State Records Committee Appeal Decision 2023-44

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SHAUN LUCAS, Petitioner, vs

BOX ELDER COUNTY, Respondent,

DECISION AND ORDER

Case No. 23-44

By this appeal Shaun Lucas, (“Petitioner”), requests records allegedly held by Box Elder County (“Respondent”).

FACTS

Petitioner filed three records requests with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). On December 30, 2022, Mr. Lucas requested “cost data referred to in Standard 6.6.9 of the Real Property Valuations Standards of Practice issued by the Utah State Tax Commission.” On January 12, 2023, he requested two different records requests. The first “GRAMA Request Form,” specifically requested: “sales file referenced in Standard 6.6.10 of the Real Property Valuation Standards of Practice issued by the Utah State Tax Commission.” The second “GRAMA Request Form,” specifically requested: “sales ratio studies pursuant to Standard 6.10.1 of the Real Property Valuation Standards of Practice issued by the Utah State Tax Commission.” In an effort to understand the request and assist Petitioner in obtaining the information he was after, the Respondent made contact with him to discuss the requests at length.

December 30, 2022, request - The Respondent understood this request to mean that Petitioner was attempting to verify that his property valuations, as well as the property valuations of all the residents in the County, had been calculated correctly. Petitioner was seeking information about the valuation data used by the Respondent to derive the property valuations, including the copyrighted publication known as “Marshall & Swift.”

To calculate property valuations for properties within Box Elder County, the Respondent utilizes an appraisal software known as PUMA. This software has been developed, maintained, and is owned by the Multi County Appraisal Trust (“MCAT”), an independent interlocal entity created by the counties of the State of Utah. It incorporates appraisal data from many different sources, including the copyrighted publication, Marshall & Swift. MCAT is the owner of this software, as well as all of the licenses to use the copyrighted and proprietary data incorporated into the software. The software, the data, and access to the data are kept and maintained by MCAT. The Utah State Tax Commission has approved and authorized use of PUMA software by the counties within the State of Utah. The Respondent does not own, maintain, or have access to the data contained within the PUMA software.

With respect to the information contained within the copyrighted publication known as “Marshall & Swift,” the Assessor told Petitioner that the Utah State Tax Commission’s license to use that publication prohibited both the Respondent and the Utah State Tax Commission from being able to share that publication with him. Petitioner was told that he could purchase his own copy of the same copyrighted publication in the open market.

Because the Respondent does not have access to the data within the PUMA software, and because much of that data is copyrighted and proprietary, the it advised Petitioner that there were no records which it could provide in response to Petitioner’s request, and that he would have to obtain the information directly from MCAT.

January 12, 2023, requests – After discussing these requests at length the Respondent understood that Petitioner was seeking information and sales data contained within computer software developed, kept, and maintained by the Utah State Tax Commission and known as RatioLink. The RatioLink software is a compilation of sales data from many sources, including Multiple Listing Service (“MLS”)—a private proprietary and copyrighted service—transfer surveys, and various other commercial and residential sales data. The Utah State Tax Commission is the owner of this software and the licenses to the proprietary and copyrighted data incorporated within it. As a result, the software, data, and all access to the data are kept and maintained by the Utah State Tax Commission.

The Respondent is allowed by the Utah State Tax Commission to access the software in the appraisal of properties in Box Elder County. Because RatioLink software contains proprietary and copyrighted data, both the Utah State Tax Commission and the Respondent are contractually and legally prohibited from sharing this data. Due to the fact that the Respondent does not own, maintain, or have access to the data within the RatioLink software, and because much of the data is proprietary and copyrighted, the Respondent denied Petitioner’s records request. Petitioner was directed to the Utah State Tax Commission to further pursue obtaining the information he was requesting.

Petitioner appealed the denial of records to Respondent’s chief administrative officer (“CAO”). These appeals were reviewed by both the Chairman and the Box Elder County Attorney. The Box Elder County Attorney reached out and discussed these records at length with Petitioner. After becoming familiar with Petitioner’s requests as well as the PUMA and RatioLink software utilized by the Respondent, the Chairman of the Box Elder County Commission affirmed the initial denial. However, Petitioner was provided with a copy of the “cost multipliers” used by the Respondent as well as a copy of the specific information and data used in PUMA for the 2022 valuation of his property.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On August 28, 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 whether the Respondent performed a reasonable search for the records.

STATEMENT OF REASONS FOR DECISION

Under the GRAMA, “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). When a governmental entity receives a record request, it “shall conduct a reasonable search for [the] requested record.” Utah Code § 63G-2-201(7)(b).

Subsection 201(7)(b) is newly enacted from the Utah legislature’s 2023 session. As a new provision within the GRAMA, we must interpret what it means and how to measure a governmental entity’s compliance. “When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance.” Amann v. Office of the Utah Attorney General, Utah State Records Committee, Decision and Order, no. 22-56 (entered Dec. 27, 2022) (referencing Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations)). Under the FOIA, whether a search is reasonable is determined by the process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). “Reasonableness” is fact-dependent on a case-by-case basis. Weisberg, at 1351. If we determine that the governmental entity’s search was reasonable, the burden is on the petitioner to show that it was not. Amann, at 2.

In this case, the Respondent has repeatedly asserted that it doesn’t own or possess the records Petitioner seeks. The Respondent has advised him that the requested records are held by MCAT and the Utah State Tax Commission. The Respondent has even provided contact information to Petitioner for whom he can directly speak to regarding the requested records. Additionally, the Respondent also asserts that it doesn’t own or maintain the software behind the records, and therefore, it cannot produce the requested records. Not only does it not own or maintain it, but it also cannot access it to obtain the requested information.

We are mindful of Petitioner’s right to public records concerning his property and its valuation. However, it’s clear to us that while the Respondent may use certain tools and resources to provide property valuations on its residents’ properties each year, that does not necessarily mean records are created during that process. And as Petitioner has provided no evidence to show that the Respondent does in fact possess the records, or that their search was inadequately performed, we defer to the Respondent and uphold its denial.

ORDER

THEREFORE, IT IS HEREBY ORDERED that Petitioner’s appeal is 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 6 day of September 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee