State Records Committee Appeal Decision 2018-29

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. 18-29

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 a hearing was held on June 14, 2018. See, Gollaher v. Morgan County Attorney’s Office, State Records Committee Case No. 18-16 (June 25, 2018). At the request of the parties, the hearing was continued by the Committee. On July 12, 2018, the Committee held a second hearing on this matter. At the request of the parties, the hearing was continued by the Committee. On August 9, 2018, the Committee held a third hearing on this matter. The Committee allowed both parties to address their supplemental responses, and after having considered all arguments presented during both hearings, 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. In response to a records request under GRAMA, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).

3. After having reviewed the written and oral arguments of the parties, and hearing oral testimony at the hearing, the Committee is convinced that Respondent does not have a record that is responsive to Mr. Gollaher’s records request. Respondent provided a sworn declaration of Jann L. Farris, Morgan County Attorney, that Respondent is “not in possession of a record responsive to this appeal” and has given Mr. Gollaher a “full response” to Mr. Gollaher’s records request. Although Mr. Gollaher presented evidence that an e-mail that would be a record responsive to his request was sent to Mr. Farris, Mr. Farris asserted that he may have never received the e-mail. Accordingly, the Committee finds that it cannot order Respondent to provide a record that Respondent asserts does not exist.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher 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 20th day of August 2018

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee