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    Robert Gehrke
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    This opinion, issued Monday by the Utah Records Committee, held that the committee had no authority to force Utah County Commissioner Bill Lee to turn over his phone to prove there were no records responsive to a citizen's open records request.

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    This opinion, issued Monday by the Utah Records Committee, held that the committee had no authority to force Utah County Commissioner Bill Lee to turn over his phone to prove there were no records responsive to a citizen's open records request.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as pdf or txt
    85 views7 pages

    Utah Records Committee Opinion

    Uploaded by

    Robert Gehrke
    This opinion, issued Monday by the Utah Records Committee, held that the committee had no authority to force Utah County Commissioner Bill Lee to turn over his phone to prove there were no records responsive to a citizen's open records request.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as pdf or txt
    of 7

    BEFORE THE STATE RECORDS COMMITTEE OF THE

    STATE OF UTAH

    MARK ALLEN,
    DECISION AND ORDER
    Petitioner,

    v.
    Case No. 21-36
    UTAH COUNTY,

    Respondent.

    By this appeal, Petitioner, Mark Allen, seeks access to records allegedly held by

    Respondent, Utah County.

    FACTS

    On December 23, 2020, Mr. Allen filed a records request with Utah County pursuant to

    the Government Records Access and Management Act (“GRAMA”). Mr. Allen requested copies

    of all cell phone texts between Utah County Commissioner Bill Lee and two specified

    individuals from January 1, 2020 to the date of the request. Mr. Allen also requested copies of

    all incoming and outgoing messages related to Bridal Veil Falls and public comments regarding

    Bridal Veil Falls between November 1, 2020 and December 14, 2020. In an email dated January

    6, 2021, a paralegal with the Utah County Attorney’s Office denied Mr. Allen’s request for

    records of telephonic communication involving Commissioner Lee stating that “Utah County

    does not pay for his private cell phone and subsequently we do not prepare, own, receive or

    retain the associated records.”

    Allen v. Utah Cty.


    Case No. 21-36
    Page 1
    In a letter dated January 28, 2021, Mr. Allen filed an appeal with the Chair of the Board

    of County Commissioners, stating that “the records…are of great interest to the public process of

    protecting a public asset, namely Bridal Veil Falls.” After no response was received by Mr.

    Allen from Respondent, Mr. Allen filed an appeal with the State Records Committee

    (“Committee”). On June 10, 2021, the Committee held a hearing where the parties were allowed

    to participate in person and electronically. After carefully considering the parties’ arguments and

    the evidence presented, the Committee issues the following Decision and Order.

    STATEMENT OF REASONS FOR DECISION

    1. In enacting GRAMA, the Legislature recognized the public’s constitutional right of

    access to information concerning the conduct of the public’s business. Utah Code §

    63G-2-102(1)(a). It is the Legislature’s intent through GRAMA to promote the public’s

    right of easy and reasonable access to unrestricted public records. Utah Code §

    63G-2-102(3)(a). Similarly, the Legislature “finds and declares” in Utah’s Open and

    Public Meetings Act that “the state, its agencies and political subdivisions, exist to aid in

    the conduct of the people’s business.” Utah Code § 52-4-102(1).

    2. Under GRAMA, a “record” is defined to include electronic data: (1) That is prepared,

    owned, received, or retained by a governmental entity or political subdivision; and (2)

    Where all of the information in the original is reproducible by photocopy “or other

    mechanical or electronic means.” Utah Code § 63G-2-103(22)(a). A record under

    GRAMA is a public record unless otherwise expressly provided by statute. Utah Code §

    63G-2-201(2).

    3. In the present case, County Commissioner Bill Lee is one of three elected county

    Allen v. Utah Cty.


    Case No. 21-36
    Page 2
    commissioners for Utah County. Mr. Allen requested copies of all cell phone texts

    between Commissioner Lee and two specified individuals, copies of all incoming and

    outgoing messages related to Bridal Veil Falls, and public comments regarding Bridal

    Veil Falls. Mr. Allen argued that decisions regarding the potential development of Bridal

    Veil Falls is an issue of great public interest. Respondent argued that these records

    should not be considered records under GRAMA because “Utah County does not

    prepare, own, receive, or retain private cell phone telephonic communications of County

    employees, including Utah County Commissioners.”

    4. The Committee has previously addressed issues involving communications by elected or

    appointed officials using personal e-mail accounts or personal electronic devices. In

    Cromar v. City of Cedar Hills, State Records Committee Case No. 12-11 (June 26, 2012),

    the Committee ordered release of e-mail communications “using whatever e-mail

    address” between Cedar Hills City Council members that were prepared, owned,

    received, or retained by Cedar Hills. In Henderson v. San Juan Cty., State Records

    Committee Case No. 19-33 (Sept. 23, 2019), the Committee found that texts created by a

    county commissioner in his public capacity as a commissioner as opposed to his capacity

    as a private individual “may be considered ‘records’ under GRAMA pursuant to Utah

    Code § 63G-2-103(22)(a).” The Committee further stated that:

    Given the Legislative declaration of public policy stated in Utah’s Open


    and Public Meetings Act (“OPMA”) that political subdivisions “take their
    actions openly” and “conduct their deliberations openly,” it would be
    inappropriate for a public official to attempt to circumvent the
    requirements of OPMA and GRAMA by using a private device while
    “conduct[ing] the people’s business.”

    Allen v. Utah Cty.


    Case No. 21-36
    Page 3
    5. The Committee reaffirms that a record prepared by a government employee within his or

    her capacity as a government employee, may be considered a “record” subject to

    GRAMA. Additionally, in the case of government employees being an elected or

    appointed official, there should be a higher standard of transparency in order to allow the

    general public the opportunity to review how these officials “conduct the people’s

    business.”

    6. Based upon the evidence presented, the Committee is convinced that any text messages

    sent or received by Commissioner Lee concerning Bridal Veil Falls on his personal cell

    phone should be considered records subject to GRAMA pursuant to Utah Code §

    63G-2-103(22)(a). Even though such communications may have occurred through a

    personal cell phone, there is little question that communications by Commissioner Lee

    regarding Bridal Veil Falls would be related to his position as a Utah County

    Commissioner and not related to his capacity as a private citizen. Accordingly, the

    Committee finds that Commissioner Lee’s communications in this case may be

    considered records “prepared…by a governmental entity” subject to GRAMA.

    7. The second question presented to the Committee is whether Respondent possesses the

    requested records. Adam M. Beck, Deputy Utah County Attorney and Legal Counsel for

    Respondent argued that the records cannot be produced to Mr. Allen because Respondent

    does not possess the alleged records. In his written legal statement provided to the

    Committee, Mr. Beck states that the Utah County Attorney’s Office contacted

    Commissioner Lee and the Utah County Commission Office directly to inquire into the

    existence of any responsive records. Mr. Beck wrote that the Utah County Attorney’s

    Allen v. Utah Cty.


    Case No. 21-36
    Page 4
    Office “has made every effort to comply with Mr. Allen’s GRAMA request” and that a

    “thorough search of the records that [Respondent] maintains has not yielded any

    responsive records nor has any associated Utah County employees identified a record that

    would be responsive to Mr. Allen’s request.” Mr. Beck further stated that there is no

    factual evidence to suggest that Commissioner Lee actually used his private cell phone to

    communicate with the individuals named by Mr. Lee in his records request.

    8. After having considered the arguments and the evidence presented to the Committee, the

    Committee is persuaded that Respondent does not possess any records responsive to Mr.

    Allen’s records request. Without any persuasive evidence that Respondent possesses the

    requested records, the Committee will not order Respondent to provide a record the

    Committee does not believe Respondent possesses. However, it is the Committee’s

    expressed hope that records management practices of governmental entities will be

    changed in the near future in order to allow the public to have greater access to electronic

    public communications by public officials acting within their capacity as public officials,

    regardless of whether the communications are made through public or private electronic

    devices.

    ORDER

    THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Allen, is hereby

    DENIED.

    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

    Allen v. Utah Cty.


    Case No. 21-36
    Page 5
    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 parties’ rights

    on appeal, a party may wish to seek advice from an attorney.

    PENALTY NOTICE

    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. Utah Code §

    63G-2-403(15)(d)(i)(B). 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).

    Allen v. Utah Cty.


    Case No. 21-36
    Page 6
    Entered this 21 day of June 2021

    BY THE STATE RECORDS COMMITTEE

    KENNETH R. WILLIAMS
    Chair, State Records Committee

    CERTIFICATE OF SERVICE

    I hereby certify that I served a true and correct copy of the foregoing Decision and Order, via
    electronic mail and U.S. mail postage prepaid, this 21 day of June 2021 to the following:

    MARK ALLEN ADAM BECK


    Protect and Preserve American Fork Canyon Deputy Utah County Attorney
    [email protected] 100 East Center Street, Suite 2100
    Petitioner Provo, Utah 84606
    [email protected]
    Counsel for Respondent, Utah County

    ____________________________________
    Rebekkah Shaw
    Executive Secretary

    Allen v. Utah Cty.


    Case No. 21-36
    Page 7

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