State Records Committee Appeal Decision 2018-39

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ELIAS FARACLAS, Petitioner, v.

LEHI CITY Respondent.

DECISION AND ORDER

Case No. 18-39

By this appeal, Petitioner, Elias Faraclas, seeks access to records allegedly held by Respondent, Lehi City.

FACTS

On or about January 17, 2018, Mr. Faraclas made a records request to Lehi City (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Faraclas requested, “[a]ll electronic communications, including cell phone text messages, sent and received by Paul Hancock during the city council meeting on 1/16/18….” On January 22, 2018, Respondent granted the request and provided Mr. Faraclas with text communications, labeled as a group chat that “were received in Paul Hancock’s personal capacity as a resident and not as a Council Member” that occurred during the city council meeting.

Mr. Faraclas appealed the response to the Chief Administrative Officer indicating that Respondent “has delivered a response that is easily seen not to be factual in comparison to the other parts of the public record.” In a letter dated March 22, 2018, the Chief Administrative Officer denied the appeal stating that the initial decision of the city recorder was correct.

Thereafter, in an appeal dated April 19, 2018, Mr. Faraclas filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on October 11, 2018, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code §63G-2-201(2). Records that are private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).

2. A “record” under GRAMA includes electronic data “regardless of physical form or characteristics” (1) That is prepared, owned, received, or retained by a governmental entity or political subdivision; and (2) Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a). A record does not mean a personal note or personal communication prepared or received by an employee or officer of a governmental entity: (1) In a capacity other than the employee’s or officer’s governmental capacity; or (2) That is unrelated to the conduct of the public’s business. Utah Code § 63G-2-103(22)(b)(i).

3. Similarly, the Utah Legislature passed the Open and Public Meetings Act (“OPMA”) because political subdivisions exist to “conduct…the people’s business.” Utah Code § 52-4-102(1). Accordingly, the Legislature through OPMA requires the state, its agencies, and its political subdivisions to: (1) Take their actions openly; and (2) Conduct their deliberations openly. Utah Code § 52-4-102(2).

4. Mr. Faraclas argued that the purpose of his records request is to determine what the Lehi City Council members were texting about during city council meeting. Mr. Faraclas contended that the public has a right to know about communications received by city council members during the meeting if they concern the public’s business.

5. The respondent indicated that a review of Councilman Hancock’s text messages received during the meeting revealed that some of the content of the messages was relevant to the city’s business.

6. After having reviewed the written arguments of the parties and considering the oral arguments presented during the hearing, the Committee finds that Respondent should release to Mr. Faraclas those text messages responsive to the records request. These messages should be considered “records” under GRAMA and should be disclosed if they concern “the public’s business.” See also, Cromar v. City of Cedar Hills, State Records Committee Case No. 12-11 (June 26, 2012).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Elias Faraclas, is GRANTED.

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 26th day of October 2018

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee