State Records Committee Appeal Decision 2018-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MINE SHAFT BREWING PC, Petitioner, v.

SUMMIT COUNTY, Respondent.

DECISION AND ORDER

Case No. 18-06

By this appeal, Petitioner, Mine Shaft Brewing PC, seeks access to records held by Respondent, Summit County.

FACTS

On or about June 26, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records and information relating to the Blue Ribbon Commission. On July 14, 2017, Respondent provided a number of records relating to the request, with some redactions and explanations for said redactions.

Petitioner was unsatisfied with the provided documents and 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 February 8, 2018, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i). In response to an appeal filed with the Committee, the Committee is authorized to: (1) Grant the relief sought, in whole or in part of a records committee appellant; or (2) Uphold the governmental entity’s access denial, in whole or in part. Utah Code § 63G-2-403(11)(a).

2. Summit County argued that all public records responsive to Petitioner’s request had been produced other than aerial maps that were brought to the Committee’s hearing. Summit County voluntarily offered to produce copies of the aerial maps to Petitioner, which would then result in all records responsive to Petitioner’s request being provided by Summit County.

3. Having reviewed Petitioner’s records request and the arguments and testimony of the parties, the Committee is convinced that Summit County has already provided to Petitioner all records that are responsive to their records request, except for aerial maps, which Respondent has agreed to provide. Therefore, the Committee cannot order Summit County to provide records to Petitioner that it does not possess.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mine Shaft Brewing PC, 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 a parties’ 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 20th day of February 2018.

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee