State Records Committee Appeal Decision 2022-28

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

GEORGE STAHELI, Petitioner, v.

UTAH TECH UNIVERSITY, Respondent.

DECISION AND ORDER

Case No. 22-28

By this appeal, Petitioner George Staheli, seeks access to records allegedly held by Respondent, Utah Tech University.

FACTS

On March 26, 2022, Mr. Staheli made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Respondent. Mr. Staheli requested all data the Cicero Group gathered for the Dixie State University name change process. In an email dated April 12, 2022, Respondent denied the request pursuant to Utah Code § 63G-2-201(8)(d), finding that Mr. Staheli had requested similar information in May 2021. The email also stated that Respondent “does not own or maintain Cicero’s raw data or data sets.”

In a letter dated April 30, 2022, Mr. Staheli filed an appeal with Travis Rosenberg, Executive Director of Human Resources with Respondent. Mr. Staheli argued that Respondent “MUST be required to obtain the data related to the Cicero study and provide that to me.” Mr. Staheli contended that since Respondent contracted with Cicero Group to perform a specific study that would generate data, Respondent should own and be able to produce the data that was generated by Cicero Group. In a letter dated May 13, 2022, Mr. Rosenberg denied Mr. Staheli’s appeal finding that Respondent “does not own or maintain the records.” Mr. Rosenberg stated:

To conduct the study, Cicero created certain materials and questions to assist them in gathering information. The University did not prepare, does not own, did not receive, and does not retain this information. The University did not exercise direct supervision or control over how Cicero conducted the study.

Mr. Staheli filed an appeal with the State Records Committee (“Committee”). On July 21, 2022, 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. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. In response to a request for records made pursuant to GRAMA, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a).

2. Counsel for Respondent argued that “the methodology used by Cicero is proprietary to Cicero. The raw data is owned by Cicero and was never intended to be made public as confidentiality is essential to the function of Cicero’s business.” Accordingly, Respondent contended that it “does not own, has not received, and does not maintain any of the records requested” by Mr. Staheli.

3. After having considered the arguments and evidence presented by the parties, the Committee finds that Respondent does not possess any records responsive to Mr. Staheli’s records request. Therefore, the Committee cannot require Respondent to provide records it does not possess.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, George Staheli, 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 1 day of August 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee