State Records Committee Appeal Decision 2020-50

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LEO HOLTZ, Petitioner, v.

UTAH STATE TREASURERS OFFICE. Respondent.

DECISION AND ORDER

Case No. 20-50

By this appeal, Petitioner, Leo Holtz, seeks access to records allegedly held by Respondent, Utah State Treasurer’s Office.

FACTS

On or about June 17, 2020, Mr. Holtz made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Holtz requested “an opportunity to inspect or obtain copies of public records of the Surplus / Excess Funds list (7 years of data) from tax foreclosure sale auctions conducted by counties, whose unclaimed surplus funds have been transferred to and held by the Utah State Treasury.”

In a letter dated June 22, 2020, Respondent notified Mr. Holtz that the office does not “keep existing records in the form of lists” that have been requested. Mr. Holtz appealed and the appeal was denied. Thereafter, Mr. Holtz filed an appeal with the State Records Committee (“Committee”). On September 24, 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, a record to which access is restricted pursuant to another state statute is not a public record. Utah Code § 63G-2-201(3)(b).

2. Records of the Deputy State Treasurer and his or her agent related to the administration of the Revised Uniform Unclaimed Property Act (Utah Title 67, Chapter 4a), are confidential and exempt from public inspection or disclosure except as otherwise provided in the Act. Utah Code § 67-4a-1402(1)(a).

3. In response to a records request pursuant to GRAMA, a governmental entity is not required to fill a person’s request if the requested record is publicly accessible online and the governmental entity specifies to the person requesting the record where the record is accessible online. Utah Code § 63G-2-201(8)(e).

4. After carefully reviewing the evidence and the arguments of the parties, the Committee finds that Respondent is not required to fulfill Mr. Holtz’s records request. Some of the records are confidential and exempt from public inspection/disclosure pursuant to Utah Code § 67-4a-1402(1)(a), and the remaining public records are already accessible online. See, Utah Code § 63G-2-201(8)(e).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Leo Holtz 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 30 day of September 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee