State Records Committee Appeal Decision 2016-37

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

HELEN H. REDD, on behalf of MARC JENSON, Petitioner, v.

UTAH ATTORNEY GENERAL'S OFFICE. Respondent.

DECISION AND ORDER

Case No. 16-37

By this appeal, Petitioner, Helen H. Redd, legal counsel for Marc Jenson, seeks access to records allegedly held by Respondent, Utah Attorney General's Office.

FACTS

On or about April 7, 2016, Ms. Redd submitted six records requests to the Utah Attorney General's Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). On May 2, 2016, Ms. Redd submitted twelve additional records requests, and on June 8, 2016, four more records requests were submitted.

On May 13, 2016, Respondent informed Ms. Redd that due to extraordinary circumstances, it was extending the time to respond to Ms. Redd's outstanding requests pursuant to Utah Code § 63G-2-204(5)(d) and (e). At the time, Respondent estimated that it would be able to provide an initial response to each of the requests by June 1, 2016, but explained that it would provide an updated time estimate by that date if additional time was needed. On June 1, 2016, Respondent informed Ms. Redd that a further extension of time was necessary pursuant to Utah Code § 63G-2-204(5)(d) and (e). Ms. Redd administratively appealed the Respondent's claim of extraordinary circumstances, and Parker Douglas, General Counsel for Respondent affirmed the determination of extraordinary circumstances.

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 September 8, 2016, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code §63G-2-201(2). Records that are private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).

2. As soon as reasonably possible, but no later than ten business days after receiving a written request, or five business days after receiving a written request if the requester demonstrates that expedited response to the record request benefits the public rather than the person, the governmental entity shall respond by approving the request, denying the request or notifying the requestor that because of extraordinary circumstances it cannot immediately approve or deny the request. Utah Code § 63G-2-204(3)(a) and (b).

3. A request for voluminous quantity of records “extraordinary circumstances” that allow a governmental entity to delay approval or denial by an additional period of time if the governmental entity determines that due to the extraordinary circumstances it cannot respond within the time limits provided. Utah Code § 63G-2-204(5)(c).

4. If a governmental entity claims extraordinary circumstances and specifies the date when the records will be available, and, if the requester believes the extraordinary circumstances do not exist or that the date specified is unreasonable, the requester may appeal the governmental entity's claim of extraordinary circumstances or date for compliance to the chief administrative officer by filing a notice of appeal with the chief administrative officer within 30 days after notification of a claim of extraordinary circumstances by the governmental entity, despite the lack of a "determination" or its equivalent. Utah Code § 63G-2-401(1)(b).

5. At the hearing, Respondent argued that it is currently working on complying with Petitioners’ GRAMA request, claiming that the request was voluminous constituting extraordinary circumstances.

6. The Committee having reviewed Ms. Redd's records requests, and the arguments and testimony of the parties, finds that Respondent presented sufficient evidence to show that the claim for extraordinary circumstances was appropriate pursuant to Utah Code §§ 63G-2-204(5)(c) and -204(6)(c)(iv)(B).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Helen H. Redd, legal counsel for Marc Jenson, is hereby DENIED as detailed above.

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

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee