State Records Committee Appeal Decision 2019-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SCOTT GOLLAHER, Petitioner, v.

MORGAN COUNTY Respondent.

DECISION AND ORDER

Case No. 19-01

By this appeal, Petitioner, Scott Gollaher, seeks access to records allegedly held by Respondent, the Morgan County.

FACTS

On September 5, 2018, Mr. Gollaher made a records request to the Morgan County Clerk/Auditor pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested records relating to Certificates of Insurance, payments and/or invoices and/or any accounting records relating to specific persons doing business with Respondent, Morgan County. No response was given by Respondent to Mr. Gollaher’s records request.

In a letter dated October 5, 2018, Mr. Gollaher filed an appeal to the Morgan County Chief Administrator, Ned Mecham, Council Chair for Morgan County. Again, no response was provided to Mr. Gollaher. Thereafter, Mr. Gollaher filed an appeal with the State Records Committee (“Committee”). On December 13, 2018, the Committee held a hearing. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments presented to the Committee. After having considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1).

2. A governmental entity is not required to respond to, or provide a record in response to, a record request if the request is submitted by or in behalf of an individual who is confined in a jail or other correctional facility following the individual’s conviction. Utah Code § 63G-2-201(9)(a). However, this restriction does not apply to: (1) The first five record requests submitted to the governmental entity by or in behalf of an individual described in -201(9)(a) during any calendar year; or (2) A record request that is submitted by an attorney of an individual described in -201(9)(a). Utah Code § 63G-2-201(9)(b).

3. Respondent argues pursuant to Utah Code § 63G-2-201(9)(a) & -201(9)(b), that it was not required to respond to or provide a record in response to Mr. Gollaher’s records request because he is an individual who is confined in a jail or other correctional facility and he has already made five records requests to Morgan County in 2018. Mr. Gollaher argued that his previous records requests were made to the Morgan County Sheriff’s Office and therefore, should not be counted as records requests to Morgan County because county and the sheriff’s offices should be considered different governmental entities.

4. Utah Code § 63G-2-201(9)(b)(i) uses the wording “the first five record requests submitted to the governmental entity…” (Emphasis added). Both Morgan County and the Morgan County Sheriff’s Department would be considered “governmental entities” as defined by GRAMA in Utah Code § 63G-2-103(11). Morgan County is a political subdivision of the state as defined in Utah Code § 63G-2-103(11)(a)(v). However, Morgan County Sheriff’s Department is also considered a governmental entity, but as defined by Utah Code § 63G-2-103(11)(b)(i) which states that governmental entity also means “every office, agency, board, bureau, committee, department, advisory board, or commission of an entity listed in [Utah Code § 63G-2-103(11)(a)] that is funded or established by the government to carry out the public’s business.” During the hearing, evidence was also presented that Morgan County and the Morgan County Sheriff’s Office handle records requests separately.

5. After having reviewed the arguments and evidence presented by the parties, the Committee finds that as applied to Utah Code § 63G-2-201(9), Morgan County and the Morgan County Sheriff’s Department should be considered separate governmental entities. Mr. Gollaher making records requests of the Morgan County Sheriff’s Department does not limit the number of requests he can make with Morgan County. Although Morgan County is a county, this same reasoning could be applicable to records requests being made of offices, agencies, boards, bureaus, committees, departments, advisory boards, or commissions of the State of Utah. Accordingly, the Committee finds that Respondent should have responded to Mr. Gollaher’s records request.

6. Since Respondent has not had the opportunity to review the records that would be responsive to Mr. Gollaher’s records request to determine whether they are public or non-public records under GRAMA, this matter is continued until the next scheduled Committee meeting.

ORDER

THEREFORE, IT IS ORDERED THAT the hearing on the merits of Petitioner’s appeal be CONTINUED to the next scheduled Committee hearing.

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 17th day of January 2019.

BY THE STATE RECORDS COMMITTEE

__________________________________________
TOM HARALDSEN, Chair
State Records Committee