State Records Committee Appeal Decision 2022-21

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARK TRACY, Petitioner, v.

EMIGRATION IMPROVEMENT DISTRICT, Respondent.

DECISION AND ORDER

Case No. 22-21

By this appeal, Petitioner, Mark Tracy, seeks access to records allegedly held by Respondent, Emigration Improvement District.

FACTS

On a form dated November 24, 2021, “Mark Christopher Tracy dba EMIGRATION CANYON HOMEOWNERS ASSOCIATION” (“Petitioner”) made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from “Emigration Improvement District c/o Simplifi Company.” Petitioner’s request was for legal invoices and evidence of payment submitted to the “EMIGRATION IMPROVEMENT DISTRICT" (“District”) from the law firm of Cohne Kinghorn P.C., Parson Kinghorn and Harris P.C., and Gerald R. Kinghorn P.C. since August 1, 1998, Petitioner requested that he view or inspect the records only.

In an e-mail dated November 28, 2021, Jeremy Cook, legal counsel for the District, responded to Petitioner’s request stating that the District “will not respond to GRAMA requests that are made c/o Simplifi Company or that include Mrs. Hawkes.” Mr. Cook also stated in the alternative that the records have been classified as protected records pursuant to Utah Code § 63G-2-305(17).

Mr. Tracy filed an appeal with the chief administrative officer for the District on December 3, 2021. Mr. Tracy stated in the appeal that “[w]e have reason to believe that the Simplifi Company, its shareholders, and/or trustees of [the District] may be concealing the misuse of public funds for private profit.” No decision was given by the District’s chief administrative officer which was interpreted to be a denial by Petitioner pursuant to Utah Code § 63G-2-403(1)(b)(ii), resulting in an appeal being filed with the State Records Committee (“Committee”) on January 3, 2022. On June 2, 2022, the Committee held a public hearing where it considered the written and oral arguments of the parties. After careful consideration of the relevant issues to this appeal, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The District denied Petitioner’s records request stating that it would not respond to records requests from Petitioner “that are made c/o Simplifi Company or that include Mrs. Hawkes.” The Committee affirms this denial, but in order to understand the basis for this affirmance, it is necessary to review the complex litigation history involving the parties to the present appeal.

2. Generally a person has the right to inspect a public record free of charge, and the right to 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 record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). However, a record to which access is restricted pursuant to a court rule is not a public record. Utah Code § 63G-2-201(3)(b).

3. On June 10, 2020, Mr. Tracy sent an e-mail to the District’s records officer, Eric Hawkes, which included a records request pursuant to GRAMA. Tracy v. Simplifi Co., Utah 3rd Dist. Case No. 200905074 (Kouris), Feb. 24, 2021 Memorandum Decision and Order, pg. 2 (“Kouris Feb. 24, 2021 Decision). After an appeal to the chief administrative officer of the District was denied, an appeal was filed directly with district court pursuant to Utah Code § 63G-2-402(1)(a)(ii). Id. pg. 3. However, instead of bringing the action against the District, Mr. Tracy named Eric Hawkes, Jennifer Hawkes, and the Simplifi Company as Respondents. Id.

4. After holding a hearing on February 10, 2021, Judge Kouris found that the District was a necessary party to the district court appeal. Kouris Feb. 24, 2021 Decision, pg. 3. Judge Kouris further found that Mr. Tracy “failed to cite any case law to support the position that Respondents are proper or necessary parties to this action” or cite to any provision or language in GRAMA “supporting the position he can sue an individual or private company based on a governmental entity’s alleged failure to respond to a GRAMA request.” Id. Judge Kouris held that Mr. Tracy’s “action was without merit” and “was also not brought in good faith.” Id. pg. 4. Judge Kouris dismissed Mr. Tracy’s appeal and awarded Respondents (Eric Hawkes, Jennifer Hawkes, Simplifi Company) “their reasonable attorney fees against Mr. Tracy.” Id. Pg. 5.

5. Mr. Tracy appealed the district court case and the Utah Court of Appeals entered an Order of Summary Affirmance on January 24, 2022. Tracy v. Simplifi Co., Utah Court of Appeals Case No. 20210227-CA. Mr. Tracy filed a petition for a writ of certiorari with the Utah Supreme Court regarding the Utah Court of Appeals Decision. On May 9, 2022, the Utah Supreme Court denied Mr. Tracy’s petition. Tracy v. Simplifi Co., Utah Supreme Court No. 20220219-SC.

6. On August 12, 2021, the Committee held a hearing regarding Mr. Tracy’s February 11, 2021 records request to the District. See, Tracy v. Emigration Improvement Dist., State Records Committee Case No. 21-45 (Aug. 23, 2021). The District argued that based upon the Kouris Feb. 24, 2021 decision, it was not required to respond to Mr. Tracy’s records request because he had not paid the attorney fees as ordered by Judge Kouris, relying upon Utah Code § 63G-2-203(8)(a) (“A governmental entity may require payment of past fees and future estimated fees before beginning to process a request if…the requester has not paid fees from previous requests.”

7. The Committee held in Case No. 21-45 that since the fees associated with the Kouris Feb. 24, 2021 Decision “did not require Mr. Tracy to pay the District any fees”, the Committee found that the District could not rely upon Utah Code § 63G-2-203(8)(a)(ii) as a basis to deny Mr. Tracy access to records. State Records Committee Case No. 21-45, ¶¶ 5 & 6.

8. The District filed an appeal of the Committee’s decision in Case No. 21-45 to district court. See, Emigration Improvement Dist. v. Tracy, Utah 3rd Dist. Case No. 210905044 (Judge Scott). In a decision dated May 4, 2022, Judge Scott granted the District’s Motion to for Summary Judgment holding that the District was not required to respond to Mr. Tracy’s records request based upon the holding of Judge Kouris in a Second Order and Decision dated April 15, 2021 (“Kouris Apr. 15, 2021 Decision). Judge Scott wrote that she “declines to overrule the Second Kouris Order” upholding the determination that the District was “not required” to respond to a records request from Mr. Tracy that included Eric Hawkes, Jennifer Hawkes, or the Simplifi Company. Judge Scott further stated:

Indeed, if Mr. Tracy believes that Judge Kouris incorrectly ruled that Simplifi and the Hawkes should not be included in any GRAMA request to [the District] and/or that [the District] does not have to respond to any GRAMA request that includes them, then Mr. Tracy’s avenue for redress is to appeal the First Kouris Order and/or the Second Kouris Order and/or any of Judge Kouris’ other rulings. [Emigration Improvement Dist. v. Tracy, May 4, 2022 Decision pg. 5]

9. When presented with the above district court decisions, the Committee is constrained to follow the precedent set by these courts. A review of Petitioner’s Nov. 24, 2021 records request shows that it was made to “Emigration Improvement District c/o Simplifi Company.” Accordingly, the Committee follows the determination by Judge Scott in her May 4, 2022 Decision, that the District was not required to respond to Petitioner’s records request because it included the Simplifi Company.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Tracy, 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 13 day of June 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee