State Records Committee Appeal Decision 2019-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

EDWARD A. BERKOVICH, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 19-06

By this appeal, Petitioner, Edward A. Berkovich, seeks access to records held by Respondent, Utah Attorney General’s Office.

FACTS

On or about November 6, 2018, Mr. Berkovich made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Berkovich requested the “freeconferencecall.com” recording of a Utah Prosecution Council (UPC) Board meeting held on October 21, 2015 to discuss the “character, professional competence, or physical or mental health” of himself and his continued employment with UPC. Respondent notified Mr. Berkovich that the portion of the recording being requested was during the closed portion of the meeting that the recording was properly classified as a protected record pursuant to Utah Code § 63G-2-305(32).

Mr. Berkovich appealed to the Chief Administrative Officer (“CAO”) for Respondent and on or about January 2, 2019, Solicitor General Tyler Green, acting as CAO, upheld the denial. Mr. Berkovich filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on March 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. The Government Records Access and Management Act (“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). “[A]ll 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. Transcripts, minutes, recordings, or reports of the closed portion of a meeting of a public body are protected records if properly classified except as provided in Utah Code § 52-4-206. Utah Code § 63G-2-305(32).

3. The Open and Public Meetings Act (“OPMA”) similarly states that a recording, transcript, report, and written minutes of a closed meeting are protected records under GRAMA except that the records may be disclosed under a court order only as provided under Utah Code § 52-4-304. Utah Code § 52-4-206(5). A judge shall publicly disclose or reveal from the recording or minutes of the closed meeting all information about the portion of the meeting that was illegally closed if the judge determines that the public body violated specific provisions of OPMA regarding closed meetings,. Utah Code § 52-4-304(2)(b).

4. After having reviewed all the evidence including arguments presented during the hearing, the Committee finds that Respondent properly classified the requested records as protected records pursuant to Utah Code § 63G-2-305(32).

5. Mr. Berkovich requested the Committee to consider the weighing provision found in Utah Code § 63G-2-403(11)(b) which allows the Committee upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as protected “if the public interest favoring access is greater than or equal to the interest favoring restriction of access.”

6. The Committee after considering the public interest of the release of the records compared with the interest favoring restriction of access, finds that the interest favoring restriction of access outweighs the public interest favoring release of the records. The Committee has determined that the interest argued by Mr. Berkovich for releasing the records is more of a private interest of Mr. Berkovich obtaining records related to him personally as opposed to a general public interest in the records. Therefore, the Committee finds that the weighing provision is not relevant to the present case and the properly classified records should not be released to Mr. Berkovich. See also, Poll v. S. Weber City, State Records Case No. 02-01 (Jan. 14, 2002).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Edward A. Berkovich, is hereby 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 March 2019

BY THE STATE RECORDS COMMITTEE

_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee