State Records Committee Appeal Decision 2019-20
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ELIAS FARACLAS, Petitioner, v.
LEHI CITY Respondent.
DECISION AND ORDER
Case No. 19-20
By this appeal, Petitioner, Elias Faraclas, seeks access to records allegedly held by Respondent, Lehi City.
On or about February 12, 2019, Mr. Faraclas made a records request to Lehi City (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Faraclas requested the TMTH Development Agreement and all records relating to the Agreement between January 16, 2018 and the signing of the Agreement.
On February 21, 2019, Respondent granted the request, in part, providing some records, and denied the remainder indicating that they were protected under GRAMA pursuant to Utah Code § 63G-2-305(22). On February 28, 2019, Respondent provided additional records, but denied the draft of the Development Agreement indicating that it is protected under GRAMA pursuant to Utah Code § 63G-2-305(22)
In an email dated March 14, 2019, Mr. Faraclas appealed the denial to the City Administrator indicating that the response was an “inadequate and incomplete response.” In a letter dated March 28, 2019, the City Administrator provided Mr. Faraclas with additional records that were found responsive to his request, but that “[n]one of the additional records … have been denied as being classified as private, controlled, or protected.”
Thereafter, Mr. Faraclas filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having reviewed the records in camera and having heard oral argument and testimony on July 11, 2019, 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. Drafts are protected records if properly classified by a governmental entity and are not otherwise classified as public records. Utah Code § 63G-2-305(22).
3. During the hearing, Petitioner argued that the drafts of the Development Agreement are “unquestionably” public records, and that even if the records were properly classified as protected, the public interest outweighed the classification. Utah Code § 63G-2-201(5)(b).
4. “… [T]he State Records Committee may, upon consideration and weighing of 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).
5. After having reviewed the written arguments of the parties, reviewing the records in camera and hearing testimony and arguments at the hearing, the Committee finds that Respondent did not present a persuasive argument as to why the draft Development Agreement should be classified as protected, and that, even if the records are drafts, the public interest outweighs the interest in restricting access.
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Elias Faraclas, is 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 22nd day of July 2019.
BY THE STATE RECORDS COMMITTEE
TOM HARALDSEN, Chair
State Records Committee
Page Last Updated July 22, 2019 .