State Records Committee Appeal Decision 2017-25

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LANCE ROLPH, Petitioner, v.

UTAH DEPARTMENT OF HUMAN SERVICES, OFFICE OF RECOVERY SERVICES. Respondent.

DECISION AND ORDER

Case No. 17-25

By this appeal, Petitioner, Lance Rolph, seeks access to records allegedly held by Respondent, the Utah Department of Human Services, Office of Recovery Services.

FACTS

On February 27, 2017, Mr. Rolph filed a request for records from the Utah Department of Human Services, Office of Recovery Services (“ORS”), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Rolph requested copies of any records used by ORS against him in prior court proceedings. In a letter dated March 13, 2017, Kari Smith with ORS provided copies of records responsive to Mr. Rolph’s records request. Ms. Smith stated in the letter that some records could not be provided to Mr. Rolph because ORS did not have some records responsive to his request and/or the records were held by Utah District Courts or by the Utah Attorney General’s Office.

On April 12, 2017, Mr. Rolph filed an appeal with Liesa Stockdale, Chief Administrative Officer for ORS. Mr. Rolph argued that his case was still open “and the records within this case file should be readily available.” In a letter dated April 20, 2017, Ms. Stockdale affirmed the decision of Ms. Smith, finding that “ORS does not maintain the debt computation or evidence” related to Mr. Rolph’s case. Ms. Stockdale also referred Mr. Rolph to the Utah Attorney General’s Office to obtain some of his requested records.
On April 25, 2017, Mr. Rolph filed an appeal with the State Records Committee (“Committee”). Written notice of the time and place of the hearing was given to all parties. A hearing was held before the Committee on July 13, 2017, where the parties were allowed to present their legal arguments. See, Utah Code § 63G-2-403(8). When the case was initially called, Mr. Rolph was not present and his appeal hearing was moved to the end of the Committee’s agenda. After not having received any communication from Mr. Rolph regarding his absence from the hearing, the Committee proceeded with the hearing. After having reviewed the arguments submitted by the parties and having heard oral argument and testimony from legal counsel for ORS, the Committee now issues the following Decision and Order:

STATEMENT OF REASONS FOR DECISION

1. In response to a request for a record under GRAMA, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).

2. Counsel for ORS stated during the hearing that ORS had provided all responsive records to Mr. Rolph and it maintained no further responsive records. In its written argument provided to the Committee, ORS counsel stated:

[ORS] has strictly complied with GRAMA in its response to Petitioner. If anything, [ORS] has been incredibly liberal in its supplemental responses to Petitioner to get him the records it maintains. As to records it does not maintain, [ORS] has complied with GRAMA by directing Petitioner to the governmental entities that maintain these records. [ORS] cannot provide something it does not have, and has explained why it does not maintain these records under the circumstances of [Mr. Rolph’s] case.

3. After having reviewed the written arguments of the parties, and hearing testimony and arguments at the hearing, the Committee finds that ORS does not have further records responsive to Mr. Rolph’s request for records. Accordingly, ORS cannot be ordered to release records it does not possess.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Lance Rolph, is hereby 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 25th day of July 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
HOLLY RICHARDSON, Chairperson pro tem
State Records Committee