State Records Committee Appeal Decision 2018-17

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

TAX ANALYSTS, Petitioner, v.

UTAH STATE TAX COMMISSION, Respondent.

DECISION AND ORDER

Case No. 18-17

By this appeal, Petitioner, Tax Analysts seeks access to records held by Respondent, the Utah State Tax Commission.

FACTS

On November 8, 2017, Petitioner made the following records request to Respondent:
All field audit manuals and audit training manuals that were used by your agency from January 1, 2011 to the present in the formats (electronic or otherwise) in which they are maintained. This request covers not only manuals that are designated as such, but also training materials or continuing education materials related to audits.

In a letter dated November 15, 2017, Dolores Furniss, Disclosure Officer for Respondent, stated that the “information that you are seeking is classified as ‘protected’ under Utah Code § 63G-2-305(15), therefore, disclosure of this information is prohibited.”

In a letter dated December 4, 2017, Chuck O’Toole, Senior Executive Editor with Petitioner, filed an appeal with Barry C. Conover, Executive Director for Respondent. Mr. O’Toole wrote that there is no public interest in restricting access to the record, and that the interests favoring access exceed the interest favoring restricting access. Mr. O’Toole noted that Petitioner had received “similar manuals and materials from a number of other states, and these records have been produced in their entirety.” In a letter dated December 19, 2017, Mr. Conover upheld Ms. Furniss’ denial of Petitioner’s records request.

Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on June 14, 2018, and carefully considering the requested relief of the parties, the Committee 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 and audit workpapers that identify audit, collection, and operational procedures and methods used by the State Tax Commission, if disclosure would interfere with audits or collections, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(15).

3. Respondent argued that “[r]elease of the Tax Commission’s audit manuals would interfere with audits and collections.” At the hearing, counsel for Respondent presented testimony from Craig Sandberg, director of the auditing division for Respondent. Mr. Sandberg testified that release of information within the manuals would interfere with Respondent’s audit process, and that approximately 61% of the manual would have to be redacted in order to allow release of information that would be considered public information.

4. After having considered the written and oral arguments of the parties, the Committee finds that the requested records were properly classified as protected pursuant to Utah Code § 63G-2-305(15). The Utah Legislature specifically carved out a provision within GRAMA that applies specifically to Respondent’s records that “identify audit, collection, and operational procedures and methods used by the State Tax Commission.” Id. Respondent provided evidence that release of these manuals would interfere with audits or collections. Accordingly, the Committee is persuaded that these records should remain non-public records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Tax Analysts, 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. 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