State Records Committee Appeal Decision 2019-27
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UTAH NEWS NOW, Petitioner, v.
GOVERNOR’S OFFICE OF ECONOMIC DEVELOPMENT, Respondent.
DECISION AND ORDER
Case No. 19-27
By this appeal, Petitioner, Utah News Now, seeks access to records allegedly held by Respondent, the Governor’s Office of Economic Development (“GOED”).
On November 9, 2018, GOED received a records request pursuant to Utah’s Government Records Access and Management Act (“GRAMA”) from “UtahNewsNow.” The request stated that “I understand Josh romney (sic) is a member of [GOED’s] team” and requested “documents related to Josh Romney…in electronic form via email attachment.” The request provided an address of “222 S. Main Street” Salt Lake City, Utah, a daytime phone number, and an e-mail address “utahnewsnow@[...].com.”.
An e-mail exchange began between Aimee Edwards, Director of Strategic Outreach and Media Relations for GOED and the requester. On October 8, 2018, Ms. Edwards asked that the requester “fill out the detailed form attached. This will help us with the details of the request.” The requester responded by e-mail on November 18, 2018 stating:
I don’t understand. You have retained legal counsel to prevent the release of basic public information? Is this typical for all GRAMA request[s] or only request[s] involving people named Romney? Is there some issue or theory of law you are citing for the refusal to produce the documents?
In response, Ms. Edwards wrote via e-mail that it was “standard protocol to engage our legal counsel in all GRAMA requests as to ensure we are correctly following statute.” Ms. Edwards further wrote that there were “no issues,” but requested “per the statute” a name and a mailing address and “I will complete the request.” After the requester stated that adequate information had been provided for the records request, Ms. Edwards stated in an e-mail dated April 16, 2019 that “[w]e’ve attempted to reach out to the phone number you provided without success and the address appears to be incorrect.” Ms. Edwards further stated that “we have verified that there is no organization in the state of Utah with the name you provided.”
In an e-mail dated April 22, 2019, the requester appealed to the chief administrative officer of GOED. In a letter dated May 1, 2019, Q. Val Hale, Executive Director for GOED denied the requester’s appeal stating that: (1) The appeal was untimely; (2) The records request lacked reasonable specificity; and (3) The appeal was not legally sufficient because Utah News Now is not an entity registered as a business organization in Utah, and the mailing address and phone number were “not a valid means of contacting you.”
On May 22, 2019, Utah News Now filed an appeal with the State Records Committee (“Committee”). On August 8, 2019, a hearing was held before the Committee where the Petitioner was represented by a person appearing by telephone and legal counsel for GOED appeared in person. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Pursuant to GRAMA, every person has the right to inspect a public 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 & -204. Utah Code § 63G-2-201(1) (2018).
2. A person making a request for a record shall furnish the governmental entity with a written request containing: (1) The person’s name, mailing address, and daytime telephone number, if available; and (2) A description of the record requested that identifies the record with “reasonable specificity.” Utah Code § 63G-2-204(1) (2018).
3. Mr. Hale stated in his May 1, 2019 letter, that Petitioner’s appeal was untimely because an appeal to the chief administrative officer should have been filed sometime in December 2018. Utah Code § 63G-2-401(1)(a) states that a requester “may appeal an access denial to the chief administrative officer of the governmental entity by filing a notice of appeal with the chief administrative officer within 30 days after”: (1) The governmental entity sends a notice of denial under Utah Code § 63G-2-205; or (2) The record request is considered denied under Utah Code § 63G-2-204(9) if that subsection applies. Utah Code § 63G-2-401(1).
4. A review of the e-mail exchanges between the requester and representative of GOED shows that the initial request was never denied by GOED. Ms. Edwards requested more information from the requester with the purpose of providing the requested records to the requester. In an e-mail dated April 18, 2019, the requester stated that “I have also never received a rejection letter.”
5. It also appears from the record before the Committee that the requester appealed to GOED’s chief administrative officer after being dissatisfied with the responses from Ms. Edwards’ and GOED’s legal counsel in April 2019. Accordingly, the Committee finds that Petitioner filed a timely appeal with the chief administrative officer of GOED as required by Utah Code § 63G-2-401(1). Further, Petitioner’s appeal with the Committee on May 22, 2019 was also timely because it was filed with the executive secretary of the Committee within 30 days after the date of issuance of the decision being appealed which was dated May 1, 2019. See, Utah Code § 63G-2-403(1)(a).
6. During the hearing, the person representing the Petitioner clarified that he was seeking uniquely created records by Josh Romney in his official capacity while at the GOMB. The Committee finds that with this clarification, Petitioner’s request was reasonably specific as required by Utah Code § 63G-2-204(1).
7. GRAMA states that a “person” has the right to inspect a public record free of charge and the right to take a copy of a public record during normal working hours, and a “person” making a request for a record shall furnish the governmental entity with a written request containing the “person’s name, mailing address, and daytime telephone number,” if available. See, Utah Code § 63G-2-201(1) (2018) & -204(1) (2018). GRAMA requires a defines a “person” as an individual, a nonprofit or profit corporation, a partnership, a sole proprietorship, other type of business organization, or any combination acting in concert with one another. Utah Code § 63G-2-103(17).
8. When the person on the telephone representing the Petitioner was asked where “Utah News Now” was incorporated, he said it was “outside of Utah” but refused to specify which state Utah News Now was located. No evidence was presented of any business activities of Utah News Now other than the present records request. Additionally, GOED was unable to contact the requester through the phone number and/or address provided by the requester. Accordingly, the Committee finds that insufficient evidence was presented to show that “Utah News Now” is a “person” as defined by Utah Code § 63G-2-103(17), having the right to make a records request to inspect public records as required by Utah Code § 63G-2-204(1). See also Jordanelle Special Services District v. Office of the Utah State Auditor, State Records Comm. Case No. 16-02 (Jan. 16, 2016).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Utah News Now, is hereby 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. 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 19th day of August 2019
BY THE STATE RECORDS COMMITTEE
TOM HARALDSEN, Chairperson
State Records Committee
Page Last Updated August 20, 2019 .