State Records Committee Appeal Decision 2018-28

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LEONARD PLATT, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 18-28

By this appeal, Petitioner, Leonard Platt seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.

FACTS

On or about January 29, 2018, Petitioner made a records request to the Utah Attorney General’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested “[a]ny and all records pertaining to the investigation of all allegations of criminal conduct committed by Chad Lester Platt from January 1, 2012 to May 9, 2016.” Petitioner stated that he was “the brother of Chad Lester Platt, who is deceased and the executor of his will and estate.”

On February 8, 2018, Assistant Attorney General Lonny J. Pehrson stated in a letter to Petitioner that because of an ongoing investigation, “all records related to the open investigation are currently classified as protected pursuant to Utah Code § 63G-2-305(10)(a)-(d).” Petitioner filed an appeal with Utah Attorney General Sean Reyes. In a letter dated March 12, 2018, Tyler Green, Respondent’s Chief Administrative Officer, denied the appeal stating, “there is still an ongoing investigation which includes various forensic examinations of a computer belonging to Chad Lester Platt.” Mr. Green stated that during the time of the open investigations, “all records associated with the investigation will be classified as protected under Utah Code § 63G-2-305(10).”

Petitioner filed an appeal with the State Records Committee (“Committee”) and a hearing was held on June 14, 2018. At the hearing, counsel for Respondent indicated that the investigation was now closed, and that Petitioner had been provided 1,137 pages of records and four video files responsive to his records request. See, Platt v. Utah Attorney General’s Office, State Records Committee Case No. 18-18 (June 25, 2018). Respondent also provided a Classification Log describing all potentially responsive records, whether they were being provided, and the grounds for any redactions to the records provided. However, Petitioner had not had an opportunity to review the records in order to determine if the records request had been fulfilled. Accordingly, the parties agreed to continue the hearing to allow an opportunity to review the records and determine whether Respondent fulfilled Petitioner’s records request.

On June 29, 2018, Counsel for Petitioner filed a statement with the Committee regrading alleged deficiencies in Respondent’s response to the records request. Counsel argued that the Committee should order Respondent to provide 53 other records referenced in the 1,137 pages of records that had been provided.

On July 10, 2018, Respondent provided a response to the Committee regarding the alleged deficiencies raised by Petitioner. Respondent argued that the 53 additional items or types of records were beyond the scope of the original records request and was now treating them as a new records request, which Respondent “has already begun processing them as such.” Respondent stated that it should have the opportunity to properly evaluate and process the new requests and have the initial response reviewed by Respondent’s chief administrative officer if Petitioner disagrees with Respondent’s response.

On July 12, 2018, the Committee held a second hearing on this matter. The Committee allowed both parties to address their supplemental responses filed after the previous hearing. After having considered all written arguments submitted by the parties and oral arguments presented during both hearings, the Committee now issues the following Decision and Order:

STATEMENT OF REASONS FOR DECISION

1. Every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 and 63G-2-204. Utah Code § 63G-2-201(1).

2. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with reasonable specificity. Utah Code § 63G-2-204(1)(b).

3. Generally, after receiving a request for a record, a governmental entity shall approve the request and provide a copy of the record or deny the request in accordance with the procedures and requirements found in Utah Code § 63G-2-205. Utah Code § 63G-2-204(3)(a)(i) & (ii).

4. A requester may appeal an access denial by a governmental entity to the chief administrative officer of the governmental entity. Utah Code § 63G-2-401(1)(a). If the decision of the chief administrative officer of a governmental entity is to affirm the denial of a record request, the requester may either (1) Appeal the decision to the Committee pursuant to Utah Code § 63G-2-403; or (2) Petition for judicial review of the decision in district court pursuant to Utah Code § 63G-2-404. Utah Code § 63G-2-402(1)(a).

5. This appeal presents an interesting issue because the basis for the denial of access to records (records related to the open investigation were currently classified as protected pursuant to Utah Code § 63G-2-305(10)) ended shortly before a hearing was held before the Committee. Respondent attempted to comply with the records request prior to the hearing by giving Petitioner 1,137 pages of records and four video files. Recognizing the difficulty of Petitioners being able to properly determine whether Respondent complied with the records request, the Committee allowed the parties to have a continuance of the hearing until July 12, 2018.

6. Petitioner indicated in his June 29, 2018 statement that he believed there were deficiencies in Respondent’s response to the records request. Respondent indicated in its July 10, 2018 response that all records had been provided to Petitioner and that the 53 alleged deficiencies were actually new records requests and would be processed in a timely manner.

7. The Committee is persuaded by Respondent’s argument regarding the 53 alleged deficiencies, and finds that they are new records requests and therefore, are not subject to the present appeal. The Committee agrees with Respondent’s opinion that it should have the opportunity to evaluate and process the 53 requests and have the initial response reviewed by Respondent’s chief administrative officer if Petitioner disagrees with Respondent’s response. Because of this finding, both parties will still have an opportunity to evaluate the additional 53 requests and make determinations that would allow a future appeal to the Committee regarding any of the 53 requests, if Petitioner is dissatisfied with Respondent’s response.

8. Accordingly, the Committee finds that Petitioner’s January 29, 2018 request for records is granted because the reason for the records being protected pursuant to Utah Code § 63G-2-305(10) no longer exists. Additionally, the Committee is persuaded that Respondent has provided all records responsive to Petitioner’s records request. However, Petitioner’s appeal regarding the 53 alleged deficiencies in Petitioner’s June 29, 2018 response is denied because the Committee finds that these 53 items should be construed as new records requests.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Leonard Platt 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 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 23rd day of July 2018

BY THE STATE RECORDS COMMITTEE

__________________________________________
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee