Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2009-12

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

WILLIAM JUSTESEN, Petitioner, vs.

MILLARD COUNTY, UTAH, Respondent.

DECISION AND ORDER

Case No. 09-12

By this appeal, Petitioner, William Justesen (“Justesen”) seeks access to notes, drafts or similar materials prepared by Millard County, Utah, (“County”) concerning records associated with the County’s “step and grade” policy/plan, the “Apple Program,” and the approval or denial of a pay raise/reduction for any County employee or department. Justesen also requested the minutes and recording of the Millard County Commission meeting held on January 20, 2009.

FACTS

On or about March 4, 2009, Justesen made a records request of the County pursuant to the Government Records Access and Management Act for the above-referenced records. On March 18, 2009, Millard County Attorney, Richard Waddingham, responding on behalf of the County, granted in part and denied in part, Justesen’s request. Mr. Waddingham provided Justesen the minutes and recording of the January 20, 2009, Millard County Commission hearing, as well as certain e-mail and other correspondence. Mr. Waddingham notified Justesen that certain “draft” documents of the “step and grade” plan may exist, but the documents were being withheld, pursuant to Utah Code Ann. § 63G-2-103(22)(ii) and § 63G-2-305(22). Justesen was also informed that “draft” copies of the “step and grade” plan were not retained by the Millard County Commission or by the drafter of the documents, Commissioner Darrin Smith. Further, the IT manager for the County determined that the “drafts” and associated e-mails could not be recovered from the County’s computer system. Justesen appealed the County’s response to the chief administrative officer for the County on April 13, 2009. Justesen’s appeal was denied by the County on the basis that “drafts” are protected records, pursuant to Utah Code Ann. § 63G-2-305(22).

Justesen has now filed an appeal with the State Records Committee (“Committee”). Prior to the hearing, the parties mutually resolved the matters as to the requests for pay raise/reduction for County employees, correspondence to or from the newspaper, and the Apple Program. The issue heard by the Committee regarded the draft documents concerning the “step and grade” plan. Having reviewed the materials submitted by the parties and having heard oral argument and testimony on August 13, 2009, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303, -304 and -305.

2. A temporary draft or similar material prepared for the originator’s personal use or prepared by the originator for the personal use of an individual for whom the originator is working are not records as defined by GRAMA. Utah Code Ann. § 63G-2-103(22)(b)(ii).

3. Based upon the testimony given at the hearing, the Committee is not convinced that the documents characterized as “drafts” by the County were temporary drafts or similar materials generated for personal use. Accordingly, the draft records are considered “records” and are not exempt from disclosure pursuant to Utah Code Ann. § 63G-2-103(22)(b)(ii)

4. Drafts, unless otherwise classified as public, are protected records if properly classified by the governmental entity. See, Utah Code Ann. § 63G-2-305(22).

5. After hearing arguments from both parties and reviewing the materials submitted, the Committee finds that the documents prepared by Millard County Commissioner, Darrin Smith in association with the “step and grade” plan, prior to the final version approved and implemented by the Millard County Commission on February 7, 2009, were temporary drafts pursuant to Utah Code Ann. § 63G-2-305(22). The Committee also finds the “drafts” were similarly properly classified as protected, pursuant to Utah Code Ann. § 63G-2-305(22).

6. Based upon a preponderance of the evidence, the Committee is convinced that the correspondence associated with the “drafts” are public records and finds that such correspondence should be released to Justesen.

7. The Committee further finds that based upon the testimony given at the hearing, that there is a reasonable possibility that additional records may exist that should also be disclosed to Justesen.

8. The Committee notes that testimony given at the hearing indicates that the County may not have complied with their own records retention policies and that some documents that should have been retained were not retained by the County. Except for records which constitute a “valuable intellectual property,” all records created or maintained by a political subdivision of the state are the property of the state and shall not be mutilated, destroyed, or otherwise damaged or disposed of except as provided under GRAMA and the Archives and Records Service Chapter found in Title 63A, Chapter 12. See, Utah Code Ann. § 63A-12-103. Accordingly, the Committee strongly urges the County to henceforth comply with all state laws, rules, ordinances and policies with regard to records retention.

ORDER

THEREFORE, IT IS ORDERED THAT the determination of Millard County is upheld as to the draft documents associated with the “step and grade” plan pursuant to Utah Code Ann. § 63G-2-305(22), and the appeal of William Justesen is denied as to the drafts of the “step and grade” plan. It is further;

ORDERED that the appeal of William Justesen is confirmed as to the correspondence associated with the drafts of the “step and grade” plan and Petitioner shall be granted access to such correspondence. Millard County is also hereby instructed to within ten (10) days again search its records for any such correspondence and provide petitioner access to the same.

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 Utah Code Ann. § 63G-2-404. 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. § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) 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 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 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 24th day of August, 2009.

BY THE STATE RECORDS COMMITTEE

____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee