State Records Committee Appeal Decision 2016-19
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
UTAH RIVERS COUNCIL, Petitioner, v.
WASHINGTON COUNTY WATER CONSERVATION DISTRICT. Respondent.
DECISION AND ORDER
Case No. 16-19
By this appeal, Petitioner, the Utah Rivers Council (“Petitioner”), seeks access to records allegedly held by Respondent, the Washington County Water Conservation District (“Respondent”).
On April 14, 2016, the Committee held a hearing and heard oral arguments from the parties. During the hearing, it was determined that Applied Analysis, an entity with which the Respondent has contractual relationship, has a record that is responsive to the Petition’s records request. During the hearing, the Committee determined it would need to review the contractual agreement between Respondent and Applied Analysis, in order to determine whether the Respondent maintains the requested record. The Committee voted to continue the hearing in order to allow Respondent to provide a copy of the contract for the Committee to review. See, Utah Rivers Council v. Washington Cty. Water Conservancy Dist., State Records Committee Case No. 16-12 (April 25, 2016). After having reviewed the contract, considering all arguments by the parties, and holding a second hearing on May 12, 2016, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. The Government Records Access and Management Act (“GRAMA”) defines “records as a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics that is: (1) Prepared, owned, received, or retained by a governmental entity or political division; and (2) Where all the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code § 63G-2-103(22)(a).
2. All records under GRAMA are public records unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). Records that are private, controlled, or protected under GRAMA, or to which access is restricted pursuant to a court rule, another state statute, federal statute, or federal regulation, are not public records. Utah Code § 63G-2-201(3).
3. Respondent had previously argued that the requested records were not considered “records” pursuant to GRAMA because the governmental entity does not maintain, and does not possess a copy of the records. However, prior testimony showed that a third a party was hired by Respondent to do work for Respondent, and the third party maintains the records as Respondent’s agent. Therefore, the governmental entity owns and can obtain a copy of the records.
4. The Committee is convinced that even though the records were maintained by a third party, Respondent was the owner of the records and therefore, the disputed records should be considered governmental records subject to GRAMA pursuant to Utah Code § 63G-2-103(22)(a). The Committee also finds that since there is no statutory provision to which access to the records is restricted, the records are public records pursuant to Utah Code § 63G-2-201(2).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Utah Rivers Council, 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 its 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities. Utah Code § 63G-2-403(15)(d)(i). 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 23rd day of May 2016.
BY THE STATE RECORDS COMMITTEE
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee
Page Last Updated May 23, 2016 .