State Records Committee Appeal Decision 2023-46

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL AMANN, Petitioner, vs

DIVISION OF RISK MANAGEMENT, Respondent

DECISION AND ORDER

Case No. 23-46

By this appeal Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by Division of Risk Management (“Respondent”).

FACTS

This matter is a reconsideration of our decision in Amann v. Division of Risk Management, Utah State Records Committee, Decision and Order, case no. 23-39 (entered Aug. 28, 2023) (those facts are incorporated herein by reference). In that decision, we determined that Respondent must disclose requested invoices it received from the Attorney General’s Office and paid on its behalf. Those invoices were for third-party legal services billed to the Attorney General’s Office in connection with litigation the Office had with Petitioner. After our order was entered, however, Respondent submitted a request for reconsideration, bringing to attention a statute it did not raise at the August 17th hearing. According to Respondent, Utah Code § 63A-4-207 prohibits it from complying with our order.

ISSUES FOR REVIEW

We must examine whether Utah Code § 63A-4-207 provides a legal justification for Respondent to not comply with Decision and Order, no. 23-39.

STATEMENT OF REASONS FOR DECISION

Section 63A-4-207 pertains to a record submitted by a governmental entity to Respondent in which the record requires Respondent paying out of the state’s Risk Management Fund. The statute states: “A record provided to the Division of Risk Management by any governmental entity . . . covered by the Risk Management Fund for the purpose of risk control or claims activities of the division shall be considered a record of the originating governmental entity . . . for purposes of Title 63G, Chapter 2. [GRAMA], if the originating governmental entity . . . retains a copy of the record.” Utah Code § 63A-4-207(1).

The Attorney General’s Office submitted the invoices to the Respondent as a claims activity so that the invoices could be paid. Respondent handles all such claims activities for governmental entities, including the Attorney General’s Office. At the hearing, Respondent’s attorney confirmed that the Attorney General’s Office retained a copy of the invoices it submitted for payment.

When a requester seeks records from Respondent that constitute a claims activity, it’s evident that Subsection 207(1) redirects the requestor to seek the records from the governmental entity that submitted them as a claims activity to Respondent. Therefore, since the Attorney General’s Office retains the sought after invoices, and because the invoices were delivered to Respondent as a claims activity, we find that Subsection 63A-4-107(1) is applicable and a legal justification for Respondent’s non-compliance with order 23-39. We find that under that statute, Respondent cannot comply with our order. Petitioner is directed to request the invoices from the Attorney General’s Office.

ORDER

THEREFORE, in accordance with this decision, that part of order 23-39 concerning the invoices is hereby vacated and Petitioner’s appeal on that issue 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. UtahG 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 2nd day of October 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee