State Records Committee Appeal Decision 2021-32

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEPHEN PACE, Petitioner, v.

SALT LAKE CITY, Respondent.

DECISION AND ORDER

Case No. 21-32

By this appeal, Petitioner, Stephen Pace, seeks access to records held by Respondent, Salt Lake City (“City”).

FACTS

On November 24, 2020, Mr. Pace filed a Government Records Access and Management Act (“GRAMA”) request with Respondent, requesting meeting minutes and the revisions to those minutes for the Salt Lake City Historic Landmark Commission’s (“HLC”) July 16, 2020 public meeting. Respondent provided responsive documents on December 11, 2020. In an email sent on December 21, 2020, Mr. Pace appealed the “records response, arguing that certain records that were requested were not provided and that some of the records that were provided were not responsive to the request.”

In a letter dated January 8, 2021, Rachel Otto, the City’s Chief Administrative Officer and Chief of Staff to the Salt Lake City Mayor, responded to the appeal. Citing the text from Mr. Pace’s December 21, 2020 email and Mr. Pace’s comments, Ms. Otto stated that Respondent had neglected to provide a copy of pending minutes from the July 16, 2020 HLC meeting which had been submitted to the HLC for its approval. Ms. Otto stated that a copy of those pending minutes were provided with her letter. She also stated that under Utah Code Section 63G-2-305(22), “[e]arlier drafts of the pending minutes are protected records […] and are not subject to disclosure.”

In response to Mr. Pace’s request for “All records that show authorship and/or content” of the HLC’s minutes from the July 16, 2020 hearing, Ms. Otto stated that under Utah Code Section 63G-2-201(8), “governmental entities are not required to create records in response to a records request or provide documents in a particular format.” She further stated that, “To the extent your request seeks meeting minutes that identify authorship in the text of the document, I have been advised by the planning division that no such record exists.”

Ms. Otto stated that the redactions to the provided records should have been explained. She clarified that some redactions to the minutes were authorized under Utah Code Section 63G-2-305(17) as “the records provided omitted attorney-client privileged information”, and that some records were held from release in their entirety under that same statute. She further clarified that some redactions were authorized under Utah Code Section 63G-2-302(2)(d) as releasing that information, which included “private email addresses and phone numbers”, “would constitute a ‘clearly unwarranted invasion of personal privacy.’” Ms. Otto stated that one redaction to an attachment occurred because the attachment, which was classified as a protected draft under Utah Code Section 63G-2-305(22), was still accessible through the link to the attachment, despite efforts to remove the link. Lastly, Ms. Otto clarified that Respondent did not provide instructions on how to “unredact” the records “because we don’t believe unredacting is possible.”

Regarding Mr. Pace’s other requests and comments, Ms. Otto stated that “all relevant and responsive records” had been provided in response to Mr. Pace’s request for “[a]ll records showing correspondence, comments, reviews, notes, proposals suggesting changes or corrections, and approval/disapproval among Planning Division staff: and between Planning Division staff and HLC Commissioners”. Ms. Otto noted that Respondent had provided an attendee list for a different meeting in error and that the attendee list for the July 16, 2020 HLC hearing was attached. Ms. Otto stated in final that for Mr. Pace’s other requests, no such records existed, and that “if records provided initially or herewith are not responsive to the request then no such record exists.”

Respondent later declassified “an early draft of ‘pending minutes’” as protected and provided the record to Mr. Pace on February 26, 2021.

Mr. Pace appealed the CAO’s decision to the Utah State Records Committee (“Committee”) on January 8, 2021. In a letter dated January 13, 2021, the Committee’s executive secretary informed Mr. Pace that “After reviewing the material, it has been determined the State Records Committee cannot hear the appeal because access to the records has not been denied. Sufficient facts have not been alleged to determine that other responsive records exist”. In a letter dated March 11, 2021, the Committee’s executive secretary informed Mr. Pace that the Committee had reconsidered its denial of Mr. Pace’s January 8, 2021 appeal and had moved to hear the appeal.

On May 13, 2021, the Committee held a combined hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the parties' arguments and the evidence presented, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Mr. Pace owns buildings in the Salt Lake City area and has been in the process of restoring those buildings. In the hearing, Mr. Pace requested to know his rights regarding reconstructing public landmarks which were now under the supervision of the City. Mr. Pace stated that the HLC had not been keeping adequate minutes and stated that the City refused to tell him that he had been denied records of the minutes. Mr. Pace also stated that the minutes change from one minute to the next, and that staff supported his restoration project at one time and then rejected it another time. Mr. Pace questioned whether the decisions HLC made were arbitrary and capricious. He also stated that one branch of the government said that the records did not exist while the other branch was saying that the records do exist.

2. Counsel for Respondent stated that Mr. Pace was using the GRAMA process to air grievances. The draft pending minutes had been released to Mr. Pace. Counsel stated that it was still unclear what records Mr. Pace believed he had not been provided. Respondent’s counsel acknowledged that some procedural errors had been made but stated that those errors had been rectified and the responsive records had been released to Mr. Pace.

3. The Committee noted that there was nothing on the public notice website regarding meeting minutes for HLC’s meetings. Respondent’s counsel stated that the Respondent would: (1) post the minutes and handouts for meetings on the public notice website; (2) make the minutes available to the public after 30 days, and (3) post the approved minutes to the public notice website and its own website.

4. The Committee voted unanimously to deny Mr. Pace’s appeal as the City had done a search and had provided all responsive records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Stephen Pace, 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 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 24 day of May 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee