State Records Committee Appeal Decision 2021-43

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v.

SEVEN COUNTY INFRASTRUCTURE COALITION. Respondent.

DECISION AND ORDER

Case No. 21-43

By this appeal, Petitioner, the Center for Biological Diversity, seeks access to records allegedly held by Respondent, Seven County Infrastructure Coalition.

FACTS

In a letter dated April 15, 2020, Petitioner submitted a request to Respondent a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records related to the Uinta Basin Railway Project including specifically a draft financial analysis for the Uinta Basin Railway dated May 13, 2019 (“Financial Analysis”). In a letter dated July 23, 2020, Respondent’s records officer denied Petitioner’s request for the Financial Analysis stating that the record was classified a protected record pursuant to Utah Code § 63G-2-305(3) because if contained commercial or financial information acquired or prepared by a governmental entity.

In a letter dated August 21, 2020, Petitioner filed an appeal with Respondent’s Executive Director. In a letter dated September 3, 2020, Mike McKee, Executive Director for Respondent reaffirmed the records officer’s decision regarding the Financial Analysis. Mr. McKee stated that “premature release of this detailed, proprietary information could impair these efforts and could lead to private speculation in items and property potentially affected by Coalition projects.”

Petitioner filed an appeal with the State Records Committee (“Committee”) and on August 17, 2021, 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 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.

2. Commercial or financial information acquired or prepared by a governmental entity to the extent that disclosure would lead to financial speculations in currencies, securities, or commodities that will interfere with a planned transaction by the governmental entity or cause substantial financial injury to the governmental entity or state economy, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(3).

3. After having considered the written and oral arguments of the parties and reviewing the disputed records in camera, the Committee finds that Respondent properly classified the Financial Analysis as a protected record pursuant to Utah Code § 63G-2-305(3).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Center for Biological Diversity 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 August 2021

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee