Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 01-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

WILLIAM JACOB, Petitioner, vs.

AMERICAN FORK CITY, Respondent.

DECISION AND ORDER

Case No. 01-11

By this appeal, William Jacob seeks access to records pertaining to American Fork City's August 1997 request for proposals (RFP) for employee benefit consulting services.

The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on December 12, 2001, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Based on evidence presented at the hearing, it is clear that American Fork City has lost the original proposal submitted by the successful bidder. At the hearing, the City provided a copy of the successful proposal, which it apparently obtained from the successful bidder. The Municipal General Records Retention Schedule requires that successful bid proposal files be retained for four years. The contract was awarded in September 1997. Therefore, the original version of this document should have been available to Mr. Jacob when he submitted his GRAMA request on August 28, 2001. It is not clear whether these documents were lost or destroyed during the pendency of this appeal.

2. In any case, under the Municipal General Records Retention Schedule and applicable law, the City had a duty to maintain these records up to and through the resolution of this appeal. See Utah Code Ann. 63-2-205(3) and -905(3). American Fork City's failure to do so may amount to a violation of Utah Code Ann. 63-2-905(3). This provision states: "It is unlawful for a governmental entity or political subdivision to intentionally mutilate, destroy, or otherwise damage or dispose of a record series knowing that such mutilation, destruction, or damage is in contravention of the political subdivision's or the state archive's properly adopted retention schedule."

3. The City did not have a legal responsibility to maintain the rejected proposals after August 1999 according to the Municipal General Records Retention Schedule. The schedule also requires that contracts are to be maintained for six years after the expiration of the contract, but it does not appear that any additional contract documents exist, besides those that have already been provided to Mr. Jacob.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Mr. Jacob is granted as set forth above. The original successful bid documents should have been available for public inspection when Mr. Jacob submitted his GRAMA request on August 28, 2001.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 (2001). The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. 63-2-403(14), the government entity herein shall comply with the order of the records committee and, if records are ordered to be produced, file: (i) a notice of compliance with the records committee upon production of the records; or (ii) a notice of intent to appeal. If the government entity fails to file a notice of compliance or a notice of intent to appeal, the Records Committee may do either or both of the following: (A) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (B) send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies entities.

Entered this 17th day of December, 2001.

BY THE STATE RECORDS COMMITTEE

Cherie Willis, Chairperson

State Records Committee