State Records Committee Appeal Decision 2019-12
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
DOUGLAS SAGERS, Petitioner, v.
TOOELE COUNTY, Respondent.
DECISION AND ORDER
Case No. 19-12
By this appeal, Petitioner, Douglas Sagers, seeks access to records allegedly held by Respondent, Tooele County.
On November 5, 2018, Mr. Sagers made a request to Tooele County (“County”) for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sagers requested all County records associated with the Utah Motorsports Campus. Mr. Sagers specifically requested copies of all:
County audited and unaudited financial records, budges, contracts, management agreements, leases, purchase orders, invoices for equipment, O&M, vehicles, marketing, operating supplies, restaurant furnishings and equipment, ATVS, computers, contracts and agreements entered into between Tooele County and lessees, managers, contractors, consultants, professional service providers, appraisers, and or other parties involved or retained by Tooele County to manage, assist, consult, or advise Tooele County in the operation and or sale of the Tooele County Owned Utah Motorsports Park.
Mr. Sagers also requested copies of contracts, agreements, leases, or related documents “that denote past and future financial incumbrances and or liabilities that have been or may be incurred” by the County pursuant to operations, management, and or sale of the Utah Motorsports Campus. In an e-mail dated November 21, 2018, the Tooele County Clerk/Auditor denied Mr. Sagers’ records request stating that all of the requested records are protected records pursuant to Utah Code § 63G-2-305(6) because the sale of the Utah Motorsports Campus was still pending and release of these records could impair the sale of the facility.
Mr. Sagers filed an appeal to the Tooele County Commission through a letter dated January 16, 2019. Mr. Sagers argued that the requested records were public despite the sale of the Utah Motorsports Campus because the records were considered public records during the time Tooele County owned the property. Counsel for the County responded to Mr. Sagers through a letter dated February 15, 2019, denying the appeal on behalf of the County stating that “the County is not the holder of the records you request.” Counsel further stated that although “the County has the contractual right to access the records, it does not possess them and, therefore, it cannot provide them to you.” Counsel added that if “in the future the County does possess the records, then the County will provide them to you.”
Mr. Sagers filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on May 9, 2019, and carefully considering the arguments of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every person has the right to inspect a record free of charge, and the right to take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1) (2018). A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2).
2. A “record” means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical for or characteristics: (1) That is prepared, owned, received, or retained by a governmental entity or political subdivision; and (2) Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a).
3. The following records are normally public subject to any exemptions from disclosure as expressly restricted in Utah Code §§ 63G-2-302, -304, or -305: (1) Records documenting a contractor’s or private provider’s compliance with the terms of a contract with a governmental entity; (2) Records documenting services provided by a contractor or a private provider to the extent the records would be public if prepared by the governmental entity; (3) Contracts entered into by a governmental entity; and (4) Any account, voucher, or contract that deals with the receipt or expenditure of funds by a governmental entity. Utah Code § 63G-2-301(3)(b-e).
4. After reviewing the written documentation provided to the Committee, and hearing arguments and evidence presented by the parties, the Committee is persuaded that Tooele County is the holder of the requested records and has the ability to provide access/copies of the records under GRAMA. The County stated in its February 15, 2019 response that it has access to the requested records. Simply because a governmental entity does not physically possess a record does not obviate the governmental entity’s obligation to provide access/copies of a record it legally owns to a records requester even though the records are in the possession of a non-governmental entity. The Committee also finds that many if not all of the requested records should be classified as public records pursuant to Utah Code § 63G-2-301(3)(b-e). Accordingly, the Committee finds that the County should provide Mr. Sagers with copies of the requested records subject to any exemptions from disclosure as expressly restricted in Utah Code §§ 63G-2-302, -304, or -305. See, Utah Code § 63G-2-301(3).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Douglas Sagers, is hereby GRANTED.
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. Utah Code § 63G-2-403(15)(d)(i)(B). 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 17th day of May 2019
BY THE STATE RECORDS COMMITTEE
TOM HARALDSEN, Chairperson
State Records Committee
Page Last Updated June 3, 2019 .