State Records Committee Appeal Decision 2021-33

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEPHEN PACE, Petitioner, v.

SALT LAKE CITY CORPORATION, Respondent.

DECISION AND ORDER

Case No. 21-33

By this appeal, Petitioner, Stephen Pace, seeks access to records held by Respondent, Salt Lake City Corporation.

FACTS

On December 17, 2020, Mr. Pace filed a request for records with Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Pace requested records “related to the former Salt Lake City Commission’s actions in the late 1970s to modify certain land use regulations.” The request was sent to Vivian Saumure, office manager for the Salt Lake City Attorney’s Office. Ms. Saumure sent a “‘Request for Clarification’” to Mr. Pace on January 5, 2021, “in order to attempt to provide records that [were] responsive to that request.” On January 6, 2021, Mr. Pace submitted two responses to Ms. Saumure’s Request for Clarification.

In an email dated January 8, 2021, Mr. Pace informed the Salt Lake City Mayor’s Office that “he was appealing the City’s ‘failure to respond’ to [his GRAMA request], but the text [of his email] therein indicated that Mr. Pace was responding to the Request for Clarification.” Thereafter Respondent provided responsive records to Mr. Pace, but noted that “[s]ince that request relates to records of events in the 1970s, it is likely that some of the records sought by Mr. Pace have not been in the City’s possession for a very long time.”

Mr. Pace filed an appeal with the Utah State Records Committee (“Committee”). On May 13, 2020, the Committee held a 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. In response to a request for a record, GRAMA does not require a governmental entity to create a record. Utah Code § 63G-2-201(8)(a).

2. Counsel for Respondent argued that all records responsive to Mr. Pace’s records request have been provided to Mr. Pace. Counsel stated that after a thorough search, no other records could be found that were responsive to Mr. Pace’s records request.

3. After having considered the evidence and testimony presented in the case, the Committee is persuaded that Respondent did a thorough search and does not possess any additional records that are responsive to Mr. Pace’s records request. It is reasonable to believe that Respondent no longer possesses records related to the Salt Lake City Commission from the 1970’s.

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