State Records Committee Appeal Decision 2020-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ERIC PETERSON, Petitioner, v.

UTAH DEPARTMENT OF NATURAL RESOURCES, Respondent.

DECISION AND ORDER

Case No. 20-16

By this appeal, Petitioner, Eric Peterson, a reporter with the Utah Investigative Journalism Project, seeks access to records held by Respondent, the Utah Department of Natural Resources.

FACTS

On October 29, 2019, Mr. Peterson filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Peterson requested from the Utah Department of Natural Resources (“DNR”) expenditure reports from Big Game Forever from 2015 to the present and any conflict of interest statements filed by Big Game Forever since the organization began receiving Utah state funds. In a letter dated November 12, 2019, the Communications Director for DNR provided some records, but then noted that the subcontractor’s names had been redacted. The letter further stated that Big Game Forever had filed a claim of business confidentiality for the information.

Mr. Peterson filed an appeal with DNR, and in a letter dated December 5, 2019, DNR’s Communications Director on behalf of DNR’s Executive Director, denied Mr. Peterson’s appeal. On December 10, 2019, Mr. Peterson filed an appeal with the State Records Committee (“Committee”). On February 21, 2020, the Committee held a hearing regarding the appeal, and after carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are classified as private, protected, or controlled pursuant to Utah Code §§ 63G-2-302, -303, -304 and -305, are not public records pursuant to Utah Code § 63G-2-301(3)(a).
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.

Commercial information obtained from a person in a record is protected if: (1) Disclosure of the information could reasonable 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.

Counsel for DNR argued that Big Game Forever had requested that the names of subcontractors be protected pursuant to Utah Code §§ 63G-2-305(1) & -305(2) and had provided the necessary information specified in Utah Code § 63G-2-309. Mr. Peterson argued that because of the use of public funds, the interest of the public outweighed the interest in prohibiting access to the public.

After having considered the written and oral arguments of the parties, the Committee finds that the requested records should be classified as public records. The Committee found that this information while not “trade secrets,” was also information that was normally public pursuant to Utah Code §§ 63G-2-301(3)(c). Further, the Committee finds persuasive the argument that there is a public interest in the public obtaining access to information regarding the spending of public funds.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson 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 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 3rd day of March 2020

BY THE STATE RECORDS COMMITTEE

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PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee