State Records Committee Appeal Decision 2017-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JENNIFER BAPTISTA, Petitioner, v.

PLEASANT GROVE CITY. Respondent.

DECISION AND ORDER

Case No. 17-09

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

FACTS

In a request received by Pleasant Grove City (“City”) on December 22, 2016, Ms. Baptista requested all “drafts/notes of City Council Meeting Minutes taken by City Recorder during the meetings for the 2016 year” pursuant to the Government Records Access and Management Act (“GRAMA”). The City denied the request finding that the requested records were either protected “drafts” pursuant to Utah Code § 63G-2-305(22), or were not considered records because they were “temporary drafts” pursuant to Utah Code § 63G-2-103(22)(b)(ii).

Ms. Baptista filed an appeal with Scott Darrington, Chief Administrative Officer of the City. In a letter dated January 11, 2017, Mr. Darrington affirmed the City’s denial of Ms. Baptista’s request for copies of drafts/notes of City Council Meeting Minutes taken by the City Recorder pursuant to Utah Code § 63G-2-103(22)(b)(ii). Mr. Darrington stated that pursuant to Utah’s Open and Public Meetings Act (“OPMA”), the City is required to produce pending minutes within 30 days of the public meeting. See, Utah Code § 52-4-203(4)(f)(i)(A). Mr. Darrington wrote that “the City has produced your requests from the pending minutes within this time frame and in many instances have gotten the minutes to you before the required time period.” Mr. Darrington further stated that the “audio and video recordings of the meeting…are available during the time period that the minutes are being transcribed and proofread.”

On January 13, 2017, Ms. Baptista filed an appeal with the State Records Committee (“Committee”). On February 9, 2017, 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. Unless otherwise classified as a public record, drafts are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(22).

3. Under GRAMA, a “record” does not mean a temporary draft or similar material prepared for the originator’s personal use or prepared by the originator for the personal use of an individual for whom the originator is working. Utah Code § 63G-2-103(22)(b)(ii).

4. The City stated that the City Recorder typically makes handwritten notes during a city council meeting for her own personal use in preparing the draft minutes. The City also uses a transcriber to assist in the preparation of the draft minutes. The handwritten notes are then used to prepare the draft minutes, and once the handwritten notes are no longer needed, they are destroyed. Therefore, many of the handwritten notes from the City Recorder for 2016 no longer exist.

5. After having reviewed the arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the City properly classified the records as protected records pursuant to Utah Code § 63G-2-305(22) or as non-records pursuant to Utah Code § 63G-2-103(22)(b)(ii). Any records still in the possession of the City are either drafts or temporary drafts, and are not public records subject to disclosure according to GRAMA.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jennifer Baptista, 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 21st day of February 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee