State Records Committee Appeal Decision 2018-08
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JON HAGEN, on behalf of H-WIRE TECHNOLOGY SOLUTIONS Petitioner, v.
CAPSTONE CLASSICAL ACADEMY OGDEN, UTAH, Respondent.
DECISION AND ORDER
Case No. 18-08
By this appeal, Petitioner, Jon Hagen, seeks access to records held by Respondent, Capstone Classical Academy Ogden, Utah.
On or about November 6, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records related to a Request for Proposal (“RFP”) for IT Services posted by Respondent on October 25, 2017. On November 20, 2017, Respondent denied the request claiming that the records were protected. Petitioner appealed the denial and on or about January 8, 2018, the matter was addressed before the local Appeals Board where the denial was upheld.
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 February 8, 2018, 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 § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.
2. The following records are protected if properly classified by a governmental entity: (1) Records, the disclosure of which could cause commercial injury to, or confer a competitive advantage upon a potential or actual competitor of, a commercial project entity; and (2) Records, the disclosure of which would impair governmental procurement proceedings or give an unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity. See, Utah Code §§ 63G-2-305(4) and (6).
3. Counsel for Respondent argued that the records regarding the RFP should remain protected records because the contract had not yet been awarded. Counsel stated that the original RFP had been rescinded due to procedural errors, but was reissued on November 8, 2017, and at the time of the hearing, had not yet been completed. Accordingly, the information gathered during the RFP still needs to be kept non-public in order to allow a proper award of a contract to a vendor. Respondent stated that once the RFP process has been completed, a reclassification of the RFP records as “public” may occur.
4. After having reviewed the written and oral arguments of the parties, the Committee finds that, because the RFP has not yet been awarded, Respondent properly classified the records as protected records pursuant to Utah Code §§ 63G-2-305(4) and (6).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jon Hagen, 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 20th day of February 2018.
BY THE STATE RECORDS COMMITTEE
DAVID FLEMING, Chairperson
State Records Committee
Page Last Updated February 21, 2018 .