State Records Committee Appeal Decision 2018-52

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KIT KOSAKOWSKI, Petitioner, v.

WASATCH COUNTY Respondent.

DECISION AND ORDER

Case No. 18-52

By this appeal, Petitioner, Kit Kosakowski, seeks access to records allegedly held by Respondent, Wasatch County.

FACTS

On or about August 30, 2018, Ms. Kosakowski made a records request to Wasatch County ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Kosakowski requested any and all records relating to questions raised and/or comments made during a September 11, 2017 meeting and a September 20, 2017 public hearing.

In a letter dated September 10, 2018, Respondent granted in part and denied in part Ms. Kosakowski’s request providing some records and denying others pursuant to Utah Code §§ 63G-2-305(17), -305(18), -305(22), and -305(32).

Ms. Kosakowski appealed the denial to the Chief Administrative Officer, and in a letter dated October 8, 2018, the denial was upheld. Thereafter, Ms. Kosakowski filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on December 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 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 that are subject to attorney client privilege are protected records if they are properly classified by a governmental entity. Utah Code § 63G-2-305(17). Additionally, drafts, unless otherwise classified as public records, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(22).

3. After having reviewed the records in camera, the Committee finds that records labeled as 1-4 were drafts and properly classified as protected pursuant to Utah Code § 63G-2-305(22). Additionally, records labeled 5 and 6 were properly classified as attorney client privileged and properly classified as protected pursuant to Utah Code § 63G-2-305(17).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kit Kosakowski 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 22nd day of December 2018

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee