State Records Committee Appeal Decision 24-33
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
SHAUN LUCAS, Petitioner, v.
UTAH STATE TAX COMMISSION, Respondent,
DECISION AND ORDER
Case No. 24-33
By this appeal, Shaun Lucas (“Petitioner”), requests records allegedly held by Utah State Tax Commission (“Respondent”).
FACTS
On September 1, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of the real property tax surveys and comparable sales data from the Multiple Listing Services (“MLS”) that the Respondent used to prepare its assessment/sales ratio studies for 2021, 2022, and 2023. The Respondent denied the request on September 13, 2023, based on the protected nature of the records and confidential nature of the MLS data. The Respondent classified the sales questionnaire as protected under Subsections 63G-2-305(10) and (15). As for the MLS sales data, the records were withheld pursuant to Utah Code § 63G-2-305(2).”
On October 12, 2023, Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”) Scott Smith. The CAO affirmed the September 13, 2023, denial of the records request. Petitioner then appealed the CAO’s decision to the State Records Committee (“Committee”).
On May 9, 2024, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.
ISSUES FOR REVIEW
The Committee is asked to determine whether the records are properly classified and withheld.
STATEMENT OF REASONS FOR DECISION
Under Utah law, “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, . . .” Utah Code § 63G-2-201(1)(a). But a record that is protected under Section 63G-2-305 is not a public record. Utah Code § 63G-2-201(3)(a). “Only a record specified in . . . Section 63G-2-305 may be classified . . . protected.” Utah Code § 63G-2-305(4). With respect to records relating to government procedures and processes, GRAMA protects the following:
(10) records created or maintained for . . . administrative enforcement purposes or audit purposes, if release of the records:
(b) reasonably could be expected to interfere with audit, . . . or enforcement proceedings.
Utah Code § 63G-2-305(10)(b). And, for records relating to data a private company provides to a governmental entity, the following records are protected:
(1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret has provided the governmental entity with the information specified in Section 63G-2-309.
Utah Code § 63G-2-305(1). Also,
(2) commercial information or nonindividual financial information obtained from a person if:
(a) disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future;
(b) the person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and
(c) the person submitting the information has provided the governmental entity with the information specified in Section 63G-2-309.
Utah Code § 63G-2-305(2)(a)-(c).
Here, we find that the records relating to the Respondent’s internal processes that pertain to how it conducts its property tax analysis, assessments, and proceedings are rightfully protected.
Regarding MLS data, the information the MLS supplies to the Respondent is proprietary. The MLS’s entire business model centers on gathering and housing real estate market data. Its members (real estate agents across Utah) pay monthly fees to access and input this data. Where no other companies are structured in this manner, we find that the data does consist of protectable trade secrets and commercial information. Therefore, because the MLS submitted a business confidentiality claim when it entered into a contract with the Respondent to supply the subject data, the information Petitioner seeks is protected as long as the business confidentiality claim comports with Section 63G-2-309.
Section 309 provides that:
(1)(a)(i) Any person who provides to a governmental entity a record that the person believes should be protected under Subsection 63G-2-305(1) or (2) or both Subsections 63G-2-305(1) and (2) shall provide with the record:
(A) a written claim of business confidentiality; and
(B) a concise statement of reasons supporting the claim of business confidentiality.
Utah Code § 63G-2-309(1)(a)(i)(A)-(B).
The record reflects that the MLS submitted a written claim of business confidentiality when it entered into the Respondent’s contract to use its information. The confidentiality claim sets forth the reasons for the claim, thus satisfying Section 309. Accordingly, we find that the requested MLS data is properly classified and withheld.
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 20 day of May 2024.
BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair, Utah State Records Committee
Committee members Dean, N., Chairperson, Cornwall, M., Williams, K., and Buchanan, M. voted in favor of and joined in this Decision and Order.
Committee member and Dubovik, N. abstained.
enclosed: Right of Appeal; Penalty Notice
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 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 parties’ rights on appeal, a party may wish to seek advice from an attorney.
PENALTY NOTICE
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).