State Records Committee Appeal Decision 2017-44

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROBERT GEHRKE on behalf of THE SALT LAKE TRIBUNE, Petitioner, v.

KANE COUNTY. Respondent.

DECISION AND ORDER

Case No. 17-44

By this appeal, Petitioner, Robert Gehrke, on behalf of the Salt Lake Tribune, seeks access to records allegedly held by Respondents, Kane County.

FACTS

On or about August 25, 2017, Mr. Gehrke made a records requests pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gehrke requested “any maps prepared by [Kane County] as well as any correspondence regarding the Grand Staircase-Escalante National Monument sent or received since Jan. 1, 2017, between [government officials].”

On or about September 12, 2017, Respondent provided records to Mr. Gehrke, but classified a portion of the records as protected pursuant to Utah Code §§ 63G-2-305(22) and -305(57). On September 25, 2017, Mr. Gehrke appealed the partial denial to Rhonda Gant, Chief Administrative Officer of Kane County. In a letter dated October 11, 2017, Ms. Gant denied Petitioner’s appeal, stating that the records were appropriately classified as protected records.

Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 9, 2017, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are private, controlled, or protected under §§ 63G-2-302, -303, -304, or -305, are not public records. Utah Code §63G-2-201(3)(a).

2. Records that are prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).

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

4. Records that reveal the location of historic, prehistoric, paleontological, or biological resources that if known would jeopardize the security of those resources or of valuable historic, scientific, educational, or cultural information, are also protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(26).

5. Respondent argued that the maps that have not been disclosed to Petitioner, should be considered “drafts” under GRAMA because the boundaries marked on the maps have not been finalized. Respondent claims that release of the maps could misinform the public concerning decisions that have not yet been made regarding the Grand Staircase-Escalante National Monument.

6. The Committee reviewed 20 documents in camera, 18 of which were various maps of the Grand Staircase monument (two of the documents were not maps and were not released), and made the following determinations: (1) Map 002 was appropriately classified as a protected record pursuant to Utah Code § 63G-2-305(18); (2) Maps 003, 008, 009, 010, 015, 017, 018, 019, and 020 were appropriately classified as protected records pursuant to Utah Code § 63G-2-305(22); and (3) Maps 004, 005, 006, 007, 011, 012, 013, and 014 were properly classified as protected records pursuant to Utah Code § 63G-2-305(26).

7. The Committee may, upon consideration and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private, controlled, or protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access. Utah Code § 63G-2-403(11)(b). The Committee shall review the disputed records in camera if the Committee is weighing the various interests allowing disclosure of properly classified records pursuant to Utah Code § 63G-2-403(11)(b). Utah Code § 63G-2-403(9)(a)(i)(B).

8. After considering and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, and having reviewed the disputed records in camera, the Committee holds that Maps 003, 010, 015, 016, 017, 018, 019, and 020 should be released because the public interest favoring access to the records is greater than or equal to the interest favoring restriction of access as allowed under Utah Code § 63G-2-403(11)(b).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Robert Gehrke on behalf of the Salt Lake Tribune, is GRANTED in part and DENIED in part.

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 its 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities. Utah Code § 63G-2-403(15)(d)(i). 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 21st day of November 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee