State Records Committee Appeal Decision 2018-53

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL CLÁRA, Petitioner, v.

SALT LAKE CITY MAYOR’S OFFICE Respondent.

DECISION AND ORDER

Case No. 18-53

By this appeal, Petitioner, Michael Clára, seeks access to records allegedly held by Respondent, the Salt Lake City Mayor’s Office.

FACTS

On or about January 11, 2018, Mr. Clára made a records request to the Salt Lake City Mayor’s Office (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Clára requested “copies of the data and information used to reach” the conclusion that a road diet be implemented for 900 West in Salt Lake City. Mr. Clara also requested a fee waiver.

Respondent produced what they believed to be all responsive records to Mr. Clára’s first request, at no cost. This request was not appealed and is not a matter before the Committee. Mr. Clára filed a second request related to the 900 West project on June 28, 2018 and requested a fee waiver. Respondent denied the second request, and Mr. Clára filed an appeal with the Chief Administrative Officer who upheld the denial.
Thereafter, Mr. Clára 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 December 13, 2018, 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).

2. During the hearing, counsel for Respondent argued that all records responsive to Mr. Clára’s first records request have already been provided to him, at no charge, and that it was the second request at issue. Mr. Clára disagreed, indicating that an analysis should have been included as part of the response to his first request, which he believed was in the care and custody of Respondent, and the second request was for clarification of the first.

3. After consideration of the written and oral evidence submitted to the Committee, the Committee concludes that a search of Respondent’s records may provide additional records for Mr. Clára. Accordingly, the Committee instructs Respondent to search for analysis documents responsive to Mr. Clára’s records request, and if any responsive public records are found, to provide them to Mr. Clára.

4. Mr. Clára also argued that he was entitled to a fee waiver for any charges by Respondent for its actual costs in providing additional records. However, it is unclear what costs might be associated with Respondent providing public records to Mr. Clára because it is unknown, at this time, whether any responsive documents exist. Accordingly, the issue of whether a fee waiver should be granted is not yet ripe for consideration by the Committee.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Clára, 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 22nd day of December 2018

BY THE STATE RECORDS COMMITTEE