State Records Committee Appeal Decision 2020-03
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ANDREW GULLIFORD, Petitioner, v.
SAN JUAN COUNTY COMMISSIONERS, Respondent.
DECISION AND ORDER
Case No. 20-03
By this appeal, Petitioner, Andrew Gulliford seeks access to records allegedly held by Respondent, San Juan County Commissioners.
On September 12, 2019, the State Records Committee (“Committee”) held a hearing regarding an appeal filed by Mr. Gulliford concerning the May 9, 2019 denial notice from Kelly Pehrson, Chief Administrative Officer for San Juan County. See, Guilliford v. San Juan County, State Records Committee Case No. 19-32 (Sept. 23, 2019). Pursuant to Utah Code § 63G-2-403(9)(a)(i), the Committee may review the disputed records and shall review the disputed records if weighing the various interests found under Utah Code § 63G-2-403(11). Additionally, the governmental entity must bring the disputed records to the Committee’s hearing to allow the Committee to view the records in camera if it deems an in camera inspection is necessary. Utah Admin. Code R. 35-1-2(5). The Committee determined during the September 12, 2019 hearing that the matter needed to be continued in order to allow the Committee to conduct an in camera review of the records to determine: (1) Whether the information was properly classified; and (2) Whether the records could be released pursuant to the weighing provisions found in Utah Code § 63G-2-403(9) & (11).
Subsequent to the September 12, 2019 hearing, Respondent provided records to the Committee to review in camera. However, after having reviewed the provided records, the Committee determined that Respondent had not provided a complete set of records to the Committee because it appeared that e-mail communications did not include the entire thread of the communications and the attachments to the e-mails. During a hearing held by the Committee on January 9, 2020, Respondent stated that some of the records had not been provided to the Committee because the records had already been provided to Mr. Guilliford. Unfortunately, no such instructions concerning what records had or had not been provided to Mr. Gulliford had been provided to the Committee allowing the Committee to determine whether all records responsive to the appeal had been provided for the in camera review.
Accordingly, the Committee finds that a second continuance is necessary in order to allow Respondent to provide all responsive records to the Committee for in camera review and/or a summary that allows the Committee to determine whether all disputed records have been provided to the Committee.
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Andrew Gulliford, is CONTINUED until the next scheduled Committee hearing.
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 21st day of January 2020.
BY THE STATE RECORDS COMMITTEE
TOM HARALDSEN, Chair
State Records Committee
Page Last Updated January 21, 2020 .