State Records Committee Appeal Decision 2022-34

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ERIC PETERSON, Petitioner, v.

UTAH INLAND PORT AUTHORITY, Respondent.

DECISION AND ORDER

Case No. 22-34

By this appeal, Petitioner, Eric Peterson, a reporter with the Utah Investigative Journalism Project, seeks access to records held by Respondent, the Utah Inland Port Authority.

FACTS

On March 4, 2022, Mr. Peterson made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Peterson requested access to “Working Paper 2” Mr. Peterson’s records requests were denied by Respondent based upon the records being protected under §63G-2-305(22).

Mr. Peterson filed an appeal with the State Records Committee (“Committee”). On August 18, 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. The Committee viewed the records in camera. After having carefully considered all evidence presented to the Committee, the Committee unanimously issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Utah Code Annotated §63G-2-305(22) provides that “drafts, unless otherwise classified as public” are “protected.”

2. The Committee was tasked with determining (a) if a draft must be created by the governmental entity and (b) if a draft can be invoiced separately from the final product.

3. The Committee determines that the Respondent properly classified “Working Paper 2” as a draft.

4. First, the Committee agrees with Respondent that a “draft” can be created by a private entity if it is created, pursuant to agreement, for the governmental entity’s benefit. In this case, there was evidence presented that “Working Paper 2” was created for the benefit of Respondent. Respondent provided input on the materials and had exclusive use materials.

5. Second, though this was invoiced as a separate document, the Committee accepts that it was a “draft.” Respondent offered evidence that it was only circulated to 3 people within the Utah Inland Port Authority and those individuals provided comment on this material so it could be converted to a final presentation. Upon review of the record, it is also apparent that large portions of it were utilized in the final presentation to the Respondent.

6. Utah Code Annotated §63G-2-403(11)(b) provides, “Except as provided in Section 63G-2-406, the State Records Committee may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private, controlled, or protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access.”

7. The Committee considered “Working Paper 2” in camera and found that the public interest was not greater than or equal to the interest in maintaining the classification of the record.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, 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 29 day of August 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee