Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2012-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARK HAIK, Petitioner, vs.

SALT LAKE CITY CORPORATION, Respondent.

DECISION AND ORDER

Case No. 12-16

By this appeal, Petitioner, Mark Haik, is seeking sanctions against Respondent, the Salt Lake City Corporation (“City”), for what he contends was its failure to disclose certain requested records in a timely manner. After having reviewed the submissions of the parties and hearing oral argument and testimony at a hearing held on August 9, 2012, 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 if a chief administrative officer of a governmental entity denies a records request pursuant to GRAMA, the requester may: (1) Appeal the denial to the State Records Committee as provided in Utah Code § 63G-2-403, or (2) Petition for judicial review in district court as provided in Utah Code § 63G-2-404.

2. In the present case, Mr. Haik does not claim that he is appealing a denial of records from a decision of the chief administrative officer of the City (the Salt Lake City Mayor’s Records Appeals Board) denying his request for records. Instead, Mr. Haik claims that pursuant to Utah Code § 63G-2-403(14), the City should be sanctioned by the Committee for its refusal to disclose records.

3. Utah Code § 63G-2-403(14)(a) states in part that unless a notice of intent to appeal is filed, “each party to the [Committee’s] proceeding shall comply with the order of the records committee.” If the Committee orders the governmental entity to produce a record and no appeal is filed, or if as a result of the appeal, the governmental entity is required to produce a record, the governmental entity shall produce the record and file a notice of compliance with the Committee. Utah Code § 63G-2-403(14)(c). If the governmental entity that is ordered to produce a record fails to file a notice of compliance or a notice of intent to appeal, the Committee may impose a civil penalty of up to $500 for each day of continuing noncompliance. Utah Code § 63G-2-403(14)(d)(i).

4. A careful review of the statutory language of Utah Code § 63G-2-403(14) shows that the authority of the Committee to impose a civil penalty of up to $500 is derived from either a governmental entity failing to produce a record after being ordered to produce the record pursuant to a Committee order, or after an appeal of a Committee order. Since neither of these circumstances has occurred in the present case at this time, the Committee does not have the authority to impose a civil penalty against the City. Accordingly, Mr. Haik’s appeal should be dismissed.

ORDER

IT IS ORDERED THAT the appeal of Petitioner, Mark Haik be dismissed based upon the Committee’s lack of jurisdiction to give the relief requested by Mr. Haik pursuant to Utah Code § 63G-2-403(14).

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 § 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 § 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 20th day of August 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Vice-Chairperson
State Records Committee