State Records Committee Appeal Decision 2017-45

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

WANDA G. AMANN, Petitioner, v.

UTAH INDEPENDENT EXECUTIVE BRANCH ETHICS COMMISSION, Respondent.

DECISION AND ORDER

Case No. 17-45

By this appeal, Petitioner, Wanda G. Amann, seeks access to records held by Respondent, Utah Independent Executive Branch Ethics Commission (“Commission”).

FACTS

On or about July 7, 2017, Petitioner filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) with the Commission. Petitioner requested records and communications of the Commission related to the hiring, retaining, employing, or contracting of Chuck Conrad as legal counsel for the Commission. On July 19, 2017, Justin Atwater, Executive Director for the Commission, denied Petitioner’s request finding that the requested records had been classified with restricted access pursuant to Utah Code §§ 63G-2-201(3) and -201(6).

In a letter dated July 25, 2017, Paul G. Amann, husband and acting legal counsel for Petitioner, filed an appeal with the Commission arguing that the “denial is without basis” claiming that any documentation governing the hiring of Mr. Conrad should be made public and available online. In an email message dated August 8, 2017, Mr. Atwater stated that a “decision has been made to not respond to your appeal” and that “no response is equivalent to [an] affirmation of the initial access denial.” See, Utah Code § 63G-2-401(5)(b).

On August 25, 2017, Petitioner filed an appeal with the State Records Committee (“Committee”). A hearing was held by the Committee on October 12, 2017. See, Amann v. Utah Executive Branch Ethics Comm., State Records Committee Order No. 17-39 (Oct. 23, 2017). During the hearing, a member of the Committee made a motion that the hiring records should be made public pursuant to Utah Code § 63G-2-301(2)(b) because she did not believe the Commission “gets a carve out on how it hires people.” The motion passed 5-1. Thereafter, a motion was made that the remaining records were appropriately classified as “private” pursuant to Utah Code § 63G-2-301(2)(e). This motion passed 6-0. A third motion was then made to review the records in camera in order to consider whether the properly classified private records should be made public pursuant to Utah Code § 63G-2-403(11)(b). This motion passed 5-1. Since the records were not available from the Commission at the time of the hearing, a fourth motion was made to continue the hearing to a later date in order to “allow the Committee to properly review the disputed records.” See, Amann. The motion passed 6-0.

The disputed documents were later provided by the Commission to the Committee and the hearing was continued until December 14, 2017, when the Committee closed the meeting and reviewed the records in camera. During both hearings, Petitioner was legally represented by her husband Paul G. Amann. After having reviewed the written arguments of the parties, having heard the oral arguments of the parties, and having reviewed the records in camera, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The 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 not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Records received by or generated by or for the Commission are private records “except as otherwise expressly provided in Title 63A, Chapter 14, Review of Executive Branch Ethics Complaints. Utah Code § 63G-2-302(1)(e).

3. After having reviewed all of the requested records in camera, and having reviewed Title 63A, Chapter 14, the Committee finds that all of the requested records were properly classified by the Commission as private records. Even though Utah Code § 63G-2-301(2)(b) requires certain records of a current or former employee of a governmental entity to be made public, the more specific provisions found in Utah Code § 63G-2-302(1)(e) requires the requested records to be classified as private records. An in camera review of the records showed that the requested records were records “received or generated” by the Commission and were therefore, not subject to disclosure under any provision found in Title 63A, Chapter 14. Accordingly, the Committee finds that the Commission properly classified the requested records to be private records pursuant to the plain language of Utah Code § 63G-2-302(1)(e). This finding reverses the previous motion made by the Committee on October 12, 2017, finding that the hiring records should be made public pursuant to Utah Code § 63G-2-301(2)(b). However, the Committee is able to take this action because: (1) Subsequent to the motion, the records were reviewed by the Committee in camera, and (2) The December 14, 2017, hearing was a continuation of the October 12, 2017, hearing allowing the Committee to revisit prior motions not yet memorialized in an appealable written Order and Decision of the Committee.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Wanda G. Amann, 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 26th day of December 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee