State Records Committee Appeal Decision 2022-45

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RAPHAEL CORDRAY, Petitioner, v.

CARBON COUNTY, Respondent.

DECISION AND ORDER

Case No. 22-45

By this appeal, Raphael Cordray (“Petitioner”), requests a fee waiver and records allegedly held by Carbon County (“Respondent”).

FACTS

On March 24, 2022, Petitioner filed with Respondent a request for a fee waiver and records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested all emails and their attachments created, received, or retained by Respondent from July 1, 2020, to the date of Respondent’s response that regarded, contained, or referenced any of the following terms pertaining to Carbon County: “Satellite Port,” “Inland Port,” “Ridge Road site,” “Price river terminal,” or “Inland Port development.” Petitioner did not receive a response to her request, which under GRAMA constitutes a formal denial. Utah Code § 63G-2-204(9). On April 26, 2022, Petitioner filed an appeal to the chief administrative officer of Carbon County, who also failed to respond, thus constituting another formal denial of her appeal under Utah Code § 63G-2-401(5)(b)(i).

Petitioner filed an appeal with the State Records Committee (“Committee”) challenging Respondent’s denials. On October 13, 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

Respondent does not necessarily dispute Petitioner’s request for the records she seeks. Respondent testified that the lack of response to her requests was borne from an overworked small county office rather than a decision on the merits or belief that the records are protected. Respondent testified that it does need to ensure that certain responsive records are not protected by attorney-client privilege, which is a protected classification under the GRAMA. Utah Code § 63G-2-305(17). With that said, Respondent agreed that County Commission records it was certain didn’t contain privileged information may be gathered and disclosed to petitioner within two weeks and the remainder within a reasonable time thereafter.

ORDER

THEREFORE, IT IS HEREBY ORDERED THAT:
1. Respondent disclose responsive records not protected by privilege within 14 days of the date of this Order.

2. This matter, as it pertains to remaining records not disclosed in accordance with this Order, is continued to November 17, 2022.

3. No later than five business days before the November 17th hearing, Respondent shall deliver to the Committee a Statement of Facts as required by Utah Code § 63G-2-403(5).

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 24 day of October 2022

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS

Chair, State Records Committee