State Records Committee Appeal Decision 2017-30

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DAVID LARSEN, Petitioner, v.

HEBER CITY POLICE DEPARTMENT. Respondent.

DECISION AND ORDER

Case No. 17-30

By this appeal, Petitioner, David Larsen, seeks access to records allegedly held by Respondents, Heber City Police Department.

FACTS

On or about April 6, 2017, Mr. Larsen made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Larsen requested all Drug Recognition Expert (DRE) road and field training documents and policies, including any policy changes and who made those changes, for the Heber City Police Department (“Respondent”), from 2015 to present.

On or about April 11, 2017, the Respondent sent Mr. Larsen a letter indicating that all the requested records were ready for Mr. Larsen as previously noted in the letter dated October 1, 2015, for his first request for the same records. Respondent also noted that Mr. Larsen had been provided access to all documentation regarding policy changes.

Mr. Larsen appealed the letter and in a subsequent letter dated April 17, 2017, the Respondent reminded Mr. Larsen that he was previously presented with the requested records, paid for what records were desired and took said records, leaving the remaining unpaid records with the Police Department. Respondent noted that the records were still available with the Police Department. Respondent also noted that the request for the Policies and Procedures was approved and addressed how to obtain those records in an email dated December 28, 2016.

Mr. Larsen filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 14, 2017, 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 not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. 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. Utah Code § 63G-2-201(1). In response to a records request, a governmental entity is not required to provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(iii).

3. In the present case, the Respondent argued that the request was approved and that all requested documents had been provided to Mr. Larsen, but that Mr. Larsen was requesting the documents to be provided in a different format. The Committee was persuaded that the Respondent had fully complied with the request by providing the records in the format in which they were maintained and was not required to provide the records in a different format.

4. After hearing testimony and reviewing the parties' arguments, the Committee finds that Mr. Larsen had been provided all the records responsive to his GRAMA request.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, David Larsen, 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 25th day of September 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee