State Records Committee Appeal Decision 2017-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

EDWARD BERKOVICH, Petitioner, v.

MILLARD COUNTY ATTORNEY’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 17-16

By this appeal, Petitioner, Edward Berkovich, seeks access to records allegedly held by Respondent, Millard County.

FACTS

On January 5, 2017, Mr. Berkovich filed a request for records from the Millard County Attorney’s Office (“Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Berkovich stated that on October 21, 2015, an emergency meeting was held by the Utah Prosecution Council (“UPC”). Christine Stevens, an employee of the Office, attended that meeting in her capacity as a UPC member. Ms. Stevens took notes at the meeting on behalf of the UPC and sent her notes to Bob Church, Director of UPC. Mr. Berkovich requested a copy of any notes or meeting minutes taken by Ms. Stevens for the meeting.

In a letter dated February 1, 2017, Patrick S. Finlinson, Millard County Attorney, confirmed that Ms. Stevens had taken notes at the meeting and later prepared minutes from her notes which were later emailed to Mr. Church. Mr. Finlinson also stated that Ms. Stevens’ hand written notes had been destroyed “soon after preparing the minutes.” Mr. Finlinson further stated that Millard County did not have a copy of Ms. Stevens’ draft meeting minutes because Millard County’s email system had been recently upgraded and that emails not flagged for retention were deleted during the process including Ms. Stevens’ email to Mr. Church. Accordingly, the Office could not provide Mr. Berkovich with any of the requested records.

In a letter dated March 3, 2017, Mr. Berkovich filed an appeal to James Withers, Chairman of the Millard County Commission. Mr. Berkovich requested that Ms. Stevens’ computer be searched to determine if the minutes were saved on the computer prior to being attached to the email sent to Mr. Church. After not receiving a timely response from Millard County, Mr. Berkovich filed an appeal with the State Records Committee (“Committee”). On April 13, 2017, a hearing was before the Committee where the parties were allowed to present their legal arguments. After having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, the Committee now issues the following Decision and Order:

STATEMENT OF REASONS FOR DECISION

1. The Utah 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. Pending minutes, approved minutes, and a recording of a public meeting are public records under GRAMA. Utah Code § 52-4-203(4)(b). Recordings and written minutes of closed meetings are protected records under GRAMA, except that the records may be disclosed under a court order only as provided under Utah Code § 52-4-304. Utah Code § 52-4-206(5).

3. Mr. Finlinson, Millard County Attorney, stated that after the initial denial to Mr. Berkovich, he asked Ms. Stevens to search for the requested record. Mr. Finlinson said that Ms. Stevens found the document attached to an email she had sent to UPC from her personal email account. Ms. Stevens thereafter gave the document to Mr. Finlinson who then held the record on behalf of the Office. Mr. Finlinson brought a printed copy of the document to the hearing and presented it to the Committee.

4. After reviewing the arguments of the parties and having reviewed the requested document in camera, the Committee determined that by virtue of obtaining the record by Millard County in response to an open records request, it is the County’s record. Additionally, the Committee finds that the record is a public record because it should be considered “pending minutes” of the UPC meeting pursuant to Utah Code § 52-4-203(4)(b). However, a review of the record also shows that it contains minutes of a closed portion of the UPC meeting. Accordingly, although Mr. Berkovich is entitled to receive a copy of the pending minutes, all minutes regarding the closed portion of the UPC meeting must be redacted prior to release as required by Utah Code §§ 52-4-206(5) and 63G-2-308.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Edward Berkovich, is hereby GRANTED IN PART and DENIED IN PART.

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 24th day of April 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee