State Records Committee Appeal Decision 2021-17

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

STATE RECORDS COMMITTEE. Respondent.

DECISION AND ORDER

Case No. 21-17

By this appeal, Petitioner, Steven Onysko, appeals the decision of Respondent, the Utah State Records Committee, denying his request for records allegedly held by Respondent.

FACTS

On October 21, 2020, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to the Utah State Records Committee (“Committee”), the Division of Archives and Records (“Archives”), and the Department of Administrative Services (“DAS”). Mr. Onysko requested all records “related to the State Records Committee action” combining two appeals Mr. Onysko had before the Committee in Onysko v. Attorney Gen.’s Office, State Records Committee Case No. 21-10 (Feb. 22, 2021). Mr. Onysko stated in his request:

The public records that I insist I must be allowed to inspect include, but are not limited to, emails and other correspondence in which the State Records Committee entity, its Chair and members. its Executive Secretary, its counsel from the Office of Attorney General, or any other doers discussed, advised, ordered, or similarly effected, combination of multiple hearings into one in general, and specifically in my circumstances.

In an email dated November 4, 2020, Kendra Yates, Chief Records Officer for Archives, provided records responsive to Mr. Onysko’s request, with portions of the records redacted pursuant to Utah Code § 63G-2-305(17) & (18). Regarding past appeals where two appeals were combined into one hearing over the requestor’s objection, Ms. Yates stated that there “are no records responsive to this request.”

In a letter dated November 11, 2020, Mr. Onysko filed an appeal with the Chief Administrative Officer for DAS arguing that he believed additional records existed responsive to his request. Mr. Onysko also argued that the records could not be properly classified as protected records pursuant to Utah Code § 63G-2-305(17) & (18) contending that Committee proceedings should not be considered administrative proceedings. On November 27, 2020, Ken Hansen, Chief Administrative Officer for GRAMA appeals for DAS, denied Mr. Onysko’s appeal. Mr. Hansen found that Mr. Onysko is not entitled to any additional records related to his request. Mr. Hansen also found that the records were protected records pursuant to Utah Code § 63G-2-305(17), (18), & (34) or are not considered records under GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(xi).

On December 13, 2020, Mr. Onysko appealed the denial to the Committee. On April 8, 2021, the Committee held a public hearing electronically. Mr. Onysko represented himself and Ms. Yates, Chief Records Officer for Archives, represented the Committee before the Committee. After considering the arguments from all parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Utah Legislature enacting GRAMA recognized the constitutional right of the public to access information concerning the conduct of the public’s business. Utah Code § 63G-2-102(1)(a). The Legislature also recognized a public policy interest in allowing a government to restrict access to certain records as specified in GRAMA, “for the public good.” Utah Code § 63G-2-102(2).

2. 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.

3. The Utah Legislature created a system whereby a records requester who is dissatisfied with a governmental entity’s denial of access to a record may appeal the decision. The first appeal is to the chief administrative officer of a governmental entity pursuant to Utah Code § 63G-2-401. If the chief administrative officer of a governmental entity affirms the denial of a records request, the requester may file a second appeal to: (1) The State Records Committee pursuant to Utah Code § 63G-2-403; or (2) A Utah district court through a petition for judicial review pursuant to Utah Code § 63G-2-404. Utah Code § 63G-2-402(1)(a). It is not necessary for this appeal to be filed first with the Committee in order for a petition for judicial review to be filed with a district court. Id.

4. The Legislature also provided an appeals process for political subdivisions in Utah Code § 63G-2-701 that can be established by policy or ordinance. The appeals process for persons aggrieved by classification, designation, or access decisions shall include a process for an appeal to the chief administrative officer similar to the process in Utah Code § 63G-2-401. Utah Code § 63G-2-701(5)(b). The political subdivision may establish an appeals board to decide an appeal of a decision of the chief administrative officer affirming an access denial. -701(5)(c). The appeals board shall be composed of three members, one of whom shall be an employee of the political subdivision, and two of whom shall be members of the public who are not employed by or officials of a governmental entity. -701(5)(c)(ii). If a political subdivision does not establish an appeals board, appeals of decisions to the chief administrative officer shall be to the Committee pursuant to Utah Code § 63G-2-403. -701(5)(c)(iv). Appeals from a governmental entity’s appeals board may be to the Committee or directly to district court similar to the process outlined in Utah Code § 63G-2-402(1)(a). -701(6)(a).

5. The Judiciary is not subject to Part 4, Appeals of GRAMA except for the requirement that rules governing appeals from denials of requests for access shall substantially comply with the time limits provided in Utah Code § 63G-2-204 and Part 4, Appeals. Similarly, the Legislature and its staff offices are not subject to Part 4, Appeals of GRAMA, and policies through the Legislative Management Committee “may establish an appellate board to hear appeals from denials of access.” Utah Code § 63G-2-703(2) & (3).

6. The Committee is created “within the Department of Administrative Services.” Utah Code § 63G-2-501(1). Archives shall provide staff and support services for the Committee. Utah Code § 63G-2-502(5). The Attorney General’s Office shall provide counsel to the Committee. Utah Code § 63G-2-502(7).

7. The membership of the Committee is established by the Legislature in Utah Code § 63G-2-501(1). Membership is comprised of (1) An individual in the private sector whose profession requires the individual to create or manage records that, if created by a governmental entity, would be private or controlled; (2) An individual with experience with electronic records and databases, as recommended by a statewide technology advocacy organization that represents the public, private, and nonprofit sectors; (3) The director of Archives or the director’s designee; (4) Two citizen members; (5) One person representing political subdivisions, as recommended by the Utah League of Cities and Towns; and (6) One individual representing the news media. Utah Code § 63G-2-501(1)(a-f).

8. Other than the director of Archives, the other members of the Committee are appointed by the governor with the advice and consent of the Senate. Utah Code § 63G-2-501(2). The statutory composition of the Committee shows the Legislature’s intent to have the Committee serve as a neutral administrative appellate body with a membership comprised of individuals representing both governmental and public interests.

9. A complete review of the appeals process outlined in GRAMA shows that for executive agencies and governmental entities other than the Judiciary and the Legislature, all appeals are initially heard by the governmental entity’s chief administrative officer. Appeals may be heard by a three person appeals board pursuant to Utah Code § 63G-2-701, but eventually all appeals are either: (1) Appealed to the Committee and then to district court, or (2) Appealed directly to district court. See, Utah Code §§ 63G-2-402(1)(a) & -701(6)(a). Accordingly, under GRAMA if appeals from governmental entities other than the Judiciary and the Legislature are continued until their statutory conclusion, all appeals eventually arrive in district court where they are reviewed de novo by the court. Utah Code § 63G-2-404(6)(a)(i).

10. The present case is a unique situation where the initial records request was made to the Committee for records of the Committee, itself, which presented a discussion of neutrality or the perception of neutrality by the Committee.

11. The difficulty in this case is that for any other executive agency or governmental entity excluding the Judiciary and the Legislature, a records requester has the opportunity to appeal the decision to the Committee, who then reviews the appeal as a neutral administrative body. However, with this appeal, it is impossible for the Committee to act as a neutral administrative body given the fact that: (1) The Committee is reviewing its own decision initially denying Mr. Onysko’s records request, and (2) The disputed records are related to a current justiciable controversy in district court where the Committee and its chair are named defendants . Accordingly, the Committee finds that the best course for the present appeal is to deny the appeal in order to allow Mr. Onysko the opportunity to have his appeal heard by a neutral district court judge, who would be in a better position to determine whether Mr. Onysko is entitled to the requested records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, 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 19 day of April 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee