Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2011-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JUDY FAHYS, SALT LAKE TRIBUNE, Petitioner, vs.

UTAH DEPARTMENT OF COMMUNITY AND CULTURE, Respondent.

DECISION AND ORDER

Case No. 11-14

By this appeal, Petitioner, Judy Fahys, Environment Reporter for the Salt Lake Tribune, appeals a denial from Respondent, Department of Community and Culture (“DCC”), of her request for records pertaining to staff changes and/or restructuring in the archaeology section of DCC.

FACTS

In a letter dated June 27, 2011, Ms. Fahys submitted a records request to DCC pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Fahys asked for copies of communications between DCC and “other executive branch offices, offices of the Utah State Legislature, the Utah Transit Authority and the Kane County Water Conservancy District” regarding the “positions of the State Archaeologist, the assistant to the state archaeologist, and the physical anthropologist.” Ms. Fahys amended her request in a letter dated July 7, 2011 narrowing the period of time from “July 1, 2005 thru today.”

In an e-mail dated July 11, 2011, Michael Hansen, Acting Executive Director for DCC wrote that since the request involved “documents and communications of numerous people over the last six years,” DCC would be unable to provide the information within five business days. Mr. Hansen added:

We want very much to provide you the information you are requesting, but the volume of work required to do so is very high, so I need to let you know that we will not be able to provide it in the requested time frame [due] to the extraordinary circumstances. Please let me know how you would like to proceed.

However, in a later e-mail on the same day, Mr. Hansen wrote that “access to that information is denied because the request is not ‘reasonably specific’ according to 63G-2-204(1)(b).” Mr. Hansen later wrote to Ms. Fahys on July 12, 2011 that he “was advised to just deny that specific request because our people couldn’t even calculate the cost.” When Ms. Fahys inquired about the “GRAMA appeal procedures” for DCC, Mr. Hansen responded in an e-mail dated August 11, 2011 that “[t]echnically, the department denied that last request, so your next step would be to appeal to the State Records Committee.”

Petitioner now appeals to the Utah State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 8, 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. Utah Code Ann. § 63G-2-204(1)(b) requires a person making a request for a record to furnish the governmental entity with a written request containing “a description of the record requested that identifies the record with reasonable specificity.”

3. After reviewing the arguments submitted by the parties and hearing oral arguments and testimony, the Committee is convinced that Petitioner’s request for records of communications between DCC and specified executive and legislative offices was “reasonably specific” pursuant to Utah Code Ann. § 63G-2-204(1)(b).

Even though the requested records may not be in a form normally maintained by DCC, (See also, Utah Code Ann. § 63G-2-203), Petitioner’s request was reasonably specific enough for DCC to understand what records were being requested in order to fulfill the request.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Judy Fahys, Environment Reporter for the Salt Lake Tribune, is GRANTED.

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 16th day of September 2011.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee