State Records Committee Appeal Decision 2022-53

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LYNN DAVID, Petitioner, v.

WASATCH COUNTY, UTAH, Respondent.

DECISION AND ORDER

Case No. 22-53

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

FACTS

On June 28, 2022, Petitioner submitted a request for records to Respondent pursuant to the Governmental Records Access and Management Act (“GRAMA”). The request was for any and all records related to a rock mining operation on lots 195 and 221 in Brighton Estates, Wasatch County, Utah, including information related to a complaint Petitioner lodged with Respondent in 2021 concerning the operation (“Complaint”), all documentation concerning the business license application and approval for the individual conducting the rock mining operation (“Business License”), and Petitioner’s own communications in with Wasatch County on the matter throughout 2022.

Respondent retrieved responsive records from the Wasatch County Planning Department and provided them to Petitioner. Petitioner was dissatisfied with Respondent’s response because not all the documents he had requested were provided. Petitioner contacted Respondent to inquire why certain records were not delivered. Respondent searched again and found more responsive documents within its Manager’s Office which functions as the County’s Engineering Department. Respondent delivered those documents upon their discovery.

However, Petitioner was still dissatisfied that certain documents were missing. Specifically, he believes Respondent should have records concerning the Business License, as well as records regarding the Complaint. However, Respondent maintained that after multiple searches, it had none.

Petitioner appealed to the chief administrative officer, seeking the missing records and expounding on the facts that lead him to believe Respondent should hold the records he seeks. While the chief administrative officer was able to find and provide a few straggling records after another thorough search of the County’s applicable resources, Petitioner was, in the end, informed that Respondent holds no responsive records to the Business License nor the Complaint. However, Respondent did instruct Petitioner to make a records request with the County Clerk’s Office directly as that office might likely hold those records if they exist.

Believing that Respondent (a political subdivision that oversees the Clerk’s Office) should obtain whatever records the Clerk’s Office holds, Petitioner brings this appeal to the State Records Committee (“Committee”) asking us to compel the production and disclosure of the Business License and Complaint, along with any records relating to them. 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, we issue 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, few remedies exist when, as happens from time to time, a governmental entity claims it doesn’t possess the requested records or that the records otherwise don’t exist. In those instances, the governmental entity cannot be expected to create a record in effort to respond to a records request under the GRAMA. Utah Code § 63G-2-201(8)(a). Also, “[n]o entity is required to go looking for records compiled by another agency or political subdivision.” Godfrey v. State, 2003 UT App 195, at 1 (citing State v. Spry, 2001 UT App 75, ¶16, 21 P.3d 675). Therefore, where a records request is denied because the entity claims the records don’t exist, the burden shifts to the requester to show on appeal that they in fact do. See Utah Administrative Code R35-2-2(2).

In this case, Petitioner has been met with Respondent’s repeated claims that it does not possess the records he seeks. However, understandably frustrating to Petitioner is the fact that with each inquiry and appeal he made, Respondent was able to find an additional responsive record that wouldn’t have been found but for his insistence. Respondent testified at the hearing that there had been employee turnover in the county offices, and that the handling of Petitioner’s request was “messy and not handled as smoothly as it should.” Appeal hearing transcript, p. 12. We understand Petitioner’s frustration with Respondent’s handling of his records requests, but where the GRAMA does not require Respondent to create a record that it doesn’t have, the burden of proof rests on Petitioner to produce evidence that Respondent does in fact hold them. Utah Code § 63G-2-201(8)(a); & See Utah Administrative Code R35-2-2(2). Petitioner has not produced such evidence. Therefore, we cannot compel Respondent to deliver records not in its possession.

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