State Records Committee Appeal Decision 2022-56

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL AMANN, Petitioner, v.

THE OFFICE OF THE UTAH ATTORNEY GENERAL, Respondent.

DECISION AND ORDER

Case No. 22-56

By this appeal, Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by the Office of the Utah Attorney General (“Respondent”).

FACTS

On or about March 31, 2022, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking any and all records pertaining to the investigation of a firearm left at the Hale Center Theater after the Attorney General’s Office held an office-wide meeting there in 2014. In response to his request, Petitioner received 14 pages of responsive records with a single redaction – that of a personal email address contained in one of the documents.

Petitioner appealed this response to the Respondent’s chief administrative officer (“CAO”) arguing that there may be additional records such as text messages that had not been provided and that the redaction should be lifted. However, that appeal was denied because Petitioner offered no persuasive reason to lift the redaction, that the Respondent’s search was inadequate, or that additional records exist and are in the Respondent’s possession.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 15, 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

A. The Reasonableness of Respondent’s Search

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). While the GRAMA requires that an individual identify the records he seeks with “reasonable specificity,” it does not set a clear standard for the governmental entity on how to conduct its search. Utah Code § 63G-2-201(7)(b). When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance. See e.g., Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations).

Under the FOIA, when a governmental entity receives a records request, its search must be reasonable with the reviewing court looking at the entity’s process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The issue we must review is not whether remaining records may exist, but whether the entity’s search efforts were adequate. Weisberg, at 1351. If the search is challenged by the records requester, the governmental entity then bears the burden of showing that the search was reasonable. See Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir.1990). And “reasonableness” is dependent on the circumstances in the case. Weisberg, at 1351. If it’s determined that the governmental entity performed a reasonably adequate search, our Utah Administrative Rules then require the requester to provide sufficient evidence that additional records exist and are in the entity’s possession. Utah Administrative Rule R35-2(2).

In this case, Petitioner seeks records from an incident that occurred eight years ago. We acknowledge up front that this fact plays a significant part in determining whether the Respondent’s search was reasonable. Absent any formal investigation or proceeding, records of an incident that happened at an office meeting in 2014 may be minimal.

The Respondent’s records counsel, Lonny Pehrson, presented to the Committee that in response to Petitioner’s request, he conducted an office-wide search, which included contacting its records custodians, the Respondent’s executives, and the investigations division. All denied having any responsive records. Further, the investigations division informed Mr. Pehrson that an investigation was never conducted into the matter and, therefore, there was no investigation report. After that, Mr. Pehrson performed an email archive search for any emails relevant to the incident. According to Mr. Pehrson, the search took several hours as he examined over 200 emails that went out within the Respondent’s office about the incident. From that email archive search, the Respondent provided to Petitioner the initial email that went out to all employees about the incident and providing instructions on how to retrieve the firearm if they were the owner, as well as all responses to that email. This delivery to Petitioner constituted 14 pages. Nothing in those 14 pages indicated that further records about the incident existed. From his search efforts, Mr. Pehrson concluded that the matter was handled solely by the Respondent’s Communication Director who sent out the office-wide email. Because there was no formal investigation into the matter, there were no other responsive records aside from the emails.

Finally, Mr. Pehrson presented to the Committee his search efforts regarding responsive text messages: Because the Respondent has no means to centrally search all text messages within the office – especially from eight years ago – Mr. Pehrson inquired of investigations division about text messages because they were most likely to have any that may be directly relevant. However, the investigations division had none.

Given that the incident occurred eight years ago, we find that the Respondent’s search efforts, as conducted by Mr. Pehrson, were reasonably adequate.

With the Respondent satisfying its burden of showing that its search was reasonable, the burden shifts to Petitioner to show that additional records do in fact exist. The Utah Administrative Rules states,

In any appeal to the Committee of a governmental entity’s denial of access to records for the reason that the record is not maintained by the governmental entity, the petitioner shall provide sufficient evidence in the petitioner’s statement of facts, reasons, and legal authority in support of the appeal, that the record was maintained by the governmental entity at one time, or that the governmental entity has concealed, or has not sufficiently or has improperly searched for the record.

Utah Administrative Rule R35-2(2).

Here, Petitioner offered no direct evidence that additional records existed. Accordingly, we find that without evidence to the contrary, the Respondent has met its burden in responding to Petitioner.

B. Propriety of the Redaction

Although Petitioner challenged the CAO’s decision about the redaction, he did not raise the issue in the hearing. In fact, it was the Respondent who brought up the redaction and explained that within the 14 pages of responsive records there was a single redaction – that of a personal email address, which the Respondent redacted under Utah Code § 63G-2-302(2)(d). Because Petitioner did not challenge the issue on the appeal, we see no reason to analyze this issue; therefore, we leave the CAO’s decision undisturbed.

ORDER

THEREFORE, because of the foregoing reasons, Petitioner’s appeal is hereby 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 27th day of December 2022

BY THE STATE RECORDS COMMITTEE

_________________________________________
NANCY DEAN
Acting Chair, State Records Committee