State Records Committee Appeal Decision 2020-19

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CHAD BENNION, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 20-19

By this appeal, Petitioner, Chan Bennion, seeks access to records held by Respondent, Utah Attorney General’s Office.

FACTS

On or about September 27, 2019, Petitioner submitted a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”) to the Utah Attorney General’s Office (“AG’s Office”). Petitioner requested records regarding “costs, fees, charges, payments, etc.,” “time, costs, or billable hours,” “litigation costs, expenditures, payments” and “request[s] to confer or for consultation” related to Senate Bill 54 Elections Amendments (2014 Sessions) (“SB54”) with an updated time frame from his 2018 request. See also, Bennion v. Utah Attorney Gen.’s Office, State Records Case No. 18-35 (Sept. 24, 2018).

In an initial response dated October 11, 2019, the AG’s Office incorrectly stated that it did not have any records responsive to Mr. Bennion’s request. On November 9, 2019, Mr. Bennion appealed to the AG’s Office’s Chief Administrative Officer, asserting that during a 2018 State Records Committee hearing, the AG’s Office had indicated that it had begun tracking some information relevant to Mr. Bennion’s request. Mr. Bennion also asserted that the initial response “failed to acknowledge additional questions and requests for records.”

On November 26, 2019, Mr. Bennion’s appeal was granted in part and denied in part. Mr. Bennion was provided the requested records from the 2019 request, but the duplicative information from the 2018 request was denied.

Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on April 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. In response to a request for a record, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a).

3. Based on the testimony provided in this matter, the Committee determined that there were no further records subject to Mr. Bennion’s 2019 records request. Accordingly, there is no requirement for the AG’s Office to provide records that it did not have.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Chad Bennion, 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 20th day of April 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH WILLIAMS, Chair Pro Tem
State Records Committee