State Records Committee Appeal Decision 2023-29

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KEVIN WALKER, Petitioner, vs

UTAH COUNTY, Respondent,

DECISION AND ORDER

Case No. 23-29

By this appeal Kevin Walker (“Petitioner”), requests records allegedly held by Utah County (“Respondent”).

FACTS

On January 19, 2022, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested the “anonymized electronic copy of each individual cast ballot and/or cast vote record(s) or equivalent information maintained by Utah County for the City of Moab general election held on Nov. 2, 2021.” The date range of requested records was November 1, 2021 through January 18, 2022.

Respondent denied the request, claiming that responsive records are not public under Utah Code §§ 63G-2-201(3)(b) and 20A-4-202(2)-(3). Petitioner appealed to Respondent’s chief administrative officer (“CAO”) arguing that the statutes do not restrict access to the specific records he requested and that the denial was therefore in error. However, the CAO did not respond to the appeal which constituted a formal denial under Utah Code § 63G-2-401(5)(b)(i) (“[i]f the chief administrative officer fails to make a decision on an appeal of an access denial within the time specified in Subsection (5)(a), the failure is the equivalent of a decision affirming the access denial”).

Petitioner has now appealed to the State Records Committee (“Committee”), challenging Respondent’s denial. Prior to the hearing, Respondent filed a motion to dismiss the case, or, in the alternative, a request to continue. Respondent argues that because of a pending appeal before the Utah Court of Appeals – Orten and Anderson v. Utah County, Utah County Board of Commissioners, et.al., case no. 20220782-CA – concerns a GRAMA request nearly identical to the one in this case, this appeal must be dismissed, or, at the very least, continued until the Orten and Anderson is fully adjudicated.

On June 15, 2023, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the motion. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

ISSUES FOR REVIEW

We must determine whether Respondent’s motion to dismiss, or, in the alternative, request to continue has merit under the pending appeal of Orten and Anderson, case no. 20220782-CA. If we find that Respondent’s motion has no merit, we are then to decide whether Petitioner’s GRAMA request was properly denied under Utah Code §§ 63G-2-201(3)(b) and 20A-4-202(2)-(3).

STATEMENT OF REASONS FOR DECISION

In Orten, the requesters filed a GRAMA request to various counties asking for a host of records related to the 2020 and November 2021 elections. The counties denied the request on the grounds that the election records were not public records because they fell within an express exemption contained within the GRAMA; that exemption being that “records to which access is restricted pursuant to . . . another state statute” are not public records. Utah Code § 63G-2-201(3)(b). The counties argued that the election code – Utah Code § 20A-1 et seq. – controls the records and restricts their disclosure.

The requesters eventually appealed to district court where Judge Pullan ruled in favor of the counties. Judge Pullan found that “[t]he Election Code comprehensively governs access to and the retention of documents related to an election.” Order Granting Lieutenant Governor’s Motion to Dismiss with Prejudice, Orten and Anderson, case no. 22040041, at 6 (filed Aug. 8, 2022) (J. Pullan). Judge Pullan also found that the Election Code’s governance of election related materials is quite broad and sweeping: “These broadly defined categories of election-related materials – when combined with the equally broad definition of ballot and election returns – sweep within their scope caste vote records, project backup databases, and tabular tapes Plaintiffs seek by way of a GRAMA request.” Id. at 8. Accordingly, Judge Pullan held that “because access to these materials is governed by the Election Code, the materials are not public records obtainable via a GRAMA request. For these reasons, the Court concludes that the balance of Plaintiffs’ GRAMA requests were properly denied.” Id. at 8-9.

Respondent asserts that Judge Pullan’s order compels this Committee to dismiss Petitioner’s appeal. However, we don’t agree. Generally, a district court’s interpretation of a statute is not binding in the way an appellate court’s decision is. Calsert v. Estate of Flores, 2020 UT App 102, ¶ 16. This is because district court judges do not have the authority to overrule other district court judges of equal authority. Richardson v. Grand Central Corp., 572 P.2d 938, 946 (Utah 1977). And with eight judicial districts in Utah, each with no authority to overrule each other, the potential exists for numerous distinct and potentially conflicting district court decisions on a particular legal or factual question. Because of this, how can this Committee (or any administrative body) successfully issue decisions that comply with the law in such a landscape? Accordingly, we do not view Judge Pullen’s decision as binding on this Committee and we see no reason why this case must be dismissed due to his decision.

With that said, the petitioners in Orten have appealed Judge Pullan’s decision to the Utah Court of Appeals. There, the Court of Appeals will render an interpretation of law that will bind this Committee as it applies to this case and others concerning election-related records. Therefore, because of Orten’s pending appeal, we believe hearing this appeal at this time is preemptive. We therefore continue this appeal until after Orten has finalized its appeals and the case is resolved.

ORDER

THEREFORE, for the foregoing reasons, this appeal is CONTINUED until Orten and Anderson v. Utah County, Utah County Board of County Commissioners, et. a. case no. 20220782-CA is resolved.

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