State Records Committee Appeal Decision 2021-55

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SAVE OUR CANYONS, Petitioner, v.

UTAH DEPARTMENT OF TRANSPORTATION, Respondent.

DECISION AND ORDER

Case No. 21-55

On May 13, 2021, the State Records Committee (“Committee”) held a hearing for Petitioner, Save our Canyons and Respondent, the Utah Department of Transportation. See, Save Our Canyons v. Utah Dept. of Trans., State Records Committee Case No. 21-30 (May 24, 2021). During that hearing, the parties reported on the status of the release and receipt of the requested records. During deliberation, the Committee voted unanimously to continue the hearing in order for: (1) Respondent to clarify the use of the STIP report and Respondent’s reasoning for considering the STIP report a draft; and (2) Respondent to review all of the draft records and identify which ones have been distributed in final form outside of government. Both parties were encouraged to work with the Government Records Ombudsman, Rosemary Cundiff, to potentially help accelerate the providing and receipt of the requested records.

The parties returned for a hearing that was held by the Committee on October 28, 2021. During the hearing, legal counsel for Respondent agreed that the requested records could be given to Petitioner if Petitioner was willing to accept the records in a PDF form. Based upon statements made by both parties, the Committee finds that the parties have agreed upon the scope and nature of the records to be given by Respondent to Petitioner, and that a Notice of Compliance should be filed by Respondent with the executive secretary of the Committee as required by Utah Code § 63G-2-403(15)(c).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Save Our Canyons, is hereby GRANTED.

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 8 day of November 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee