State Records Committee Appeal Decision 2023-26

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DIANE ALLAN, Petitioner, vs

DAVIS COUNTY, Respondent,

DECISION AND ORDER

Case No. 23-26

By this appeal Diane Allan (“Petitioner”), requests records allegedly held by Davis County (“Respondent”).

FACTS

On August 11, 2022, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested “all records of communications by and between employees of Davis County, Davis County Justice Court, Davis County Prosecutor's office including phone calls, recordings, text messages, emails, written documents involving or mentioning Diane Allan, Diane Killian Allan or Diane Killian Allen.” The date range of the requested records is March 1, 2022, through August 11, 2022.

On September 20, 2022, Respondent replied to the request, outlining the results of its search for responsive records in the following manner:

1. No responsive records were found relating to the phone calls portion of the request;
2. No responsive records were found relating to the recordings portion of the request;
3. No responsive records were found relating to the text messages portion of the request;
4. There were 2 responsive records found relating to the emails portion of the request, one of which was provided to petitioner and the other was withheld under Section 63G-2-305(10)(e); and
5. There were no responsive records found relating to the typed letters portion of the request.

Accordingly, Respondent partially granted and partially denied the request.

Petitioner was dissatisfied with this response and appealed to the Respondent's chief administrative officer (“CAO”). On October 7, 2022, the CAO responded to the appeal and without offering any explanation or reasoning decided to uphold Respondent’s decision. Consequently, Petitioner appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. During the pendency of her appeal, the parties worked with the records ombudsman to resolve the dispute. In doing so, Petitioner received a copy of the withheld record with slight redactions, but chose to continue with her appeal.

On June 15, 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 are asked to determine whether the record that was withheld was properly classified under Subsection 63G-2-305(10)(e) and, if it was, can Petitioner establish, by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access? See Utah Code § 63G-2-406(1). If the evidence favors access, then the redactions must be lifted.

STATEMENT OF REASONS FOR DECISION

Preceding the hearing, the Committee’s executive secretary made numerous attempts to contact Petitioner to see if she wanted to withdraw her appeal in light of receiving the redacted record, but these attempts were unsuccessful. At the hearing, only the Respondent attended and was prepared to argue its case. Given that Petitioner was unresponsive to our secretary’s attempts, her non-attendance at her own appeal hearing, and the fact that she received a copy of the record that is the subject of the appeal, this Committee heard from Respondent and decided to deny the appeal. Notwithstanding the redactions, Petitioner received a copy and has failed to prosecute her appeal.

ORDER

THEREFORE, for 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 26 day of June 2023

BY THE STATE RECORDS COMMITTEE

 

Ken Williams
Chair, State Records Committee