Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2011-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, vs.

UTAH STATE TAX COMMISSION, Respondent.

DECISION AND ORDER

Case No. 11-08

By this appeal, Petitioner, Steven Onysko appeals a denial from Respondent, Utah State Tax Commission (“Commission”), of his request for records pertaining to his 2007-2009 State of Utah income tax returns.

FACTS

On December 11, 2010, Mr. Onysko requested “copies of all correspondence between/among representatives of the [Commission], and Utah Attorney General’s Office” and himself, with respect to a “2009 income tax liability change.” He also requested copies of all Commission “recalculations, spreadsheets, notes, etc., of taxpayer’s documentation already provided to the [Commission] and relevant to the 2009 tax change.” Mr. Onysko made similar requests regarding 2007 and 2008 “income tax liability change.”

In three separate letters dated January 11, 2011, a manager of the Commission’s Auditing Division provided copies of documents responsive to Mr. Onysko’s request, but also asserted that all “communication between the Utah State Tax Commission and the Attorney General’s Office is protected because of attorney client communications.” Mr. Onysko stated in a letter dated January 15, 2011 to the Commission’s Disclosure Officer that he deemed the Commission’s responses “to be unsatisfactory and, therefore, de facto denials.” The Commission’s Disclosure Officer wrote in a letter dated January 26, 2011 that Mr. Onysko’s request for additional information is being denied because “this information is protected under Utah Code §§ 63G-2-305(9)(b)(e), (14) (16) and (18).”

On February 22, 2011, Mr. Onysko appealed to the State Records Committee (“Committee”). The Committee, having reviewed written arguments of the parties and having heard oral argument and testimony at the hearing held on June 9, 2011, 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. During the hearing, counsel for the Commission stated that it now possessed records responsive to Mr. Onysko’s request. These records were extracted from a non-disclosable proprietary software program and were recently printed in a format which could be viewed and copied by Mr. Onysko.

3. The definition of a “record” under GRAMA does not include “proprietary software.” Utah Code Ann. § 63G-2-103(22)(b)(v). A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing the record if the governmental entity compiles the record is in a form other than that normally maintained by the governmental entity which may include records that are the result of computer output. Utah Code Ann. § 63G-2-203(1) and -203(2)(a)(iii). Additionally, a governmental entity is generally required to disclose a private record to the subject of the record. Utah Code Ann. § 63G-2-202(1)(a).

4. Based upon the evidence presented, the Committee finds that the Commission should grant access to Mr. Onysko to private records within their control that are responsive to his GRAMA request.

5. Also during the hearing, the Commission stated that it had other records that were responsive to Mr. Onysko’s GRAMA request, but the records were actually records from the Utah Department of Workforce Services (“Department”). The Commission stated that it did not have the authority to release those records pursuant to a written agreement entered into with the Department.

6. The Committee finds based upon the evidence presented, the Commission should not be required to disclose documents that are subject to its record sharing agreement with the Department pursuant to Utah Code Ann. § 63G-2-206(4). If Mr. Onysko desires to receive copies of these documents, his request should be made with the Department who is the actual holder of the records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, is granted in part, and the Utah State Tax Commission is ordered to within ten (10) days disclose the disputed records within its control to Mr. Onysko. The appeal of Mr. Onysko for records held by the Commission but subject to a written agreement with the Utah Department of Workforce Services is denied.

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 20th day of June, 2011

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee