State Records Committee Appeal Decision 2023-33

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JACK WIDDISON, Petitioner, vs

MOUNT PLEASANT CITY, Respondent,

DECISION AND ORDER

Case No. 23-33

By this appeal Jack Widdison (“Petitioner”), requests records allegedly held by Mount Pleasant (“Respondent”).

FACTS

On August 15, 2022, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested a copy of the recording of the Mt. Pleasant City closed meeting that was held on July 12, 2022, in which Petitioner was a topic of discussion. Respondent denied the request stating that the recording was classified as a “protected” record pursuant to Utah Code § 52-4-208(5).

Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”) who upheld the denial on October 10, 2022; however, in doing so, the CAO cited Utah Code § 63G-2-201(5)(a) as the basis for denying the request. Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On July 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. 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 the recording is properly classified as protected and if the recording must be released.

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, a record that is private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5). Additionally, if a record is restricted pursuant to another state statute, the record is also not a public record and may be released to the requester only in accordance with that statute. Utah Code §§ 63G-2-201(3)(b); 63G-2-107(1).
The Utah Open and Public Meetings Act (“OPMA”) expressly addresses records of closed meetings and their availability to the public under a GRAMA request. That law states that a recording of a closed meeting is a protected record under the GRAMA, except that the record “may be disclosed under a court order as provided under Section 52-4-304.” Utah Code § 52-4-206(5)(a). Furthermore, the GRAMA classifies as protected “transcripts, minutes, recordings, or reports of the closed portion of a meeting of a public body except as provided in Section 52-4-206.” Utah Code § 63G-2-305(32). Because the GRAMA expressly points to the OPMA provision restricting access to a closed meeting recording except by way of a court order, our review of the appeal must be concluded by upholding Respondent’s denial and deferring to a court order if Petitioner chooses to appeal.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED. The records are properly classified as protected under both Utah Code §§ 63G-2-305(32) and 52-4-206(5)(a) and may not be disclosed without a court order.

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 1 day of August 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee