State Records Committee Appeal Decision 2020-57

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

UTAH STATE TREASURER. Respondent.

DECISION AND ORDER

Case No. 20-57

By this appeal, Petitioners, Brady Eames, seeks access to records allegedly held by Respondent, the Utah State Treasurer.

FACTS

In an e-mail dated May 31, 2020, Mr. Eames made a request for records to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested “[a]ny and all financial institution records pertaining to the transfer of citizens tax money” to the Public Treasurer’s Investment Fund from the following institutes of higher education: Utah State University, the University of Utah, Weber State University, Southern Utah University, Snow College, Dixie State University, Utah Valley University, and Salt Lake Community College. Mr. Eames also requested any and all FINET records “pertaining to the transfer of citizens tax money to the PTIF” from the above named institutes of higher education. Mr. Eames further requested any and all investment income records pertaining to the transfer of citizens tax money to the PTIF from the above named institutes of higher learning.

In a letter dated June 12, 2020, Kirt W. Slaugh, Chief Deputy State Treasurer, stated that Mr. Eames’ request fails to provide a description of the record requested that identifies the record with reasonable specificity. Mr. Eames filed an appeal with Utah State Treasurer, David Damschen, in an e-mail dated June 17, 2020. Mr. Damschen affirmed Mr. Slaugh’s decision on July 1, 2020.

On July 17, 2020, Mr. Eames filed an appeal with the State Records Committee (“Committee”). On November 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 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).

2. A person making a request for a record shall submit to the governmental entity that retains the record a written request that contains a description of the record requested that identifies the record with reasonable specificity. Utah Code § 63G-2-204(1)(a)(ii). Additionally, in response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).

3. Counsel for Respondent argued that Respondent could not fulfill Mr. Eames’ request for records because he requested records “pertaining to the transfer of citizens tax money.” Counsel stated that ‘[t]here is no way to identify the sources of the monies deposited by educational institutions into the PTIF.” Money comes from multiple sources and cannot be identified solely as “citizens tax money.” Counsel noted that Mr. Eames should “contact the individual institutions for more detailed financial information” because Respondent “does not maintain or possess records that identify the transfer of tax money into the PTIF.”

4. After having considered the written and oral arguments of the parties, the Committee finds that Respondent does not have any records responsive to Mr. Eames’ request for “records pertaining to the transfer of citizens tax money” into the listed accounts by the names institutions of higher learning. Additionally, GRAMA does not require Respondent to create records in response to Mr. Eames’ records request.

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 23 day of November 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee