Open Government

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KELLY PEHRSON, Petitioner, v.

SAN JUAN COUNTY, Respondent.

DECISION AND ORDER

Case No. 19-40

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

FACTS

On or about May 19, 2019, Mr. Pehrson made a request for records to the San Juan County Clerk pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Pehrson requested records relating to quotes provided by San Juan County Commissioner Kenneth Maryboy, attorney Steven Boos, and James Adakai, in a Salt Lake Tribune article and a press release purporting to be from Mr. Adakai. Mr. Pehrson stated that he would be the subject of the records.

In a letter dated May 31, 2019, San Juan County Clerk/Auditor John David Nielson stated that documents were found related to Mr. Pehrson’s records request and attached them to the letter. Mr. Nielson also stated that certain e-mail accounts had been searched for correspondence related to the records request, but noted that other e-mail accounts and phones mentioned in his request were not searched because they were unavailable.

In a letter dated June 20, 2019, Mr. Pehrson filed an appeal with David Everitt, San Juan County Administrator. Mr. Pehrson stated that he hoped that based upon what had been said in the newspaper articles, “that there are more documents that will back their claims.” In a letter dated July 3, 2019, Mr. Everitt stated that no additional records that would be potentially responsive to Mr. Pehrson’s original records request have been identified at this time.

Mr. Pehrson filed an appeal with the State Records Committee (“Committee”) on July 15, 2019. After hearing oral argument and testimony on November 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 states that 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. All records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). After receiving a request for a record, a governmental entity shall notify the requester if it does not maintain the record requested and provide, if known, the name and address of the governmental entity that does maintain the record. Utah Code § 63G-2-204(4)(b)(iii).

2. In the present case, Alex Goble, Deputy San Juan County Attorney, argued that Respondent had turned over all records in the county’s possession to Mr. Pehrson. However, based testimony before the Committee, the Committee was unconvinced that all e-mail accounts had been searched to find all records responsive to Mr. Pehrson’s records request.

3. Accordingly, the Committee believes that an independent search of all accounts including specifically the Commissioner’s and HR director’s e-mail accounts by the county’s Information Technology specialists, may disclose more responsive records. Therefore, Respondent is directed to do another search to determine if records responsive to Mr. Pehrson’s request exist, and provide to Mr. Pehrson also such records that are considered public records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kelly Pehrson, 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 25th day of November 2019.

BY THE STATE RECORDS COMMITTEE

__________________________________________
TOM HARALDSEN, Chair
State Records Committee