State Records Committee Appeal Decision, 2016-35

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARIAN SEAMONS, Petitioner, v.

TICABOO UTILITY IMPROVEMENT DISTRICT. Respondent.

DECISION AND ORDER

Case No. 16-35

By this appeal, Petitioner, Marian Seamons, seeks access to records allegedly held by Respondent, Ticaboo Utility Improvement District.

FACTS

During the month of April and May 2016, Ms. Seamons made multiple records requests to Ticaboo Utility Improvement District ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Seamons requested that the Respondent provide itemized billing statements and other records relating to the billing that occurred on lots in Ticaboo, Utah, that Ms. Seamons owns.

Respondent provided Ms. Seamons some records regarding audit and billing pertaining to Respondent and the lots listed under Ms. Seamons, but her other requests were denied on the basis that the Respondent had no records responsive to her request. Ms. Seamons appealed the denials to Respondent’s Chief Administrative Office and the Chairman of Respondent's Board of Trustees, Tom Hill. The denials were upheld pursuant to Utah Code § 63G-2-204(3)(b)(iii), in that the Respondent did not have any records responsive to Ms. Seamons’ request.

Ms. Seamons 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 September 8, 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 historical billing that occurred on lots in Ticaboo, Utah that Ms. Seamons owns.

3. After reviewing all materials provided, and hearing testimony and oral arguments from the parties, the Committee finds Respondent’s arguments that it does not have records responsive to Ms. Seamons' 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 Ms. Seamons' 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 19th day of September 2016.

BY THE STATE RECORDS COMMITTEE

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PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee