State Records Committee Appeal Decision 2023-18

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CINDY O’NEIL, Petitioner, vs

EAST CARBON CITY, Respondent,

DECISION AND ORDER

Case No. 23-18

By this appeal, Cindy O’Neil (“Petitioner”), requests records allegedly held by East Carbon City (“Respondent”).

FACTS

On September 18, 2022, Petitioner submitted a request to the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested numerous items which were initially denied due to the Respondent not responding to her GRAMA request. However, during the pendency of her appeals to the Respondent’s chief administrative officer and then to the State Records Committee (“Committee”), the Respondent did produce and disclose some but not all of the records she requested. At issue before the Committee are the following still outstanding records:

(1) a copy of all applications for service that have been submitted to the city for the connection at 178 West Geneva (“Property”) pertaining to certain named tenants;

(2) all copies of applications for service on the Property that are maintained by the Respondent;

(3) all minutes of the Board of Equalization meetings where the Board heard and decided issues regarding the city’s water, sewer, and garbage bills that may or may not have been deemed illegal, unequal, or unjust;

(4) all records concerning rebates, refunds, or charges that were forgiven or dropped by the city for the last 3 years pursuant to city code;

(5) a copy of any documentation showing that Petitioner and Richard Lynn gave written indication that she and/or Richard Lynn would agree to pay tenants’ water bills for the Property; and

(6) if there is a city ordinances or rule that allows the Respondent to place a lien on the owner’s property when a tenant fails to pay a city service bill, then a copy of the Utah Code provision(s) that the Respondent used to pattern their ordinance after;

On April 20, 2023, 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.

ISSUES FOR REVIEW

We must determine which, if any, of the six outstanding records must be disclosed.

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). The law declares a record public unless expressly provided by statute. Utah Code § 63G-2-201(2). That is, a record that is classified as private, controlled, or protected, or otherwise restricted under a different statute or court rule is not deemed to be a public record or is otherwise governed by the other statute or court rule. Utah Code § 63G-2-201(3)(a)-(b). Generally, if a record is classified as private, controlled, or restricted, the governmental entity may not disclose the record. Utah Code § 63G-2-201(5)(a). Additionally, when responding to a record request, a governmental entity is not required to create a record, provide the record in a format it normally doesn’t retain the record in, fulfill duplicative record requests from an individual, or fill a person’s request if the record is publicly accessible online or included in a public publication or product produced by the governmental entity. Utah Code § 63G-2-201(8).

Upon reviewing the evidence submitted to the Committee and hearing the parties’ arguments, we find this review to be relatively straightforward. We have found the following:

A. Regarding the records sought in item 1 (a copy of all applications for service that have been submitted to the city for the connection at 178 West Geneva (“Property”) that included certain named tenants), we find that the Respondent has delivered some responsive records but not all. As these records are not restricted under the GRAMA, all requested records must be disclosed.

B. Regarding the records sought in item 2 (all copies of applications for service on the Property that are maintained by the Respondent), the evidence shows that this request has been withdrawn by Petitioner and is therefore moot.

C. Regarding the records sought in item 3 (all minutes of the Board of Equalization meetings the Board heard and decided issues regarding the city’s water, sewer, and garbage bills that may or may not have been deemed illegal, unequal, or unjust), the evidence shows that the minutes are available on the Respondent’s website and the Public Notice Website; therefore the Respondent has no obligation to disclose them under Section 63G-2-201(8)(e)(i)(A)

D. Regarding the records sought in item 4 (all records concerning rebates, refunds, or charges that were forgiven or dropped by the city for the last 3 years pursuant to city code), the evidence shows that the city does not regularly maintain such records and since Section 63G-2-201(8)(a) does not require the Respondent to create a record it doesn’t have, it is under no obligation to fill this request. Additionally, we find that any names or addresses attached to such records are classified as protected under Section 63G-2-305(51)

E. Regarding the records sought in item 5 (a copy of any documentation showing that Petitioner and Richard Lynn gave written indication that she and/or Richard Lynn would agree to pay tenants water bill for the Property), the Respondent indicated that it has no such records; however, given the nature of the situation, the Respondent must perform another thorough search to be sure.

F. Regarding the records sought in item 6 (if there is a city ordinances or rule that allows the Respondent to place a lien on the owner’s property when a tenant fails to pay a city service bill, then a copy of the Utah Code provision(s) that the Respondent used to pattern their ordinance after, all laws – the Utah Code and city ordinances – are publicly available. Accordingly, the Respondent is under no obligation to respond to this request under Section 63G-2-201(8)(e)(i)(A).

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED in part and DENIED in part in accordance with the following:

As the record requests are referenced in this Order,
1. The Respondent shall disclose all records still outstanding from those requested in item 1, relying on Petitioner’s initial GRAMA request for the names of the tenants connected to those records as she indicated them;
2. The request for the records listed in item 2 is now moot;
3. The Respondent has no obligation to disclose the records requested in item 3;
4. The Respondent has no obligation to disclose the records requested in item 4;
5. The Respondent shall perform another search for the records requested in item 5; and
6. The Respondent has no obligation to disclose the records requested in item 6.

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 1st day of May 2023

BY THE STATE RECORDS COMMITTEE

Nancy Dean
Chair pro tem, State Records Committee