State Records Committee Appeal Decision 2018-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JOHN TILLEMAN, Petitioner, v.

OGDEN CITY, Respondent.

DECISION AND ORDER

Case No. 18-09

By this appeal, Petitioner, John Tilleman, seeks access to records allegedly held by Respondent, Ogden City.

FACTS

On June 26, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to Respondent. Petitioner sent numerous pages of information to Respondent and in such information, approximately 34 paragraphs appeared to be separate requests for documents.

After receiving the request, Respondent attempted to determine what records Petitioner had already received from a separate entity addressed in the request and tried to further determine if there was a way to narrow down the request.

On or about August 28, 2017, Petitioner appealed the Respondent’s alleged non-response to the Ogden City Chief Administrative Office (“CAO”) and on October 10, 2017, Respondent confirmed that Petitioner had already been provided a number of records and was informed that no additional witness statements were available other than what was provided. On or about November 22, 2017, the CAO affirmed the Respondent’s denial to provide additional witness statements. The Petitioner subsequently appealed the partial denial of his request to the Ogden City Records Review Board ("Board") on November 13, 2017. The Board issued a decision affirming the partial denial of the Petitioner's request on December 5, 2017.
Thereafter, Petitioner 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. 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 created or maintained for criminal enforcement purposes are protected records not subject to disclosure if properly classified by a governmental entity if release of the records: (1) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source; or (2) Reasonably could be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts. Utah Code § 63G-2-305(10)(d) & (e).

3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).

4. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i). Based upon the written and oral arguments presented by Respondent, the Committee is convinced that Respondent does not possess any records responsive to Petitioner’s request numbers 3, 5, 6, 7, 9-12, 15-19, 21-23, and 25-29.

5. Respondent argued that some of the records responsive to Petitioner’s records request should be classified as protected records pursuant to Utah Code § 63G-2-305(10)(d) & (e), and/or private records pursuant to Utah Code § 63G-2-302(2)(d). Respondent claimed that the records involved records generated by a police investigation which should remain non-public because the records either: (1) Disclosed information regarding the investigation and/or (2) Disclosed personal data of individuals related to the investigation.

6. Respondent brought the records that were responsive to Petitioner’s records request that had not been released to the Petitioner, and the Committee reviewed the records in camera. After having reviewed the records and considering the arguments of the parties, the Committee finds that Petitioner’s request numbers 2, 8, 14, 31, and 34 were properly classified as non-public records pursuant to Utah Code §§ 63G-2-302(d) & -305(10)(d) & (e). The Committee also found that Petitioner’s request numbers 20, 24, and 33 should be considered public records and released to Petitioner. The Committee further found that Petitioner’s request numbers 4, 13, and 32, may be released as public records and released to Petitioner after redactions are made for information contained within the records that is non-public pursuant to Utah Code §§ 63G-2-302(d) & -305(10)(d) & (e). See, Utah Code § 63G-2-308.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, John Tilleman, is GRANTED in part and DENIED in part.

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 20th day of February 2018.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee