State Records Committee Appeal Decision 2018-36

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RAPHAEL CORDRAY, Petitioner, v.

UTAH SCHOOL AND INSTITUTIONAL TRUST LANDS ADMINISTRATION (SITLA). Respondent.

DECISION AND ORDER

Case No. 18-36

By this appeal, Petitioner, Raphael Cordray, seeks access to records allegedly held by Respondent, the Utah School and Institutional Trust Lands Administration.

FACTS

On or about February 1, 2018, Petitioner made a records request to the Utah School and Institutional Trust Lands Administration ("SITLA"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records pertaining to a retreat held by SITLA Board of Trustees in January 2018.

Respondent produced a number of records relating to the request but indicated that some records were withheld because they were classified as “protected” pursuant to Utah Code § 63G-2-305. Petitioner appealed the denial to Dave Ure, Director of SITLA. In response to the appeal, SITLA provided additional records by letter dated March 21, 2018, and denied other requests indicating again that they were classified as “protected” pursuant to Utah Code § 63G-2-305.

Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on September 13, 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 disclosure of a record to which access is governed or limited pursuant to another state statute is governed by the specific provisions of that statute insofar as GRAMA is not inconsistent with the statute. Utah Code § 63G-2-201(6).

2. The records that are the subject of this appeal are records associated with a closed meeting of SITLA. According to the Open and Public Meetings Act (“OPMA”), transcripts, minutes, or reports of the closed portion of a meeting of a public body are protected records if properly classified by a governmental entity except as provided in Utah Code § 52-4-206. Utah Code § 63G-2-305(32). A recording, transcript, report, and written minutes of a closed meeting are protected records under GRAMA “except that the records may be disclosed under a court order only as provided under Section 52-4-304.” Utah Code § 52-4-206(5).

3. In Chapman v. Salt Lake City Corp., State Records Case No. 17-18 (May 22, 2017), the Committee held that it “does not have the authority to release the requested records pursuant to Utah Code § 52-4-206(5).” The Committee found that there is a “Legislative intent to limit disclosure of closed meeting records only through court action, and not through the State Records Committee.” Id. Subsequent to the Committee’s decision in Chapman, the Legislature amended Utah Code § 52-4-304 to also allow “a public body to reclassify a record…as provided in Section 63G-2-307.” Utah Code § 63G-2-304(3). Utah Code § 63G-2-307 allows a governmental entity to “redesignate a record series or reclassify a record or record series, or information within a record at any time.” Utah Code § 63G-2-307(3).

4. After having considered the arguments and testimony presented by the parties, the Committee finds that it does not have the authority to order release of records associated with a closed meeting. Records associated with a closed meeting may only be released through a court order pursuant to Utah Code § 52-4-304, or through a reclassification of the records by the governmental entity pursuant to Utah Code § 63G-2-307.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Raphael Cordray 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 _24_ day of September 2018

BY THE STATE RECORDS COMMITTEE

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HOLLY RICHARDSON, Chair Pro Tem
State Records Committee