State Records Committee Appeal Decision 2019-44

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 19-44

By this appeal, Petitioner, Steven Onysko, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.

FACTS

On or about June 14, 2019, Mr. Onysko filed a request for records from the Utah Attorney General’s Office (“AGs Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested the call records from April 1, 2018 through June 30, 2018 for a cellphone assigned to the former Civil Chief Deputy of the AG’s Office. In a letter dated July 12, 2019, Lonny J. Pehrson, Government Records Counsel for the AG’s Office, attached thirteen pages of records responsive to Mr. Onysko’s request with some information redacted.

In a letter dated July 13, 2019, Mr. Onysko filed an appeal of Mr. Pehrson’s decision to Utah Attorney General, Sean Reyes. Mr. Onysko believed that there were additional responsive records since the records that were provided contained no records dated after April 14, 2019. Mr. Onysko also requested that he receive all of the records free from redactions. In a letter dated July 30, 2019, Tyler Green, Solicitor General for the AG’s Office, stated that no responsive records after April 14, 2018 had been provided because the former employee “left the office in early April 2018 and ceased using the phone shortly thereafter.” Mr. Green also stated that Mr. Onysko would receive unredacted copies of the records.

On August 29, 2019, Mr. Onysko filed an appeal with the State Records Committee (“Committee”). On December 12, 2019, the Committee held a hearing. After considering the written and oral arguments of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA generally 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. Utah Code § 63G-2-201(1)(a). However, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8).

2. Mr. Pehrson on behalf of the AG’s Office argued that all records responsive to Mr. Onysko’s records request had already been provided to him. Mr. Pehrson stated that upon closer review of Mr. Onysko’s appeal, it became apparent that the AG’s Office should have provided one additional page of the billing record, which was then provided to him on December 5, 2019. Otherwise, all responsive records have been provided by the AG’s Office to Mr. Onysko unredacted.

3. After having reviewed the written and oral arguments of the parties, and the evidence presented at the hearing, the Committee finds that the AG’s Office has fulfilled Mr. Onysko’s records request and that the AG’s Office does not have any other records responsive to his request.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, is 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 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 December 2019.

BY THE STATE RECORDS COMMITTEE

__________________________________________
TOM HARALDSEN, Chair
State Records Committee