State Records Committee Appeal Decision 2018-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SCOTT GOLLAHER, Petitioner, v.

MORGAN COUNTY ATTORNEY’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 18-16

By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, the Morgan County Attorney’s Office.

FACTS

On or about February 5, 2018, Mr. Gollaher made a records request to the Morgan County Attorney’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested “[a]ll communications, billing records received and payments made to, from or concerning [a specific individual] and [an Appellate and District Case No.] from March 1, 2016 to the date of reply to this request, including but not limited to email, invoices, payment records, transmittals, etc. by and employee/official of Morgan County.” In response to the request, Respondent provided six pages of records.

In a letter dated February 26, 2018, Mr. Gollaher appealed the response to Ned Mecham, the Morgan County Council Chair and designated Chief Administrative Officer. Mr. Gollaher stated that he believed detailed records were being withheld from him, and requested that any record being withheld as privileged, “please identify that record, the date of that record, the subject matter of that record, and Mr. Farris’s presumption of privilege.” No response was given by Mr. Mecham, and Mr. Gollaher deemed the failure to provide a response to be a decision affirming the access denial pursuant to Utah Code § 63G-2-401(5)(b)(i).

Mr. Gollaher filed an appeal with the State Records Committee (“Committee”), and on June 14, 2018, a hearing was before the Committee where the parties were allowed to present their legal arguments. After reviewing all materials presented to the Committee and considering the evidence presented at the hearing, 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. Based upon the arguments made by the parties, the Committee concludes that in order to make a determination whether Mr. Gollaher’s records request has been fulfilled, further documentation is needed including copies of records that could be responsive to Mr. Gollaher’s records request. Accordingly as agreed upon by the parties, the Committee finds that it is necessary to continue the present case to the next scheduled Committee hearing in order to allow Respondent to provide records to the Committee for an in camera review as required by Utah Admin. Code R. 35-1-2(5) (“The governmental entity must bring the disputed records to the hearing to allow the Committee to view records in camera if it deems an in camera inspection necessary.”).

ORDER

THEREFORE, IT IS ORDERED THAT the present hearing is CONTINUED to a later date to allow the Committee to properly review the disputed records.

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. Utah Code § 63G-2-403(15)(d)(i)(B). 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 _25__ day of June 2018

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee