State Records Committee Appeal Decision 2016-32

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

HARSHAD P. DESAI, Petitioner, v.

PANGUITCH CITY, UTAH. Respondent.

DECISION AND ORDER

Case No. 16-32

By this appeal, Petitioner, the Harshad P. Desai, seeks access to records allegedly held by Respondent, Utah County Commission.

FACTS

During the month of May 2016, Mr. Desai made multiple records requests to Panguitch City, Utah ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Desai requested that Respondent provide the education, experience, and résumés for the Mayor and Council Members, as well as for members of the Planning and Zoning Committee and the Panguitch City office staff. Respondent provided Mr. Desai some records regarding Panguitch City office staff members, but his other requests were denied on the basis Respondent had no records responsive to his request. Mr. Desai also made another records request for a record detailing the total population within a thirty mile radius of Panguitch City. This request was similarly denied because no document existed with this type of information.

Mr. Desai appealed the denials to Respondent’s City Manager, Lori Talbot, as well as to Respondent’s Mayor, Eric Houston. The denials were upheld on the basis that the requested records, outside of what had already been provided, did not exist, and that Respondent was not required to create a record. Mr. Desai 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 August 11, 2016, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. In response to a records request, a governmental entity is not required to create a record, or “compile, format, manipulate, package, summarize, or tailor information.” Utah Code § 63G-2-201(8)(a)(i) & (ii).

2. Respondent provided testimony that it does not have the requested records regarding the education, experience, and résumés for the Mayor and Council Members, as well as for members of the Planning and Zoning Committee. The Mayor and Council Members are elected officials who are not required to submit their education, experience, or résumés in order to be elected. Since members of the Planning and Zoning Committee serve as volunteers, Respondent does not possess these types of records. The Respondent also provided testimony that Panguitch City does not have a record detailing the population within a thirty-mile radius.

3. After reviewing all written materials, and hearing testimony and oral arguments from the parties, the Committee finds Respondent’s arguments that it does not have records responsive to Mr. Desai’s records request persuasive. Accordingly, since a governmental entity is not required to create a record in response to a records request pursuant to Utah Code § 63G-2-201(8)(a)(i) & (ii), Respondent’s denial of Mr. Desai’s records request is affirmed.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner 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 22nd day of August 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee