State Records Committee Appeal Decision 2020-24

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARK GAJKOWSKI, Petitioner, v.

UTAH STATE TAX COMMISSION, Respondent.

DECISION AND ORDER

Case No. 20-24

By this appeal, Petitioner, Mark Gajkowski, seeks access to records held by Respondent, Tax Commission.

FACTS

On October 10, 2019, Mr. Gajkowski filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) with Respondent. Mr. Gajkowski requested all investigation documents, officer notes, and reports regarding a specific investigation case. Mr. Gajkowski noted that he was the subject of the records. In a letter dated October 21, 2019, the Executive Director for Respondent denied Mr. Gajkowski’s request stating that investigative reports including citations, complaints, and claims are classified as protected records pursuant to Utah Code § 63G-2-305(10) and -305(15). Mr. Gajkowski filed an appeal of this decision, which was denied in a letter dated December 12, 2019 by Respondent.

Mr. Gajkowski filed an appeal with the State Records Committee (“Committee”). Prior to hearing the case, Respondent provided documents to Mr. Gajkowski because the investigation had closed and the file could be provided to him with appropriate redactions. On June 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After 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. At the hearing, counsel for Respondent argued that all records responsive to Mr. Gajkowski’s records request in the control of Respondent had been provided. Counsel noted that some records were records of the Utah Department of Public Safety through its Bureau of Criminal Identification and Driver License Divisions, and therefore, could not be provided by Respondent. Counsel also noted that some redactions had occurred for documents that contained third party or personally identifying information pursuant to Utah Code §§ 63G-2-305(51), 41-1a-116, and Driver’s Privacy Protection Act (DPPA).

3. After considering the arguments and evidence presented by the parties, the Committee finds that all public records possessed by Respondent in response to Mr. Gajkowski’s records request have been produced with appropriate redactions for third party or personally identifying information.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Gajkowski, 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 19th day of June 2020.

BY THE STATE RECORDS COMMITTEE

KENNETH WILLIAMS, Chair Pro-Tem
State Records Committee