State Records Committee Appeal Decision 2019-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

OGDEN CITY, Respondent.

DECISION AND ORDER

Case No. 19-05

By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Ogden City.

FACTS

On or about September 25, 2018, Mr. Eames made records requests to Ogden City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested, “any and all executed and filed public official penal bonds and any and all subscribed and filed constitutional oaths of office of certain elected and appointed officers…” Said request was addressed to 30 different cities/towns and was not received by the Ogden City Recorder, in error.

On or about October 20, 2018, Mr. Eames appealed the constructive denial to the Records Review Board. On October 25, 2018, Respondent responded to Mr. Eames’ request by providing the records responsive to his request.

Unsatisfied with the Respondent’s response, Mr. Eames filed an appeal with the State Records Committee (“Committee”) indicating that he had been denied access to surety penal bonds and Oaths of Office of Ogden City public officials. After hearing oral argument and testimony from the Respondent on February 14, 2019, and carefully considering the requested relief of the parties, 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 Ogden City has provided all records responsive to Mr. Eames’ records request. However, at the hearing, Ogden City noted that there have been additional Oaths of Office taken since the time of the initial request, and that Ogden City would be happy to provide those records to Mr. Eames.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames 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, Chairperson
State Records Committee