State Records Committee Appeal Decision 2019-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SCOTT GOLLAHER, Petitioner, v.

MORGAN COUNTY Respondent.

DECISION AND ORDER

Case No. 19-03

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. Mr. Gollaher did not receive a response from the Respondent and filed an appeal with the State Records Committee (“Committee”).

A hearing was held on January 10, 2019 where the Committee considered the written materials, testimony, and oral arguments. The Committee ordered that the matter be continued until the next scheduled Committee meeting so that Respondent had the opportunity to respond to Mr. Gollaher’s records request. See, Gollaher v. Morgan Cty., State Records Committee Order No. 19-01 (Jan. 17, 2019).

The matter was heard again on February 14, 2019. 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). However, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).

2. After considering all evidence presented to the Committee, the Committee finds that Morgan County has provided all records responsive to Mr. Gollaher’s records request.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher 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 25th day of February 2019.

BY THE STATE RECORDS COMMITTEE

__________________________________________
TOM HARALDSEN, Chair
State Records Committee