State Records Committee Appeal Decision 2022-59

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SHAWN HERRING, Petitioner, v.

VINEYARD CITY, Respondent.

DECISION AND ORDER

Case No. 22-59

By this appeal, Jeffrey Wetsel (“Petitioner”), requests a fee waiver and records allegedly held by Vineyard City (“Respondent”).

FACTS

On January 28, 2022, Petitioner submitted a records request to Respondent under the Government Records Access and Management Act (“GRAMA”) seeking “all records, public meeting notices, agendas, minutes, emails, documents, texts, responses and submissions, official letters and any communications regarding any proposals, requests, authorizations, letters of intent, contracts, planning, or future plans between certain named individuals from August 2017 to present. The individuals listed for those records and communications were Vineyard City’s Mayor, former City Manager, current City Manager, Community Development Director, Councilmembers, employees, as well as Lake Restoration Solutions, LLC and its employees, Sage Solutions, and the Utah Lake Commission executive director and board members. Petitioner then made a second GRAMA request on or around February 10, 2022, for the same records dating back to March 2015.

On April 4, 2022, Respondent notified Petitioner that certain records responsive to his request were made available to him through a personalized Dropbox link, but other records he requested would not be disclosed. Specifically, Respondent denied disclosure of the following records.

For not being public records under Utah Code § 63G-2-103, the following were denied:

1. HB272 Draft – letter 2018, and
2. Draft letter from Vineyard City to Utah Lake Commission.

For being classified as “protected” under Utah Code § 63G-2-305, the following were denied:

1. Emails to Respondent’s attorney regarding contracts; and
2. Emails to Respondent regarding draft bills that were deemed protected by the sender.

For being classified as “private” under Utah Code § 63G-2-302, the following was denied:

1. Sage Government Solutions W-9.

And the following was provided but with certain redactions:

1. “Sullivan’s comments to Amber with personal information redacted.” (Respondent’s Response Letter to Petitioner, April 4, 2022.)

On April 29, 2022, Petitioner appealed the partial denial to Respondent’s chief administrative officer (“CAO”), Ezra Nair, the City Manager. Mr. Nair upheld the partial denial, explaining that the search for records was extensive and the withheld records were legally justifiable.

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

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, this right does not go unqualified. Section 305 of the code provides protection for numerous types of records. Those protections pertinent to this case are commercial information or nonindividual financial information (with certain conditions), records subject to attorney-client privilege, preliminary drafts not classified as public, and legislative records that would reveal a particular legislator’s contemplated legislation. See Utah Code § 63G-2-305(2), (17), (22), & (20). This Committee may privately examine records in camera to determine whether the governmental entity correctly classified the records as protected under the GRAMA or not. Utah Code § 63G-2-403(9)(a)(ii). If the Committee finds that a record is incorrectly classified under any provision of the GRAMA, we hold statutory authority to reassign records’ classification. Utah Code § 63G-2-502(2)(b).

In this case, Respondent classified the following records accordingly:

1. Under Section 63G-2-103, Respondent determined that the HB272 Draft – letter 2018, and the draft letter from Vineyard City to Utah Lake Commission were not public records by definition and, therefore, not subject to the GRAMA.

2. Under Section 63G-2-305, Respondent determined that Emails to Respondent’s attorney regarding contracts, and the emails to Respondent regarding draft bills were “protected” records.

3. Under Section 63G-2-302, Respondent determined that the Sage Government Solutions W-9 was a “private” record.

By motion and vote, the Committee reviewed the disputed records in camera. Upon a thorough examination of the records, we find that the HB272 draft letter, the draft letter from Respondent to Utah Lake Commission, and the W-9 are incorrectly classified. The proper classification for these records is “protected” under Section 63G-2-305(20), -305(22), and -305(2), respectively. In determining this reclassification, the Committee analyzed Respondent’s reasoning for the classifications it assigned, but ultimately decided that the interests being protected warranted the reassignment. See Utah Code § 63G-2-306(1).

Upon properly classifying the records as “protected,” we may analyze the mechanisms for their disclosure. The disclosure of protected records is governed by Section 63G-2-202(4), which, in essence, requires certain releases or a court order to release the records. Petitioner has not provided any such instruments. Therefore, it falls on this Committee to determine which records may be disclosed.

Upon our in camera review of the disputed records, and the weighing of the interests involved, we find that some of the records must be relieved of restriction and delivered to Petitioner in accordance with the Order set forth below.

ORDER

THEREFORE, for the forgoing reasons, Petitioner’s appeal is GRANTED in part and DENIED in part according to the following:

1. Respondent shall release the Government Solutions W-9 with only the EIN redacted.
2. Respondent shall release the email correspondence with Union Pacific (Bates stamp 90) but may withhold the attachment.
3. All other disputed records may remain restricted and protected.

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