State Records Committee Appeal Decision 2020-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CATHRYN RAPHAEL CORDRAY, Petitioner, v.

SEVEN COUNTY INFRASTRUCTURE COALITION, Respondent.

DECISION AND ORDER

Case No. 20-05

By this appeal, Petitioner, Cathryn Raphael Cordray, seeks access to records held by Respondent, the Seven County Infrastructure Coalition.

FACTS

On July 30, 2019, Ms. Cordray submitted a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Cordray requested records relating to the Uinta Basin Railroad Project. Respondent did not send Ms. Cordray a timely response to her records request. On August 10, 2019, Ms. Cordray submitted an appeal to Michael J. McKee, Executive Director for Respondent based upon Respondent’s “response to an unanswered and or denied GRAMA request.”

In a letter dated August 13, 2019, Mr. McKee granted in part and denied in part, Ms. Cordray’s appeal, providing copies of two of the requested studies regarding the Uintah Basin Railroad Project, but denying access to the “Private Energy Producer 2017 Uintah Basin Railroad Study.” Mr. McKee stated that this study was classified as a protected record pursuant to Utah Code § 63G-2-305(1) & (2).

Ms. Cordray 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. 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. Trade secrets as defined in Utah Code § 13-24-2, are protected records if properly classified by a governmental entity if the person submitting the trade secret has provided the governmental entity with the information specified in Utah Code § 63G-2-309. Utah Code § 63G-2-305(1).

3. Commercial information or nonindividual financial information obtained from a person are protected records 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).

4. Utah Code § 63G-2-309(1)(a)(i) requires the person who believes that the record should be protected under either Utah Code § 63G-2-305(1) or (2) to provide with the record: (1) A written claim of business confidentiality; and (2) A concise statement of reasons supporting the claim of business confidentiality.

5. Respondent provided a copy of a Mutual Confidentiality and Non-Disclosure Agreement between Respondent and the “Private Energy Producer” that provided the requested Uintah Basin Railroad Study to Respondent. The Agreement stated that the Private Energy Producer claims business confidentiality under both Utah Code § 63G-2-305(1) and (2) because disclosure of the Agreement would reveal “trade secrets and confidential commercial information the disclosure of which could reasonabl[y] be expected to result in harm or injury to the competitive interests” of the Producer. Respondent’s counsel argued that the study was provided to Respondent based upon the promise that it would be classified and maintained as confidential and protected, without which Respondent “would [n]ever have received a copy of the private rail study.” Additionally, Respondent noted that the study had not been funded by public funds.

6. Having reviewed the written and oral arguments provided to the Committee, the Committee finds that the Agreement between Respondent and the Private Energy Producer complies with the requirements of Utah Code § 63G-2-308. Accordingly, the Committee finds that Respondent properly classified the “Private Energy Producer 2017 Uintah Basin Railroad Study” as a protected record pursuant to Utah Code § 63G-2-305(1) & (2).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Cathryn Raphael Cordray, is hereby 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. 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