State Records Committee Appeal Decision 2021-36

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARK ALLEN, Petitioner, v.

UTAH COUNTY, Respondent.

DECISION AND ORDER

Case No. 21-36

By this appeal, Petitioner, Mark Allen, seeks access to records allegedly held by Respondent, Utah County.

FACTS

On December 23, 2020, Mr. Allen filed a records request with Utah County pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Allen requested copies of all cell phone texts between Utah County Commissioner Bill Lee and two specified individuals from January 1, 2020 to the date of the request. Mr. Allen also requested copies of all incoming and outgoing messages related to Bridal Veil Falls and public comments regarding Bridal Veil Falls between November 1, 2020 and December 14, 2020. In an email dated January 6, 2021, a paralegal with the Utah County Attorney’s Office denied Mr. Allen’s request for records of telephonic communication involving Commissioner Lee stating that “Utah County does not pay for his private cell phone and subsequently we do not prepare, own, receive or retain the associated records.”

In a letter dated January 28, 2021, Mr. Allen filed an appeal with the Chair of the Board of County Commissioners, stating that “the records…are of great interest to the public process of protecting a public asset, namely Bridal Veil Falls.” After no response was received by Mr. Allen from Respondent, Mr. Allen filed an appeal with the State Records Committee (“Committee”). On June 10, 2021, the Committee held a hearing where the parties were allowed to participate in person and electronically. 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 enacting GRAMA, the Legislature recognized the public’s constitutional right of access to information concerning the conduct of the public’s business. Utah Code § 63G-2-102(1)(a). It is the Legislature’s intent through GRAMA to promote the public’s right of easy and reasonable access to unrestricted public records. Utah Code § 63G-2-102(3)(a). Similarly, the Legislature “finds and declares” in Utah’s Open and Public Meetings Act that “the state, its agencies and political subdivisions, exist to aid in the conduct of the people’s business.” Utah Code § 52-4-102(1).

2. Under GRAMA, a “record” is defined to include electronic data: (1) That is prepared, owned, received, or retained by a governmental entity or political subdivision; and (2) Where all of the information in the original is reproducible by photocopy “or other mechanical or electronic means.” Utah Code § 63G-2-103(22)(a). A record under GRAMA is a public record unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2).

3. In the present case, County Commissioner Bill Lee is one of three elected county commissioners for Utah County. Mr. Allen requested copies of all cell phone texts between Commissioner Lee and two specified individuals, copies of all incoming and outgoing messages related to Bridal Veil Falls, and public comments regarding Bridal Veil Falls. Mr. Allen argued that decisions regarding the potential development of Bridal Veil Falls is an issue of great public interest. Respondent argued that these records should not be considered records under GRAMA because “Utah County does not prepare, own, receive, or retain private cell phone telephonic communications of County employees, including Utah County Commissioners.”

4. The Committee has previously addressed issues involving communications by elected or appointed officials using personal e-mail accounts or personal electronic devices. In Cromar v. City of Cedar Hills, State Records Committee Case No. 12-11 (June 26, 2012), the Committee ordered release of e-mail communications “using whatever e-mail address” between Cedar Hills City Council members that were prepared, owned, received, or retained by Cedar Hills. In Henderson v. San Juan Cty., State Records Committee Case No. 19-33 (Sept. 23, 2019), the Committee found that texts created by a county commissioner in his public capacity as a commissioner as opposed to his capacity as a private individual “may be considered ‘records’ under GRAMA pursuant to Utah Code § 63G-2-103(22)(a).” The Committee further stated that:
Given the Legislative declaration of public policy stated in Utah’s Open and Public Meetings Act (“OPMA”) that political subdivisions “take their actions openly” and “conduct their deliberations openly,” it would be inappropriate for a public official to attempt to circumvent the requirements of OPMA and GRAMA by using a private device while “conduct[ing] the people’s business.”

5. The Committee reaffirms that a record prepared by a government employee within his or her capacity as a government employee, may be considered a “record” subject to GRAMA. Additionally, in the case of government employees being an elected or appointed official, there should be a higher standard of transparency in order to allow the general public the opportunity to review how these officials “conduct the people’s business.”

6. Based upon the evidence presented, the Committee is convinced that any text messages sent or received by Commissioner Lee concerning Bridal Veil Falls on his personal cell phone should be considered records subject to GRAMA pursuant to Utah Code § 63G-2-103(22)(a). Even though such communications may have occurred through a personal cell phone, there is little question that communications by Commissioner Lee regarding Bridal Veil Falls would be related to his position as a Utah County Commissioner and not related to his capacity as a private citizen. Accordingly, the Committee finds that Commissioner Lee’s communications in this case may be considered records “prepared…by a governmental entity” subject to GRAMA.

7. The second question presented to the Committee is whether Respondent possesses the requested records. Adam M. Beck, Deputy Utah County Attorney and Legal Counsel for Respondent argued that the records cannot be produced to Mr. Allen because Respondent does not possess the alleged records. In his written legal statement provided to the Committee, Mr. Beck states that the Utah County Attorney’s Office contacted Commissioner Lee and the Utah County Commission Office directly to inquire into the existence of any responsive records. Mr. Beck wrote that the Utah County Attorney’s Office “has made every effort to comply with Mr. Allen’s GRAMA request” and that a “thorough search of the records that [Respondent] maintains has not yielded any responsive records nor has any associated Utah County employees identified a record that would be responsive to Mr. Allen’s request.” Mr. Beck further stated that there is no factual evidence to suggest that Commissioner Lee actually used his private cell phone to communicate with the individuals named by Mr. Lee in his records request.

8. After having considered the arguments and the evidence presented to the Committee, the Committee is persuaded that Respondent does not possess any records responsive to Mr. Allen’s records request. Without any persuasive evidence that Respondent possesses the requested records, the Committee will not order Respondent to provide a record the Committee does not believe Respondent possesses. However, it is the Committee’s expressed hope that records management practices of governmental entities will be changed in the near future in order to allow the public to have greater access to electronic public communications by public officials acting within their capacity as public officials, regardless of whether the communications are made through public or private electronic devices.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Allen, 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 21 day of June 2021

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee