Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2010-12

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

R. K. SHIMABUKURO, Petitioner, vs.

WEBER COUNTY, Respondent.

DECISION AND ORDER

Case No. 10-12

By this appeal, Petitioner, R. K. Shimabukuro seeks access to records including notes, drafts or similar materials prepared by Respondent, Weber County, Utah, (“Weber County”) supporting the County’s “Board of Equalization Decision” associated with the tax assessment of real property owned by Mr. Shimabukuro.

FACTS

On or about February 26, 2010, Mr. Shimabukuro made a records request of Weber County pursuant to the Government Records Access and Management Act (“GRAMA”) for the above-referenced records. On April 15, 2010 and April 27, 2010, Weber County responded to Mr. Shimabukuro’s request, granting it in part, but also denying it in part. Weber County provided Mr. Shimabukuro a copy of the final appraisal report. However, Weber County withheld certain documents used by the appraiser with regard to the subject property owned by Mr. Shimabukuro pursuant to Utah Code Ann.§ 63G-2-305(1) and § 63G-2-309. Weber County also denied access to approximately 100 documents in the file based on its determination that documents contained in the file were “drafts,” and not records pursuant to Utah Code Ann. § 63G-2-103(22)(b), or in the alternative, the “drafts” were protected records pursuant to § 63G-2-305(22).

Mr. Shimabukuro has now filed an appeal with the State Records Committee (“Committee”). The issue heard by the Committee regarded the draft documents contained in the appraiser’s file. Having reviewed the materials submitted by the parties and having heard oral argument and testimony on June 10, 2010, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303, -304 and -305.

2. A temporary draft or similar material prepared for the originator’s personal use or prepared by the originator for the personal use of an individual for whom the originator is working are not records as defined by GRAMA. Utah Code Ann. § 63G-2-103(22)(b)(ii).

3. Drafts, unless otherwise classified as public, are protected records if properly classified by the governmental entity. See, Utah Code Ann. § 63G-2-305(22).

4. Unless otherwise classified as private under Utah Code Ann. § 63G-2-203, records or parts of records regarding the tax status for real and personal property filed with or maintained by county recorders, clerks or treasurers are public pursuant to Utah Code Ann. § 63G-2-103(2)(g).

5. At the hearing, Weber County argued that the “appraiser’s file” did not contain public records, but rather consisted of drafts and/or notes used by the appraiser in his analysis of the subject property. The County further argued such drafts and/or notes were for the “personal use” of the appraiser in producing his final “appraisal report.”

6. After hearing arguments from both parties, the Committee finds that the based upon a preponderance of the evidence, Weber County failed to show that the documents in question are either protected pursuant to Utah Code Ann §§ 63G-2-301(2)(g) or 63G-2-305(22). Further, the Committee is not convinced the documents contained in the “appraiser’s file” contain temporary drafts for the personal use of the appraiser and therefore, not records as defined by Utah Code Ann. § 63G-2-103(22)(b). Instead, the Committee is convinced that the documents associated with the “drafts” are public records and finds that the records should be released to Mr. Shimabukuro.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of R. K. Shimabukuro is granted and Weber County shall within ten (10) days provide Petitioner access to the records contained in the appraiser’s file, with the exception of proprietary “MLS” documents associated with the tax assessment of the real property owned by Petitioner.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (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 Utah Code Ann. § 63G-2-404. 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.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) a notice of intent to appeal. If the government entity 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.

Entered this 17th day of June, 2010.

BY THE STATE RECORDS COMMITTEE

____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee