State Records Committee Appeal Decision 2016-48

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LORI WILLIAMS, Petitioner, v.

PLEASANT GROVE CITY. Respondent.

DECISION AND ORDER

Case No. 16-48

By this appeal, Petitioner, Lori Williams, seeks access to records allegedly held by Respondent, Pleasant Grove City.

FACTS

In a letter dated August 16, 2016, Ms. Williams requested records related to the annual Strawberry Days festival held annually in Pleasant Grove City (“City”). Ms. Williams made the records request pursuant to the Government Records Access and Management Act (“GRAMA”). On September 7, 2016, the City granted in part and denied in part the records request. The denial was based upon the City’s finding that it did not maintain certain records because the “Strawberry Days Association which is a private entity maintains the record.”

Ms. Williams filed an appeal with the City, claiming that the Strawberry Days Association’s committee “serves under the authority of the city.” In a letter dated September 20, 2016, J. Scott Darrington, Administrator for the City, denied Ms. Williams’ appeal stating:

Some of the records that you are requesting are not under the purview of Pleasant Grove City. We do not maintain the records that belong to the Strawberry Days Association. They are not public records subject to GRAMA. The Strawberry Days Association and Rodeo Association are separate entities and therefore the City can’t force them to produce records. Those Associations can make their own determination on what they will open to the public.

On October 4, 2016, Ms. Williams filed an appeal with the State Records Committee (“Committee”). On December 8, 2016, a hearing was before the Committee where the parties were allowed to present their legal arguments. After considering all written materials and the arguments by the parties, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2).

2. A record means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics that is “prepared, owned, received, or retained by a governmental entity or political subdivision” and “where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.” Utah Code § 63G-2-103(22)(a).

3. A “governmental entity” means any “political subdivision of the state,” and “every office, agency, board, bureau, committee, department, advisory board, or commission” of a political subdivision “that is funded or established by the government to carry out the public’s business.” Utah Code §§ 63G-2-103(11)(a)(v) and -103(11)(b)(i).

4. Ms. Williams argued that the Strawberry Days festival has always been organized, run and directed by Pleasant Grove City, with: (1) City employees filling many seats on the Strawberry Days Association’s committee (including for many years the chair’s seat); (2) Top positions with the Strawberry Days Association being filled by the Mayor and Council by city ordinance; (3) The Strawberry Days Association using and directing City resources including City funds, City property, and City utilities, and (4) The Strawberry Days Association using the City’s tax number, staff and insurance. Ms. Williams further argued that the Strawberry Days Association “has and still does answer to the city, runs requests through the city, and processes most activities at the city level.” Ms. Williams also presented evidence showing that the Strawberry Days Association’s business license expired on October 20, 2004, but has now been registered since December 5, 2016, using the City’s address as its business address. Ms. Williams claimed that the Strawberry Days Association and the City have operated for years “as one unit” with overlaps in accountability, organization, resources, property, and employees.

5. The City claims that the Strawberry Days Association is a separate legal entity from the City. The City stated that the Strawberry Days Association was incorporated in 1962 to publicize and promote the Strawberry Days festival by providing “in kind services and paying the expenses for city sponsored activities” including the Miss Pleasant Grove Queen Pageant. The City argued that the separate nature of the two organizations is demonstrated in part by a financial reconciliation between the City’s Finance Director and the financial representative of the Strawberry Days Association at the conclusion each year’s Strawberry Days festival,.

6. After having reviewed the arguments of the parties and hearing testimony and arguments at the hearing, the Committee is unconvinced that the Strawberry Days Association was a separate non-governmental legal entity from Pleasant Grove City during the period of time 2004 to December 2016. The evidence shows that the Strawberry Days Association has been established and/or funded by the City, and that records “prepared, owned, received, or retained” by the Strawberry Days Association may be under the control of the City. Accordingly, a records request made by Ms. Williams pursuant to GRAMA for records of the Strawberry Days Association should be fulfilled by Pleasant Grove City.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Lori Williams, 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 19th day of December 2016.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee