State Records Committee Appeal Decision 2021-59

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JEFFREY BENNION, Petitioner, v.

UTAH HOUSING CORPORATION, Respondent.

DECISION AND ORDER

Case No. 21-59

By this appeal, Petitioner, Jeffrey Bennion, seeks access to all records related to him or that mention him held by the Respondent, Utah Housing Corporation.

FACTS

In a letter dated March 5, 2021, legal counsel for Mr. Bennion made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). The request was for all materials in Respondent’s files and archives in relation to a specified individual. In a letter dated March 17, 2021, Jonathan A. Hanks, Senior Vice President for Respondent, provided documents and stated that some of the searches provided no responsive document. Mr. Bennion’s legal counsel responded with a letter dated April 9, 2021 provided more clarity regarding the records request including referencing “Cowboy Partners L.C.” After several letters were exchanged between Mr. Bennion’s counsel and Mr. Hanks, a letter dated June 30, 2021 from Mr. Hanks no more records were responsive to the records request and “that of the documents…have been provided to Mr. Bennion in response to the earlier GRAMA request.” In a nine-page letter dated July 27, 2021, David Damschen, President and CEO of Respondent, addressed issues raised in Mr. Bennion’s June 30, 2021 letter concluding that there are no more responsive records to Mr. Bennion’s request.

Mr. Bennion filed an appeal with the State Records Committee (“Committee”). On November 18, 2021, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. Also participating in the hearing was legal counsel for Cowboy Partners, LLC, as an interested third party. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. A person has the right to inspect a public record free of charge and take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). However, in response to a records request, a governmental entity is not required to: (1) Create a record; or (2) Compile, format, manipulate, package, summarize, or tailor information. Utah Code § 63G-2-201(8)(a) & (b).

2. After having considered all of the evidence and arguments presented by both parties, the Committee finds that Respondent has provided all documents responsive to Mr. Bennion’s records request. Accordingly, Mr. Bennion’s appeal is denied.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jeffrey Bennion, 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 30 day of November 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee