State Records Committee Appeal Decision 2016-04

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

AZLEN MARCHET, Petitioner, v.

UTAH DEPARTMENT OF PUBLIC SAFETY, BUREAU OF FORENSIC SERVICES. Respondent.

DECISION AND ORDER

Case No. 16-04

By this appeal, Petitioner, Azlen Marchet, seeks access to records allegedly held by Respondent, the Utah Department of Public Safety, Bureau of Forensic Services.

FACTS

In a letter dated November 2, 2016, Mr. Marchet made a records request to the Utah Department of Public Safety, Bureau of Forensic Services ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Marchet requested DNA test results from a Sexual Assault Evidence Kit (“SEAK”) that was collected in 2003. On November 6, 2015, Respondent denied Mr. Marchet’s request indicating that no test results were available because the SEAK had not yet been tested.

On November 14, 2015, Mr. Marchet appealed, and in a letter dated November 23, 2015, Lieutenant Jimmy Higgs, affirmed the denial. Thereafter, Mr. Marchet filed an appeal with the State Records Committee (“Committee”), and on February 11, 2016, the Committee held a public hearing. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony, and carefully considering the requested relief, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “[i]n response to a request, a governmental entity is not required to create a record…” Utah Code §63G-2-201(8)(a)(i).

2. Counsel for Respondent argued that the SEAK was received by Respondent on September 18, 2015, but that it has not yet been tested, and is among approximately 500 other SEAKs that are awaiting testing. Therefore, at this time, no record exists that is responsive to Mr. Marchet’s request.

3. After hearing the argument, the Committee finds that, Respondent does not have a record responsive to Mr. Marchet’s request, and pursuant to Utah Code § 63G-2-201(8)(a)(i), is not required to create a record. Accordingly, Respondent is not required to provide a record to Mr. Marchet’s records request.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Azlen Marchet, 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 February 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee