State Records Committee Appeal Decision 2024-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KELLY ANDERSON, Petitioner, v.

DAVIS COUNTY, Respondent,

DECISION AND ORDER

Case No. 24-02

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

FACTS

Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, he requested a copy of voting records for John Benjamin Collier—the elections Mr. Collier voted in, not necessarily how he voted.

In a response dated May 25, 2023, the Davis County Clerk’s Office denied the request stating that the requested record is classified as private pursuant to § 63G-2-302(1)(d). Subsequently, the Davis County Commission received an appeal from the Petitioner on or about June 12, 2023, requesting that the denial of his original request be reconsidered. Davis County Commission Chair Lorene Kamalu reviewed the facts surrounding the request as well as the response and upheld the denial.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On January 4, 2024, the Committee held a hearing during which the parties were allowed to participate. However, even after being personally contacted about his appearance at the hearing, Petitioner failed to attend. After having carefully considered the matter, the Committee issues the following Decision and Order.

ISSUES FOR REVIEW

We must determine whether the responsive records are correctly classified and withheld.

STATEMENT OF REASONS FOR DECISION

At the hearing, Petitioner failed to appear despite the Committee’s secretary contacting him and asking him to make his appearance. Petitioner informed the secretary that he believed attending the hearing would be futile. As a result of his voluntary non-appearance, we have no choice but to deny his appeal in the form of a default ruling for Respondent.

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 16 day of January 2024

BY THE STATE RECORDS COMMITTEE

Kenneth Williams
Chair, State Records Committee