State Records Committee Appeal Decision 2016-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

HELEN REDD, FOR AND ON BEHALF OF MARC JENSEN, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 16-08

By this appeal, Petitioner, Helen Redd, for and on behalf of Marc Jensen, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.

FACTS

On October 9, 2015, Ms. Redd made a records request to the Utah Attorney General’s Office ("AG's Office"), pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Redd requested “[a]ny and all documents that would support representations of the Office of the Attorney General at the August 23rd 2011 hearing, Jan 30, 2012 letter to the Board of Pardons and Parole and on any other occasion where the AG office made statements that Marc Jensen paid no restitution in Case no. 051905391, (filed 3d Dist Utah).”

On October 26, 2015, Blaine Ferguson, an Assistant Attorney General with the AG's Office, denied Ms. Redd records request on the grounds that the request was not sufficiently specific. On November 25, 2015, Ms. Redd appealed the denial, and on December 3, 2015, Parker Douglas, Chief of Staff and Federal Solicitor for the AG’s Office, issued a decision affirming the denial.

Ms. Redd 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 February 11, 2015, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. If the records are not designated as either “private,” “protected,” or “controlled,” and the “person identified the record with reasonable specificity,…” a governmental entity shall provide a person with a certified copy of the requested record. See Utah Code § 63G-2-201(7).

3. The AG’s Office argued that the requested record was not “sufficiently specific,” and therefore, denied the request.

4. "Reasonable specificity" should be defined as whether a reasonable person can understand what records are being requested by the requestor. A review of the records request made by Ms. Redd shows that it was reasonably specific, especially after Ms. Redd provided clarification at the hearing concerning what was being requested. Accordingly, the AG's Office should fulfill Ms. Redd's records request.

ORDER

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

BY THE STATE RECORDS COMMITTEE

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PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee