State Records Committee Appeal Decision 2017-49
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
STEVEN ONYSKO, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 17-49
By this appeal, Petitioner, Steven Onysko, seeks access to records held by Respondent, Utah Attorney General’s Office.
On or about March 6, 2017, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records related to a memorandum prepared by an employee of the Utah Division of Environmental Quality regarding an incident that occurred on November 9, 2016. The Utah Attorney General’s Office (“AG’s Office”) determined that the only responsive records that they maintained were found on an email account that was administered by the AG’s Office. The AG’s Office provided eleven pages of records and stated that no more responsive records could be found.
Mr. Onysko appealed to the Chief Administrative Officer challenging that the AG’s Office did not maintain any further records. In a letter dated September 18, 2017, Utah Solicitor General Tyler Green, denied Mr. Onysko’s appeal finding that all responsive records had been provided and stating that “all other records…would have to be obtained from the Utah Department of Technology Services.”
Mr. Onysko 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 December 14, 2017, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The State Records Committee is authorized to: (1) Grant the relief sought, in whole or in part of a records committee appellant; or (2) Uphold the governmental entity’s access denial, in whole or in part. Utah Code § 63G-2-403(11)(a). Having reviewed Petitioner’s records request and the arguments and testimony of the parties, the Committee is persuaded that the AG’s Office has already provided to Mr. Onysko all records that are responsive to his records request. Therefore, the Committee cannot order the AG’s Office to provide records to Petitioner that it does not possess.
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, is 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 a parties’ rights on appeal, a party may wish to seek advice from an attorney.
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 26th day of December 2017.
BY THE STATE RECORDS COMMITTEE
DAVID FLEMING, Chairperson
State Records Committee
Page Last Updated December 29, 2017 .