State Records Committee Appeal Decision 2019-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BILL KESHLEAR, Petitioner, v.

SAN JUAN COUNTY, Respondent.

DECISION AND ORDER

Case No. 19-15

By this appeal, Petitioner, Bill Keshlear, seeks access to records allegedly held by Respondent, San Juan County, Utah.

FACTS

On or about February 6, 2019, Mr. Keshlear made a request for records to the San Juan County Clerk (“AG’s Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Keshlear requested records related to a meeting of the San Juan County Commission on February 5, 2019. Mr. Keshlear stated in his request that the records “would offer insight into the policymaking apparatus of the current San Juan County Commission.” In a letter dated February 26, 2019, John David Nielson, San Juan County Clerk/Auditor, stated that all records responsive to Mr. Keshlear’s request were included with the letter.

Mr. Keshlear filed an appeal to the Chief Administrative Officer for San Juan County, Kelly Pehrson. Mr. Keshlear stated that he believed San Juan County had in effect denied access to the requested records because no records were included with the letter from Mr. Nielson. In a letter dated March 11, 2019, Mr. Pehrson stated that the “resolutions you received are the only documents that my office was given” after he had reached out to the county’s departments regarding Mr. Keshlear’s records request.
On March 14, 2019, Mr. Keshlear filed an appeal with the State Records Committee (“Committee”). After reviewing the written arguments of the parties and hearing oral argument and testimony at a hearing held on June 13, 2019, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Generally a 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). The definition of a record includes documents and electronic data that is prepared, owned, received, or retained by a governmental entity or political subdivision and where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a). A public employee who intentionally refuses to release a record, the disclosure of which the employee knows is required by a final unappealable order from the State Records Committee, is guilty of a class B misdemeanor. Utah Code § 63G-2-801(3)(c).

2. In the present case, the Committee was unconvinced that all records responsive to Mr. Keshlear’s records request had been provided to him. The evidence seems to show that the responsive records may include attorney-client privileged communication of County Commission Officials, which would need to be reviewed prior to being released to Mr. Keshlear in order to determine whether the records should be classified as protected non-public records. See, Utah Code § 63G-2-305(17).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Bill Keshlear, is GRANTED. Respondent, San Juan County, is ordered to review its records to determine what records are responsive to Mr. Keshlear’s February 6, 2019 records request, and then subject to the provisions of GRAMA. allow Mr. Keshlear the right to inspect and take a copy of the records.

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 24th day of June 2019.

BY THE STATE RECORDS COMMITTEE

__________________________________________
TOM HARALDSEN, Chair
State Records Committee