State Records Committee Appeal Decision 2017-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

UTAH RIVERS COUNCIL, Petitioner, v.

UTAH DIVISION OF WATER RESOURCES, Respondent.

DECISION AND ORDER

Case No. 17-13

By this appeal, Petitioner, the Utah Rivers Council, seeks access to records held by Respondent, the Utah Division of Water Resources (“Division”).

FACTS

In a letter dated November 7, 2016, Nick Schou, Conservation Director of the Utah Rivers Council (“URC”), made a request to the Division for records pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Schou requested “all 2015 water use data submitted to the [Division] by public water suppliers in Utah.” Eric Millis, Director of the Division, denied the request, stating that the “2015 water use and supply data will not be ready until the independent verification process is completed.”

In a letter dated January 4, 2017, Mr. Schou wrote to Mr. Millis asking “[w]hy is it that you cannot share your agency’s municipal water use data summaries with our organization so that we may also independently review them?” Mr. Schou then argued that he believed that “this request serves the public interest by providing transparency regarding the [Division’s] use of public water data and the future of Utah’s water resources.” Mr. Millis responded with a letter dated January 13, 2017, stating that there were “still issues with some of the data” received by the Division, and that since the data was not in a final form, the data should be protected as a “draft” pursuant to Utah Code § 63G-2-305(22).

On behalf of URC, Mr. Schou filed an appeal with the State Records Committee (“Committee”). On March 16, 2017, the Committee held a hearing where the parties were allowed to present their legal arguments. After considering all arguments by the parties and reviewing all written materials, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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. Drafts are protected records if properly classified by a governmental entity and are not otherwise classified as public records. Utah Code § 63G-2-305(22).

3. During the Respondent’s testimony, it was discovered that the Division maintained a separate database of water usage information collected from multiple sources. Counsel for the Division argued that the raw water data that had been collected by the Division should be considered “draft” information because Utah Code § 73-10g-105(3)(c) requires the Division to “institute a process for the independent verification of the data” received by the Division. Counsel stated that the raw data is verified by the Division before being used in a final report that is made to the public, and therefore, the raw data cannot be relied upon prior to verification.

4. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the raw data collected by the Division is not a draft record pursuant to Utah Code § 63G-2-305(22). Even though the database containing the raw data consists of unverified data, the information within the database should still be considered a public record and not be protected as a draft record.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, the Utah Rivers Council 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 27th day of March 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee