State Records Committee Appeal Decision 2019-33

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KIM HENDERSON, Petitioner, v.

SAN JUAN COUNTY. Respondent.

DECISION AND ORDER

Case No. 19-33

By this appeal, Petitioner, Kim Henderson, seeks access to records allegedly held by Respondent, San Juan County.

FACTS

On April 3, 2019, Ms. Henderson made a records request to the San Juan County Clerk pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Henderson requested, “[a]ll communication between Kenneth Maryboy, Steve Boos and R. Atene (Lady next to Boos) during SJC Commission Meeting on April 2, 2019 from 9am to 1:30 pm (txt email)”

In a letter to Ms. Henderson dated April 9, 2019, John David Nielson, San Juan County Clerk/Auditor stated that “I do not have any records of any emails and/or texts that occurred during the April 2, 2019 Commission meeting…” Mr. Nielson also attached a letter from attorney Steven C. Boos, who stated that he represents Commissioner Maryboy and that “my communications with my clients and my fellow attorneys are not subject to disclosure under GRAMA.”

On May 8, 2019, Ms. Henderson appealed the decision to the San Juan County Commissioners, stating that “I do not feel that communication between San Juan County commissioners and Mr. Boo’s is subject to ‘attorney client privilege’ when the subject pertains to SJC business, especially if communication[s] are taking place during a commission work meeting/meeting.” David Everitt, Interim County Administrator for San Juan County, replied to Ms. Henderson’s appeal in a letter dated May 29, 2019. Mr. Everitt stated that because “the information you requested is subject to the attorney client privilege, the denial is upheld.”

Ms. Henderson filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 12, 2019 now 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. A “Record” is defined by GRAMA to mean a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics: (1) That is prepared, owned, received, or retained by a governmental entity or political subdivision; and (2) 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).

3. A governmental entity may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of a person to inspect and receive a copy of a record under GRAMA. Utah Code § 63G-2-201(13).

4. Records that are subject to the attorney client privilege are protected non-public records if properly classified by a governmental entity. Utah Code § 63G-2-305(17).

5. In Respondent’s written arguments, Kendall G. Laws, San Juan County Attorney, stated that Respondent “has turned over all records in the County’s possession to Petitioner.” Mr. Laws further stated that based upon the letter from Mr. Boos “that there are other documents that may or may not be records under the definition of ‘records’” in GRAMA. During the hearing, Mr. Laws stated that he had reviewed San Juan County’s procedure for searching and locating responsive records, and that the result of the search indicated that there were no more records responsive to Ms. Henderson’s request. Mr. Everitt testified that he asked Commissioner Maryboy whether any records existed that were responsive to Ms. Henderson’s request, and was told that he did not have any responsive records.

6. Ms. Henderson argued that based upon the letter from Mr. Boos, that records did exist since he asserted attorney-client privilege for the records. Ms. Henderson also asserted that the records must exist because she could see Commissioner Maryboy and Mr. Boos texting during the April 2, 2019 San Juan County Commission meeting.

7. Based upon the oral and written arguments of the parties, the Committee is not convinced that Respondent does not possess records that are responsive to Ms. Henderson’s records request. It is reasonable to conclude that Commissioner Maryboy was texting individuals during the April 2, 2019 public San Juan County Commission meeting, and since the texts could have been created by Commissioner Maryboy in his public capacity as a Commissioner for San Juan County, as opposed to his capacity as a private individual, the text messages may be considered “records” under GRAMA pursuant to Utah Code § 63G-2-103(22)(a).

8. Accordingly, Respondent should seek to obtain the text messages from Commissioner Maryboy and make a determination whether: (1) The text messages are considered “records” pursuant to Utah Code § 63G-2-103(22)(a); and (2) The text messages should be classified as public or non-public records under GRAMA, including whether the messages would be considered “protected” records pursuant to Utah Code § 63G-2-305(17). Given the Legislative declaration of public policy stated in Utah’s Open and Public Meetings Act (“OPMA”) that political subdivisions “take their actions openly” and “conduct their deliberations openly,” it would be inappropriate for a public official to attempt to circumvent the requirements of OPMA and GRAMA by using a private device while “conduct[ing] the people’s business.” See, Utah Code §§ 52-4-102 & 63G-2-102(1).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kim Henderson, 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities. Utah Code § 63G-2-403(15)(d)(i). 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 23rd day of September 2019.

BY THE STATE RECORDS COMMITTEE

__________________________________________
TOM HARALDSEN, Chair
State Records Committee