State Records Committee Appeal Decision 2017-29

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RICHARD NORMAN STEIN, Petitioner, v.

OGDEN CITY POLICE DEPARTMENT. Respondent.

DECISION AND ORDER

Case No. 17-29

By this appeal, Petitioner, Richard Norman Stein, seeks access to records allegedly held by Respondents, Ogden City Police Department.

FACTS

On or about May 9, 2017, Mr. Stein made a records requests pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Stein requested all records pertaining to a case with the Ogden City Police Department (“Respondent”). On May 23, 2017, the Respondent denied, in part, Mr. Stein’s request, and provided redacted copies of the remaining requested information that was available.

On July 14, 2017, Mr. Stein filed an appeal with the State Records Committee (“Committee”). The Respondent claims that the Committee does not have jurisdiction to hear the matter because Mr. Stein has a pending appeal before the Ogden Records Review Board, pursuant to Utah Code § 63G-2-701(5)(c). On September 14, 2017, the Committee held a public hearing to consider the merits of Respondent’s arguments regarding jurisdiction and Mr. Stein’s Appeal. After hearing oral argument and testimony from all the parties, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records and Access Management Act (GRAMA) grants political subdivisions the option to “establish an appeals board to decide an appeal of a decision of the chief administrative officer affirming an access denial.” GRAMA further specifies that "if a political subdivision establishes an appeals board, any appeal of a decision of a chief administrative officer shall be made to the appeals board.” Utah Code § 63G-2-701(5)(c)(ii) and (iii).

2. If unsatisfied with the local appeals board decision, either party, including the requester, may appeal the appeals board decision to the state records committee as provided in Section 63G-2-403. Utah Code Section § 63G-2-701(6)(a)(i).

3. In the present case, Respondent requested that the appeal be dismissed because the Ogden Records Review Board had not yet had the opportunity to review Mr. Stein’s appeal.

4. After hearing testimony and reviewing the parties' arguments regarding Respondent’s motion to dismiss, the Committee finds that Mr. Stein’s appeal should be dismissed because the appeal should first be heard by the Ogden Records Review Board prior to being heard by the Committee pursuant to Utah Code § 63G-2-701(5).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Richard Norman Stein, is DISMISSED.

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 September 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee