State Records Committee Appeal Decision 2022-51

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LYNN DAVID, Petitioner, v.

WASATCH COUNTY, Respondent.

DECISION AND ORDER

Case No. 22-51

By this appeal, Lynn David (“Petitioner”), requests records allegedly held by Wasatch County, Utah (“Respondent”).

FACTS

On July 20, 2022, Petitioner submitted a request for records to Respondent pursuant to the Governmental Records Access and Management Act (“GRAMA”). In essence, the request was for records pertaining to names and addresses of all individuals who applied for primary residence exemptions for their property taxes in Wasatch County and were asked to provide evidence that they were county residents from the time period of January 1, 2016, through June 1, 2022. The request also sought records disclosing individuals approved or denied their primary residence exemption, and the individuals who were asked more than once to provide residency evidence. Respondent denied Petitioner’s request because it held no public records responsive to the request.

Respondent explained in its denial that certain records concerning a taxpayer’s eligibility for an exemption are private under Utah Code § 63G-2-302(1)(aa), and, second, that it was not required under the GRAMA to create a record or compile information in order to respond to a records request when no such records existed. However, to assist Petitioner, Respondent gave him an explanation of the process the county takes to process and evaluate residency exemption applications.

To this response, Petitioner filed an appeal with Respondent’s chief administrative officer narrowing his request. His appeal requested records providing the procedures that were used from January 1, 2016 through June 1, 2022 to determine which individuals are selected to “reprove that they are residents of Wasatch County.” Particularly, Petitioner sought the identity of individuals who were already classified as residents of Wasatch County but whom the county had requested they reverify their residency. For the same reasons as the initial denial, Respondent’s chief administrative officer denied his request.

Petitioner appealed to the State Records Committee (“Committee”). The Committee held a hearing on November 17, 2022. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After carefully considering all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

The GRAMA states that 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 . . . .” Utah Code § 63G-2-201(1)(a). However, in response to a request for records, a governmental entity is not required to create a record, compile or format information, provide a record in a particular format the entity doesn’t normally maintain, or fulfill the request if the records are publicly accessible online and the entity informs the requester where the records can be accessed online. Utah Code § 63G-2-201(8)(a)-(c) & (e)(i)-(ii). In addition, if a governmental entity determines that responsive records don’t exist, then the requester bears the burden on appeal to provide sufficient evidence that they do. See Utah Administrative Code R35-2-2(2).

In this appeal, Petitioner is seeking records showing which county residents were asked to verify and prove their residency multiple times in a six-year span. Respondent maintains that no such records exist because residency exemptions are not determined in that manner. Therefore, in order to provide a responsive record, Respondent testified that it would have to search through all primary residency exemptions it received in the six-year period, find those that necessitated contact with the applicant, compile that data, and then create a report it could respond with under the GRAMA’s protections over property tax exemption information. See Utah Code § 63G-2-302(1)(aa). Respondent testified that compiling and creating this record would be laborious as Wasatch County granted 2,608 primary residence exemptions in 2022 alone. It is this type of endeavor the GRAMA shields a governmental entity from having to undertake.

Not only is § 63G-2-201(8) clear in not requiring a governmental entity to compile data and create a responsive record, but the Utah courts have also spoken on this. In Maese v. Tooele County, 273 P.3d 388, 2012 UT App 49, the Court addressed a case with similar facts. Maese filed a records request with Tooele County requesting a copy of a “compiled [property] transaction report, for the past 20 years, in electronic format.” Id. at ¶ 2. Tooele County denied the request, explaining that “in order to extract the property records information from [its] database, the County would have to either create a record or compile, format, manipulate, package, summarize, or tailor information . . . .” Id. (Internal quotation marks omitted.) However, the County offered some help by informing Maese that the property records were available for personal inspection and copying. Id. In reviewing the appeal, the Court concluded that Tooele County did not have to provide Maese with a copy of the twenty-year property transaction report because doing so would require it to create a record and compile information in a format that it did not currently maintain. Id. at ¶ 19. (Quotation marks omitted.)

Similarly in this case, Petitioner’s request is for data that is not normally maintained. While that defense by itself is not necessarily fatal to a GRAMA request, it does shift the burden to the requester to provide evidence that his sought-after records do exist in a normally maintained compilation that could be inspected. See Utah Administrative Code R35-2-2(2); and see generally Maese v. Tooele County, 2012 UT App 49 (Maese failed to provide viable evidence to the court to compel disclosure). However, Petitioner has not offered any such evidence here. Although he testified that his own personal experience to obtain his primary residence exemption defied the procedure Respondent explained to him in its denial letter, we do not view this personal experience as sufficient evidence that Respondent maintains the records he seeks as a normal course of business. Accordingly, we find that from Petitioner’s lack of evidence, we cannot compel the disclosure of records that don’t exist, and Respondent is not required under the GRAMA to create a record responsive to his request.

ORDER

THEREFORE, for the foregoing reasons, we hereby order Petitioner’s appeal is 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 November 2022

BY THE STATE RECORDS COMMITTEE

________________________________________
NANCY R. DEAN
Acting Chair, State Records Committee