State Records Committee Appeal Decision 2016-10

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. 16-10

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

FACTS

In June and July 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 requests, several extensions to the response deadlines were given for Mr. Sullivan’s requests. One of the requests was for “[a]ny, and all, emailed sent and received” by a specific individual that mentioned Mr. Sullivan’s name, or specific case numbers within the subject and/or body of the messages between “Jan. 1, 2012 to present.”

Mr. Sullivan filed an appeal with the State Records Committee (“Committee”), claiming that the delays by the AG’s Office were “unreasonable.” After holding a hearing on January 14, 2016, the Committee found that Mr. Sullivan had failed to file an appeal with the chief administrative officer for the AG’s Office as required by Utah Code § 63G-2-401(1). Sullivan v. Utah Attorney Gen. Office, State Records Committee Case No. 16-01 (Jan. 26, 2016).

After filing an appeal with the AG’s Office, Mr. Sullivan filed a second appeal with the Committee, arguing that the AG’s Office still had not provided all records responsive to his GRAMA request. On or about March 7, 2016, the AG’s Office mailed Mr. Sullivan additional records. However, the mailing envelope was returned undelivered to the AG’s Office on March 16, 2016, one day prior to the hearing before the Committee.

At the Committee hearing held on March 17, 2016, counsel for the AG’s Office brought the additional records that had been mailed to Mr. Sullivan, and argued that Mr. Sullivan’s appeal was moot because all records had now been provided to Mr. Sullivan. However, since Mr. Sullivan was attending the hearing telephonically, Mr. Sullivan could not review the additional records at that time and determine whether the AG’s Office had in fact complied with his records request.

ORDER

THEREFORE, IT IS ORDERED THAT the hearing on this matter is CONTINUED until the next available hearing of the State Records Committee, in order to allow Petitioner, Patrick Sullivan, sufficient time to review the additional documents provided by Respondent, the Utah Attorney General’s Office, and determine whether the AG’s Office complied with his initial records request.

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 28th day of March, 2016.

BY THE STATE RECORDS COMMITTEE

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PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee