State Records Committee Appeal Decision 2017-46

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

AARON DAVID TRENT NEEDHAM, Petitioner, v.

STATE OF UTAH DEPARTMENT OF COMMERCE, DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING (DOPL), Respondent.

DECISION AND ORDER

Case No. 17-46

By this appeal, Petitioner, Aaron David Trent Needham, seeks access to records held by Respondent, State of Utah Department of Commerce, Division of Occupational and Professional Licensing (“DOPL”).

FACTS

On September 19, 2017, Petitioner filed a letter with the executive secretary of the State Records Committee (“Committee”) requesting assistance obtaining records from DOPL. Petitioner claimed that he filed a records request on June 29, 2017, and a notice of appeal on August 11, 2017, but had not received a response from DOPL.

After having been informed that an appeal had been filed by Petitioner, Assistant Attorney General Ché Arguello, legal counsel for DOPL, stated in a letter dated September 22, 2017, that he had “consulted with records officers for both DOPL and [the Utah Department of] Commerce, all of whom confirmed they have never received either a request or appeal related to Mr. Needham’s matter currently pending before the Records Committee.” Mr. Arguello later wrote in a letter to the Committee dated October 3, 2017, that “DOPL is more than willing to consider Mr. Needham’s request for records, but asks that Mr. Needham follow the law on how such requests are made.”

The Committee scheduled a hearing on the matter on December 14, 2017. At the hearing, Mr. Arguello requested that Petitioner’s appeal be dismissed based upon Petitioner failing to follow the requirements found in the Government Records Access and Management Act (“GRAMA”) for making a records request to a governmental entity. After having heard oral argument and testimony at the hearing held on December 14, 2017, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. A person making a request for a record under GRAMA, shall furnish the governmental entity with a written request containing the person’s name, mailing address, daytime telephone number if available, and a description of the record requested that identifies the record with reasonable specificity. Utah Code § 63G-2-204(1).

2. A requester may appeal an access denial to the chief administrative officer of the governmental entity by filing a notice of appeal with the chief administrative officer. Utah Code § 63G-2-401(1)(a). A requester may appeal the decision of the chief administrative officer of a governmental entity under Utah Code § 63G-2-401 by: (1) Appealing the decision to the Committee as provided in Utah Code § 63G-2-403 or; (2) Petitioning for judicial review in district court as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-402(1)(a).

3. After reviewing the written and oral arguments of the parties, the Committee is persuaded by Respondent’s argument that Petitioner failed to follow the requirements outlined in GRAMA for requesting a record from DOPL and filing an appeal with the chief administrative officer for DOPL. Accordingly, the Committee finds that it does not have jurisdiction to hear Petitioner’s appeal.

ORDER

THEREFORE, IT IS ORDERED THAT this matter be 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 26th day of December 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee