State Records Committee Appeal Decision 2022-52

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RAPHAEL CORDRAY, Petitioner, v.

CARBON COUNTY, Respondent.

DECISION AND ORDER

Case No. 22-52

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

FACTS

As an initial matter, this review was initially heard by this Committee on October 13, 2022, when we issued Order No. 22-45. In that Order, we required Respondent disclose certain records in its possession that were not protected by privilege, and we continued the rest of the matter to this hearing. For background, we recite the facts in full from Order No. 22-45.

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 that hearing, Respondent admitted that the denials were not based on the merits of Petitioner’s request, but were due to the burdens held by a small and overworked county office. Respondent stated that some records could be delivered promptly while others would need to be reviewed for attorney-client privilege protection. From that admission, the Committee ordered the Respondent to disclose the immediately available and unprotected responsive records within 14 days of the order being signed. To address remaining records that might be protected under attorney-client privilege, the matter was continued to November 17, 2022. Petitioner was further ordered to deliver a statement of facts prior to the November hearing.

The Committee held the continued hearing on November 17, 2022. However, shortly before the hearing commenced, Respondent delivered the requested records to Petitioner, purportedly in full and without asserting attorney-client privilege over any of the responsive records. Accordingly, the Committee issues this Order.

STATEMENT OF REASONS FOR DECISION

This Committee is charged to hear appeals arising from determinations of access to requested records. Utah Code § 63G-2-502(1)(a). However, there are times when the parties either settle their contention over the records, or the governmental entity otherwise chooses to deliver the records before the appeal is adjudicated. In those instances, the petitioner voluntarily determines that the relief sought from this Committee is no longer needed. If this Committee can no longer consider the parties’ contentions on their merits because of a settlement or full deliverance of the records, then the case is moot. See Black v. Alpha Financial Corp., 656 P.2d 409, 410-411 (Utah 1982) (holding the case was moot when buyer paid the sellers the remaining balance of purchase price and received a conveyance of the property).

Here, in the hour before their appeal hearing, Respondent delivered a file to Petitioner alleged to contain all remaining responsive records from her original GRAMA request. The email delivering the file informed Petitioner that no records were withheld under attorney-client privilege protections. Seemingly seeing no need to attend the hearing after delivering the outstanding records, Respondent failed to attend the hearing. Petitioner told this Committee that although she received the records only an hour ago and has not carefully examined all records within the file, she did open it and upon review, the records did appear to satisfy her GRAMA request.

ORDER

THEREFORE, because Petitioner represented to the Committee that Respondent had satisfied her GRAMA request, there is no appeal for this Committee to hear. This matter is deemed moot by the voluntary actions of the parties and is DISMISSED.

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