State Records Committee Appeal Decision 2022-49

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PATRICK SULLIVAN, Petitioner, v.

SANPETE COUNTY, Respondent.

DECISION AND ORDER

Case No. 22-49

By this appeal, Patrick Sullivan (“Petitioner”) is requesting records allegedly held by Sanpete County (“Respondent”).

FACTS

As an initial matter, this review was originally heard by the State Records Committee (“Committee”) on October 13, 2022, when we issued Order No. 22-44. In that hearing, Respondent failed to attend and Petitioner agreed to a continuance which we now hear. For background, we recite the facts from Order No. 22-44.

On February 22, 2022, Petitioner, a current inmate of Utah State Correctional Facility, requested records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Specifically, he requested all emails from a list of individuals that mentioned him, along with any attachments to those emails, that were sent from January 1, 2019, to the date of his request. Petitioner also requested a “certified copy of summons” for a specific district court case along with a signature showing the date Respondent received the document and a copy of the envelope. Petitioner’s requests and appeals to the chief administrative officer both went unanswered, and because the GRAMA treats a government entity’s failure to respond to a request for records the same as a formal denial (Utah Code §§ 63G-2-204(9); 63G-2-401(5)(b)(i)), he now brings this appeal to the Committee.

The Committee held a hearing on November 17, 2022, 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

In hearing this appeal, the Committee is tasked with interpreting the GRAMA as it pertains to individuals confined to a correctional facility and the number of record requests he may submit. On this point, the GRAMA states: “. . . a governmental entity is not required to respond to, or provide a record in response to, a record request if the request is submitted by or in behalf of an individual who is confined in a jail or other correctional facility following the individual’s conviction.” Utah Code § 63G-2-201(10)(a). However, to balance the rights of inmates, the legislature carved out two exceptions. The exception relevant to this appeal is subsection 10(b)(i) which states that “[s]ubsection (10)(a) does not apply to the first five record requests submitted to the governmental entity by or in behalf of [the inmate] during any calendar year requesting only a record that contains a specific reference to the individual.” Utah Code § 63G-2-201(10)(b)(i). In this review there is no question that Petitioner’s requested records contained a specific reference to himself. Therefore, we must analyze what constitutes a single records request for a single governmental entity. If upon that determination we find that Petitioner has already submitted five records requests in this calendar year, then we must decide that the statutory exemption, (10)(b)(i), falls off and gives the governmental entity full discretion on whether to grant or deny the request.

To begin, we first examine the GRAMA’s definition of “governmental entity.” The relevant subsections are as follows:
“(11)(a) ‘Governmental entity’ means:
. . .
(v) any political subdivision of the State . . . .”

(b) ‘Governmental entity also means:
(i) every office, agency, board, bureau, committee, department, advisory board, or commission of an entity listed in Subsection (11)(a) that is funded or established by the government to carry out the public’s business.”

Utah Code § 63G-2-103(11)(a)(v) & (b)(i).

In this case, the question is whether the Sanpete County Clerk’s Office and Sanpete County Sheriff’s Office are distinct governmental entities or if Sanpete County as a political subdivision is the sole governmental entity and the Clerk’s Office and Sheriff’s Office fall under its umbrella.

Respondent argues that the GRAMA’s appeal scheme aids interpretation. Looking to the GRAMA’s appeal process when a governmental entity denies a records request, the statute states: “A requester or interested party may appeal an access denial to the chief administrative officer of the governmental entity . . . .” Utah Code § 63G-2-401(1)(a) (emphasis added). Likewise, “[i]f the decision of the chief administrative officer of a governmental entity under Section 63G-2-401 is to affirm the denial of a record, the requester may . . . .” Utah Code § 63G-2-402(1) (emphasis added). Respondent essentially argues that under these subsections an entity cannot be considered a “governmental entity” if it does not have a chief administrative officer to handle its appeals. After all, how else would a requester find relief for a denied records request if the GRAMA requires an appeal to the entity’s chief administrative officer and the entity doesn’t have one? Respondent argues this point is especially true in rural counties such as its own where offices of the political subdivision are typically small with only one or two employees handling its administrative matters and municipal functions. We agree with Respondent’s interpretation. Per the GRAMA’s requirement to appeal access denials to “the chief administrative officer of the governmental entity,” we find that only if an entity that has a chief administrative officer does it meet the legal definition of “governmental entity” under § 63G-2-103(11).

Here, Petitioner filed GRAMA requests with the clerk and sheriff’s offices of SanpeteCounty. Because neither office is equipped with a chief administrative officer, the GRAMA requests must be considered a request to Sanpete County itself, which does have a chief administrative officer. Therefore, for purposes of the GRAMA’s provision limiting inmates to five records requests before the governmental entity is no longer obligated to respond, we determine that records requests sent to the county clerk and sheriff’s office are counted as requests to Sanpete County as a whole.

In determining that the Sanpete County clerk and sheriff’s offices do not constitute governmental entities under the GRAMA, we now turn our attention to the number of record requests Petitioner submitted to Respondent.

Petitioner does not dispute that the GRAMA allows a governmental entity to disregard records request if the individual is confined to a correctional facility and has submitted more than five records requests during the calendar year. Utah Code § 63G-2-201(10)(a)-(b)(i). Petitioner does, however, dispute the number of records requests he has so far submitted to Respondent. To resolve this question, we again turn to the GRAMA’s definitions.

Under the GRAMA, “record” is a term of art that means:
“a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics:
(i) that is prepared, owned, received, or retained by a governmental entity or political subdivision; and
(ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.”

Utah Code § 63G-2-103(22)(a).

We note that each item listed under § 103(22)(a) is singular in form. The fact that the definition lists “letter, document, paper, . . . or other documentary material regardless of physical form . . .” as singular items and not in plural is especially pertinent to this appeal. Here, Petitioner requested all emails from a list of individuals that mentioned him, along with any attachments to those emails, that were sent from January 1, 2019, to the date of his request. Certainly, an email would constitute a “letter” under § 103(22)(a), but the more pressing question is how many emails may Petitioner request before Respondent is no longer required to respond? Respondent, of course, argues that the statute’s plain language – the singular use of each item in § 103(22)(a) – makes clear that a single email would constitute a “record” under the GRAMA. Accordingly, Respondent urges us to determine that it is required to return only five single emails out of the many Petitioner requested.

However, Petitioner rebuts this with Utah Code § 68-3-12, which provides rules of construction for the Utah legislative code. These rules of construction were enacted by the Legislature to aid in interpreting the code. Section 68-3-12(1)(b) states that “[t]he singular includes the plural, and the plural includes the singular.” Utah Code § 68-3-12(1)(b). From this, Petitioner argues that under the legislature’s express instruction, every singular item listed in the GRAMA’s definition of a “record” also includes the plural. As a result, Petitioner claims that a “letter” under the GRAMA necessarily and legally is also multiple letters. Thus, according to the legislature’s rules of statutory interpretation, his request for “any and all emails” constitutes a request for a single “record” under the GRAMA’s definition of that word.

Indeed, Petitioner’s application of § 68-3-12(1)(b) by itself to the GRAMA is correct and would create the result he argues for if it stood alone. However, Petitioner misses the statute’s preceding subsection that, we find, bars its application to the GRAMA. Section 68-3-12(1)(a) states:

“In the construction of a statute in the Utah Code, the general rules listed in this Subsection (1) shall be observed, unless the construction would be:
(i) inconsistent with the manifest intent of the Legislature; or
(ii) repugnant to the context of the statute.

Utah Code § 68-3-12(1)(a) (emphasis added).

We believe that applying Subsection 12(1)(b) to the GRAMA’s definition of “record” would be not only inconsistent with the intent of the Legislature, but also repugnant to the context of the GRAMA. If that rule of construction were applied to the GRAMA, the results could so bog down a government office that its very functionality would be impaired. For example, if an individual submitted a request for “any document relating to the government lease for 123 Street,” then the government would be required to disclose all documents relating to that lease, such as relevant communications, financials, procurement requests, and more. Such a request for any singular “document” would overburden the government in searching for and compiling all documents relating to the requested subject matter. For this reason, the government is permitted to seek clarification from the requester about which specific “document” relating to 123 Street he or she desires.

Consequently, we find that applying § 68-3-12(1)(b) to the GRAMA would be repugnant to its purpose and statutory scheme. Accordingly, we determine that the definition of “record” is that of singular items responsive to the request. As such, in response to his request for any and all emails sent by individuals he named in his request and within the time period he specified, Petitioner is entitled to receive no more than five single emails. Anything beyond that is within Respondent’s discretion.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is DENIED in part and GRANTED in part. We hereby order the following:

1. Petitioner’s request that all remaining records in Respondent’s possession be delivered as a single record responsive to his request is denied.

2. Because Respondent has so far delivered four responsive records to Petitioner’s request, Respondent shall contact Petitioner to determine which remaining record he wants disclosed to satisfy his request. Any additional disclosures are within Respondent’s discretion under Utah Code § 63G-2-201(10)(a).

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-G404(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 November 2022

BY THE STATE RECORDS COMMITTEE

_________________________________________
NANCY R. DEAN
Acting Chair, State Records Committee