State Records Committee Appeal Decision 2020-38

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v.

DEPARTMENT OF WORKFORCE SERVICES. Respondent.

DECISION AND ORDER

Case No. 20-38

By this appeal, Petitioner, the Center for Biological Diversity, seeks access to records allegedly held by Respondent, the Department of Workforce Services.

FACTS

In a letter dated October 14, 2019, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records from the Utah Department of Workforce Services, Utah Permanent Community Impact Fund Board (“CIB”). The requested records related to the Uinta Basin Railway including its funding and communications by CIB. Petitioner also requested a fee waiver because “the disclosure of the requested information is in the public interest and will contribute significantly to public understanding of CIB’s activities as they relate to the Railway.”

On November 5, 2019, Respondent notified Petitioner that it would take 4-5 weeks to compile the records. Respondent also stated that the request for a fee waiver was being denied, provided the approximate cost to fulfill the records request, and in consideration of the public interest in the records, would be willing to waive 50% of the cost of production of the requested records.

In a letter dated November 13, 2019, Petitioner submitted an appeal of the fee waiver denial, but expressed a willingness to pay the associated fees with the request but “under protest.” On November 29, 2019, Jon Pierpont, Executive Director for Respondent, denied the request for a fee waiver and affirmed that Respondent was willing to reduce the fees by 50%. The parties continued to correspond concerning the progress of the production of the records. However, in a letter dated April 14, 2020, Petitioner stated that it was appealing Respondent’s “constructive denial” of the records request because Petitioner failed to provide responsive records within the specified time periods.

Petitioner filed an appeal with the State Records Committee (“Committee”) through a letter dated May 7, 2020. On August 27, 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. Respondent argued that the records should be protected pursuant to Utah Code § 63G-2-305(3) which allows a governmental entity to protect records that contain commercial or financial information acquired or prepared by a governmental entity to the extent that disclosure would cause substantial financial injury to the governmental entity or state economy.

3. After having reviewed the disputed records in camera, the Committee was not persuaded that release of the records would cause substantial financial injury to the governmental entity or state economy pursuant to Utah Code § 63G-2-305(3). The Committee also found that even if the records were properly classified as protected records, the public interest in the records outweighs the interest favoring restriction of access and therefore, the records should be disclosed. See, Utah Code §§ 63G-2-403(11)(b) & 63G-2-102.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Center for Biological Diversity 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 8 day of September 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee