State Records Committee Appeal Decision 2019-26

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LEROY WIRZ, Petitioner, v.

UTAH STATE TAX COMMISSION, Respondent.

DECISION AND ORDER

Case No. 19-26

By this appeal, Petitioner, LeRoy Wirz, seeks access to records held by Respondent, Utah State Tax Commission.

FACTS

On or about March 20, 2019, Mr. Wirz made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to the Motor Vehicle Enforcement Division (“Division”) of the Utah State Tax Commission (“Commission”). Mr. Wirz requested records relating to an investigator’s closing report and findings for a specific case number. In a letter dated March 29, 2019, the Disclosure Officer of the Division stated that she would be able to provide some documents responsive to Mr. Wirz’s records request, but investigation reports including citations, complaints and claims had been classified by the Division as protected records.

On April 8, 2019, Mr. Wirz appealed the denial to the Chief Administrative Officer. In a letter dated April 15, 2019, Scott W. Smith, Executive Director for the Commission, upheld the denial indicating that the records were properly classified as protected pursuant to Utah Code § 63G-2-305(15). Thereafter, Mr. Wirz filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on August 8, 2019, carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. A person has the right to inspect a public record and take a copy of a public record subject to Utah Code §§ 63G-2-203 & 204. Utah Code § 63G-2-201(1). A governmental entity may classify a particular record, record series, or information within a record at any time, but is not required to classify a particular record, record series, or information until access to the record is requested. Utah Code § 63G-2-307(2).

2. At the hearing, counsel for the Commission stated that the investigation which was the subject of the report had closed and there was no longer any need to keep the record from being disclosed to Mr. Wirz. However, the Commission was concerned that release of the records to Mr. Wirz would set a precedent requiring the release of similar records to requesters.

3. A governmental entity is required to conduct a “conscientious and neutral evaluation” of a record’s GRAMA status “without regard to existing designations or classifications.” Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26, ¶24, 182 P.3d 372, 379. Additionally, “[i]f a governmental entity becomes aware that circumstances that contributed to the denial of a record request have changed during the appeal,...the legislative intent and statutory structure of GRAMA requires the entity to reassess the classification of the record and, if appropriate, alter its classification as permitted” by Utah Code § 63G-2-307. Id.

4. Based upon the representations of the Commission’s legal counsel that the Commission is willing to provide the record to Mr. Wirz based upon a change in circumstances (the investigation having concluded), the Committee finds that the record should be provided to Mr. Wirz as allowed by Utah Code §§ 63G-2-201(1), -307, and the Deseret News case.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, LeRoy Wirz, is hereby GRANTED.

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 19th day of August 2019

BY THE STATE RECORDS COMMITTEE

_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee