as “public,” with redactions concerning any information that Respondent determined to be “non-public” information.

In a letter dated September 28, 2015, JSSD filed an appeal with John Dougall, the Utah State Auditor, and in a letter dated October 13, 2015, Mr. Dougall denied JSSD’s appeal, adopting and re-affirming Ms. Siebenhaar’s decision granting in part, and denying in part, JSSD’s GRAMA request.

Thereafter, JSSD filed an appeal to the State Records Committee (“Committee”). 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. GRAMA describes procedures by which a person has the right to obtain copies of records. Utah Code §§ 63G-2-201 and -204.

2. The sharing provisions in GRAMA describe procedures by which a governmental entity may obtain records from another governmental entity. Utah Code § 63G-2-206.

3. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that –it does not have jurisdiction to hear the appeal of JSSD because JSSD is a “governmental entity” under Subsection 63G-2-103(11) (11)(b)(ii), not a “person” as that term is defined in GRAMA under Subsection 63G-2-103(17).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jordanelle Special Services District is DENIED. The Petitioner is not a “person” as defined by Utah Code § 63G-2-103(17), rather, the Petitioner is a governmental entity as defined by Utah Code § 63G-2-103(11)(b)(ii). As such, this Committee does not have jurisdiction over this matter, and cannot properly hear the appeal of the Petitioner.

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 Utah Code § 63G-2-404(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