State Records Committee Appeal Decision 2020-04

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

GARFIELD COUNTY TAXPAYER’S ASSOCIATION, Petitioner, v.

UTAH TAX COMMISSION, Respondent.

DECISION AND ORDER

Case No. 20-04

By this appeal, Petitioner, the Garfield County Taxpayer’s Association, seeks access to records held by Respondent, Utah Tax Commission.

FACTS

In August 2019, Byron Ellis on behalf of the Garfield County Taxpayer’s Association (“Petitioner”) submitted a records request to the Property Tax Division of the Utah State Tax Commission pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested:
[C]opies of the records which were used to calculate Garfield County’s statistics as presented in the 2019 Assessment/Sales Ratio Study. Such records would include the 33 residential and 46 vacant land surveys which were returned to, collected by and used by the Property Tax Division in the calculations…
Pins of the 79 properties and copies of all correspondence between the Property Tax Division and the Garfield County Tax Assessor’s office relating to the 2019 Assessment/Sales Ratio Study, including email, spreadsheets, forms, or written requests.

In a letter dated August 21, 2019, Respondent’s Disclosure Officer rejected Petitioner’s request. Petitioner filed an appeal with Respondent’s Executive Director, Scott W. Smith, who upheld the denial of Petitioner’s request in a letter dated August 28, 2019.
On September 11, 2019, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 9, 2020 and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all 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. Commercial information or nonindividual financial information obtained from a person is a protected record if properly classified by a governmental entity if: (1) Disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future; (2) The person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and (3) The person submitting the information has provided the governmental entity with the information specified in Utah Code § 63G-2-309. Utah Code § 63G-2-305(2)(a-c).

3. Mr. Ellis appearing on behalf of Petitioner, stated that the Garfield County Taxpayer’s Association was formed to help educate citizens of Garfield County concerning the use of taxpayers’ money. Mr. Ellis testified that a review of Garfield County’s assessed values and listed values/actual sale values for properties showed a large discrepancy between the two values. Mr. Ellis argued that obtaining the requested records is necessary in order to allow a determination of how the assessed value of the properties were calculated which form the basis of the property tax rates within Garfield County.
4. Counsel for Respondent argued that the requested records should be considered protected records because they include commercial information gathered from realtors and individuals who have bought or sold a home. Counsel claims that it is reasonable to assume that some of the survey respondents (in particular realtors) do not want this information disclosed because disclosure would impair the governmental entity from obtaining necessary information in the future. See, Utah Code § 63G-2-305(2)(a). Respondent also provided a copy of a contract stating a written claim of business confidentiality by the Wasatch Front Regional Multiple Listing Service, Inc. with Respondent regarding the information.

5. After having carefully considered the written and oral arguments of both parties, the Committee finds that the requested records should be given to Petitioner. Although Utah Code § 63G-2-305(2)(a) provides that a record may be protected if disclosure “would impair the ability of the governmental entity to obtain necessary information in the future,” Utah Code § 63G-2-305(2)(b) provides that there must also be a greater interest in prohibiting access than there is for the public obtaining access. Since the nature of Petitioner’s request is to determine assessed value of properties forming the basis of the Garfield County property tax rates, the Committee finds that Petitioner having access to the requested information concerning the 79 properties is a public interest that is greater than the private interest for non-disclosure.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, the Garfield County Taxpayer’s Association, 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 21st day of January 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee