Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 93-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KENNETH L. GRAY, vs.
DEPT. OF HUMAN RESOURCE MANAGEMENT

DECISION AND ORDER, CASE NO. 93-05

By this appeal Kenneth L. Gray seeks an order compelling the Department of Human Resource Management (hereinafter referred to as "the Department") to give him certain records and information regarding a meeting that took place in 1991, apparently between the Executive Director of the State Tax Commission, the Executive Director of the Department of Human Services, the State Risk Manager and their legal counsel from the Attorney Generals' Office. The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the oral argument and testimony of the parties August 19, 1993, now issues the following decision and order.

STATEMENT OF REASONS FOR DECISION

1. The former director of the Department testified that he attended the above-mentioned meeting in an advisory capacity only, that the Department did not create any records regarding the meeting, and that the Department does not have any records of that meeting that have not already been released to Mr. Gray.

2. Mr. Gray contends that the Government Records Access and Management Act (GRAMA) requires the Department to create records that contain the information he seeks. He relies on Utah Code Ann. 63-2-201(8)(b) which provides:

Upon request, a governmental entity shall provide a record in a particular format if: (i) the governmental entity is able to do so without unreasonably interfering with the governmental entity's duties and responsibilities; and (ii) the requester agrees to pay the governmental entity for its additional costs actually incurred in' providing the record in the requested format.

3. That section of GRAMA does not require a governmental entity to create a record that does not exist but rather requires only that the entity provide an existing record in the requested format if the statutory conditions are met.

4. Moreover, the section of GRAMA that immediately precedes the section relied on by Mr. Gray specifies that a "governmental entity is not required to create a record in response to a request". Utah Code Ann. 63-2-201(8)(a) (1992).

5. After considering all of the evidence, we do not believe that the Department has any records regarding the above-mentioned meeting that have not already been released to Mr. Gray.

6. Since the Department is not required to create a record in response to a request, Mr. Grays' appeal must fail.

ORDER

THEREFORE IT IS ORDERED THAT the decision of the Department of Human Resource Management is sustained and the appeal is denied. This decision should not be understood to in any way relieve any governmental entity of its duty to keep adequate records.

RIGHT TO APPEAL

Pursuant to Utah Code Ann. 63-2-404 this Decision and Order may be appealed to the District Court by either party. The petition for review must be filed no later than 30 days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 (1992). The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

Entered this 24th day of August, 1993.

BY THE STATE RECORDS COMMITTEE,
Jeffery O. Johnson, Committee Member and Exec. Sec.