State Records Committee Appeal Decision 2020-47

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

UTAH LOCAL GOVERNMENTS TRUST. Respondent.

DECISION AND ORDER

Case No. 20-47

By this appeal, Petitioners, Brady Eames, seeks access to records allegedly held by Respondent, the Utah Local Governments Trust (“ULGT”). This Decision and Order combines three appeals filed by Mr. Eames and are referenced in this opinion as Appeals 2019-110, 2019-111, and 2019-114.

FACTS

Appeal 2019-110 began as a records request made by Mr. Eames pursuant to the Government Records Access and Management Act (“GRAMA”) to ULGT on September 4, 2019. Mr. Eames requested records related to ULGT Board meetings held on August 25, 2017 and October 27, 2017. Mr. Eames requested an expedited response within five business days from ULGT. Brady Loveland, the Technical Services Manager for ULGT responded to Mr. Eames on the same day stating that his request for an expedited response had been denied and that he should “[e]xpect a response from us within 10 days according to State Statute.”

On September 19, 2019, Mr. Eames filed an appeal with Steve Hansen, Chief Executive Officer for ULGT stating that “Loveland has neglected to make a decision with respect to my inspection of such documents” within 10 business days. Mr. Eames requested a decision “expeditiously…so I may immediately inspect them.” After not receiving a response, Mr. Eames filed an appeal with the State Records Committee (“Committee”) on October 5, 2019.

Appeal 2019-111 began as a records request by Mr. Eames to ULGT’s Board on September 18, 2019. Mr. Eames requested documents relating to the Board’s Trust Advisory Committee including policies and procedures, minutes, and recordings regarding the Advisory Committee. After not receiving a response, Mr. Eames filed an appeal on October 6, 2019 with Mr. Hansen. In an e-mail dated October 6, 2019, Mr. Hansen denied Mr. Eames’ appeal.

Appeal 2019-114 involves a September 22, 2019 records request by Mr. Eames to ULGT for documents related to ULGT’s budgets from 2016 through 2019 including minutes of the Board adopting final operating and capital budgets for those years. Mr. Eames amended his records request on September 27, 2019. On September 30, 2019, Mr. Eames filed an “expedited appeal” with Mr. Hansen arguing that he should be able to inspect the records “immediately at any time during the normal business hours.” On October 8, 2019, A. Craig Hale on behalf of ULGT e-mailed a web address to Mr. Eames stating that the “final budgets you are requesting are, in fact, available online.” Mr. Eames filed an appeal with the Committee for this records request on October 9, 2019.

Because all three appeals involve the same parties, for convenience of the parties the Committee combined the three appeals into one appeal. 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. Regarding Appeal 2019-110, the Committee finds that Mr. Eames has not been denied access to records ULGT has in its possession and that access to some of the requested records cannot be provided because they do not exist. The Committee finds regarding Appeal 2019-111 that no records exist which can be provided by ULGT to Mr. Eames. The Committee held that Appeal 2019-114 should be denied because a governmental entity is not required to fill a person’s record request if: (1) The record requested is publicly accessible online; and (2) The governmental entity specifies to the person requesting the record where the record is accessible online. Utah Code § 63G-2-201(8)(e).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames 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 21 day of September 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee