State Records Committee Appeal Decision 2020-46

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RAPHAEL CORDRAY, Petitioner, v.

UTAH INLAND PORT AUTHORITY. Respondent.

DECISION AND ORDER

Case No. 20-46

By this appeal, Petitioner, Raphael Cordray, seeks access to records allegedly held by Respondent, the Utah Inland Port Authority.

FACTS

On or about May 1, 2020, Ms. Cordray made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Cordray requested “emails, correspondence, other paper or electronic records, maps, memos, reports, photographs, depictions, and graphs containing referencing or referring to any [‘]electronic meeting,’ policy, plan or discussion that was had…zoom room, virtual meetings, and online meetings” during a specific time frame. Ms. Cordray also requested records “created or distributed for the purpose of facilitating an electronic meeting…”

On May 7, 2020, Respondent noted that they do not have any records responsive to the request. Ms. Cordray filed an appeal by e-mail with Jack C. Hedge, Executive Director for Respondent. In a letter dated May 21, 2020, Mr. Hedge affirmed the May 7, 2020 decision, stating that Respondent does not have any other records responsive to Ms. Cordray’s records request.

On May 21, 2020, Ms. Cordray filed an appeal with the State Records Committee (“Committee”). On September 10, 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 every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). However, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).

2. Respondent argued that all records responsive to Ms. Cordray’s records request had already been provided to her. However during the hearing, it was determined that a document named “UIPA Policy Binder.pdf” that was attached to a specific e-mail had not been provided.

3. After considering all evidence presented to the Committee, the Committee is convinced that Respondent did a thorough search for records and has provided all records responsive to Ms. Cordray except for the attachment to the above specified e-mail. However, prior to giving the attachment to Ms. Cordray, Respondent should review the document to determine whether any non-public information should be redacted from the attachment.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Cathryn Cordray is hereby GRANTED as specified above.

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 21 day of September 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee