8.24 Justin Keys Appeal - Request GR-18-0709 1-1 -
August 24, 2018
Via Email – diane.foster@parkcity.org
Diane Foster–City Manager
RE: Park City Municipal Corporation’s Partial Denial of GR-18-709.1
Dear Ms. Foster,
On July 9, 2018, 260 AGIO OWNERS ASSOCIATION, INC. (the “Association”), by and
through its firm and counsel Justin Keys, submitted a request for certain records and documents to
Park City Municipal Corporation (“City”) under the Government Records Access & Management
Act (“GRAMA”). Specifically, the Association requested that the City provide
“[a]ny and all documents or other records relating to the review and approval of
venting installed on the sidewall and roof of the Wasatch Brew Pub at 250 Main
Street in Park City, Utah. Any and all documents or other records relating to
complaints, enforcement actions, or citations issued to Wasatch Brew Pub or the
owner of 250 Main Street Park City, Utah relating to the improper venting of
kitchen grease. This should include all correspondence, attachments to emails,
carbon copied or blind copied emails, messages, notes, memoranda and recordings
of conversations, submittals, applications, drawings, engineering submittals,
agreements (including drafts), or other records.
On August 20, 2018, the City provided three documents in response to the Association’s
request, and partially denied its request for record CE-17-00143 because it was classified as
“Protected pursuant to Municipal Code 5-3-7.” The three documents/records provided include:
MECH07-074, CE-17-00151, ME-16-00124.
First, the City did not properly partially deny the records request as it did not cite a valid
provision of the Park City Municipal Code and it did not provide a description of the
documentation.
Second, it is our belief the City’s GRAMA response did not encompass the breadth of the
Association’s GRAMA request. Nor did the City provide any explanation as to why it was
withholding the requested records. Rather, the City simply did not respond at all to these other
requested records and documents. Pursuant to Utah Code section 63G-2-204(8) the failure of the
City in providing the requested records and issuing a proper denial is “considered the equivalent
Diane Foster–City Manager
Park City Municipal Corporation
August 24, 2018
- 2 -
of a determination denying the access to the record. Id. Accordingly, the Association hereby
formally appeals the City’s partial denial of its July 9, 2018 GRAMA request.
It is our understanding that you are the Chief Administrative Officer to whom this appeal
should be directed. If this is not the case, please forward this letter to the appropriate party.
A. Basis for Appeal
The Association submitted its requests on July 9, 2018. The City was required to respond
within ten business days, or no later than July 23, 2018. However, on July 23, 2018, the City
notified the Association that it was exercising its option to receive additional time to respond
because there were “extraordinary circumstance[s].” See Utah Code § 63G-2-204(5). In part, the
City claimed it was entitled to the additional time to produce its GRAMA records because “the
[July 9, 2018] request is for a voluminous quantity of records or a record series containing a
substantial number of records.” See id. §63G-2-204 (5)(c). Accordingly, the City took an additional
15 business days to produce the records and documentation from the July 9, 2018 request.
On August 20, 2018, despite the request for the extension for the “voluminous quantity of
records,” the City produced three records and denied one record as protected. This partial denial
was wrong for two reasons.
First, the partial denial did not conform to Utah Code. In our review, Park City’s
Municipal Code § 5-3-7 is no longer codified under the current code. Pursuant to Utah Code
section 63G-2-205, a denial must contain the valid and applicable “citations to the provisions of
[GRAMA], court rule or order, another state statute, federal statute, or federal regulation that
exempt the record or portions of the record from disclosure.” Id. § 63G-2-205 (b). Moreover, in
its denial, the City must provide “a description of the record or portions of the record to which
access was denied, provided that the description does not disclose… protected information.” Id.
§ 63G-2-205 (c).
As the section of the Municipal Code that was cited is no longer codified and the City
only provided the Association with a title of one document it deemed protected, it did not
provide the Association with 1) a description of the record or the portions of the record to which
access was denied, or 2) citations to the provision of Utah’s GRAMA statute, court rule or order,
another state statute, federal statute, or federal regulation that exempt the record or portions
thereof from disclosure. And, as stated, the City therefore failed to comply with GRAMA, see
id. §§ 63G-2-306, 63G-2-307, 63G-2-308, and the Association is entitled to appeal pursuant to
Utah Code section 63G-2-401(a)(i).
Second, it is our belief that the City failed to produce records that are likely to be within its
control as requested on July 9, 2018 as we have documents/records and records that reference
additional documentations/records, which should have been produced under GRAMA. This
includes without limiting the full scope of the Association’s request: the 2017 complaint indicates
Diane Foster–City Manager
Park City Municipal Corporation
August 24, 2018
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that Rich Navasio was “taking care of this complaint,” but there are not documents or records from
Mr. Navasio regarding this issue, the Association and its counsel have been requesting the city to
follow up on Wasatch Brew Pub’s ventilation system for about eighteen months and there was
only one document produced for this time period, we have emails from City personnel referencing
photos taken for a nine-week period and indicating that other agencies of the City may need to get
involved due to Wasatch Brew Pub’s ventilation system but the emails, photos, and other agencies
involvement were not produced, and the Association believes that there may have been fire or
other issues with Wasatch Brew Pub’s prior ventilation system that the City may have
documentation or records regarding such issues with the prior ventilation system which were not
produced.
Moreover, the City requested an extension from the prescribed GRAMA response time
because “voluminous quantity of records” that were related to the Association’s request. But,
despite the need for an extension because of the voluminous quantity of records, the City on August
20, 2018 produced a mere three records and denied one record as “protected.”
“If the governmental entity fails to provide the requested records or issue a denial within
the specified time period, that failure is considered the equivalent of a determination denying
access to the record.” Id. at § 63G-2-204(8). Given its failure to timely respond to the entire scope
of the Association’s GRAMA request, the City effectively denied these requests under subsection
63G-2-204(8). The Association is entitled to appeal this denial under subsection 63G-2-
401(1)(a)(ii).
Finally, records under GRAMA are presumed to be public. See id. §§ 63G-2-301(4), 63G-
2-302, 63G-2-303, 63G-2-304. Indeed, the City is required to disclose “orders that are made by a
governmental entity in an administrative[ or] adjudicative…proceeding[s],” “information
contained in or compiled from a transcript, minutes, or report of the open portion of a meeting of
a governmental entity,” the “records or parts of records filed with or maintained
by…governmental entities that give public notices of: (i) titles or encumbrances to real property,
(ii) restrictions on the use of real property, (iii) the capacity of persons to take or convey title to
real property, or (iv) tax status for real and personal property,” and “summary data,” which means
any and all statistical data derived from restricted records. Id. § 63G-2-301(2).
Also, the City is normally required to disclose “administrative staff manuals, instructions
to staff, and statements of policy,” “records documenting a contractor’s” or other entities
“compliance with the terms of a contract with a governmental entity” and other “records
documenting the services provided by a contractor” or other entities, “contracts entered into by a
governmental entity,” “chronological logs and initial contact reports,” “correspondence by
and with a governmental entity in which the governmental entity determines or states an
opinion upon the rights of …a political subdivision, the public, or any person,” empirical
data, drafts that were circulated beyond the governmental entity and its immediate business
associates, and “drafts [not] finalized but were relied on by the governmental entity in
carrying out action or policy.” Id. § 63G-2-301(3).
Diane Foster–City Manager
Park City Municipal Corporation
August 24, 2018
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Accordingly, the contents of the City’s partial denial should be reviewed under the
presumption that records are public.
B. Relief Requested
First, the Association requests that the City review CE-17-00143 and assess its
classification. If the City is to affirms its denial of producing this record, the City should provide
a proper citation and description of the record pursuant to Utah Code section § 63G-2-205 (b)-
(c).
Second, given the City’s failure to offer any explanation or its reasons for denying the full
scope of the Association’s requests, the Association lacks the information needed to assess whether
the denial, or any portion of the denial, was justified under GRAMA. Therefore, the Association
requests that the City review its records and documents in effort to discover any overlooked
documents or records related to the Association’s July 9, 2018 GRAMA request including without
limitation the documents and records mentioned in this appea, and any and all citations of and
notices of violations for the Wasatch Brew Pub as least since 2010. To the extent the City
contends that any or all of these records are private, controlled, protected, or otherwise exempt
from GRAMA, the Association requests that the City provide such valid and applicable
classifications and descriptions of the documentation/records it is denying as required by Utah
Code section 63G-2-205 (b)-(c). In the alternative, the Association appeals the City’s presumptive
denial in its entirety and requests that City produce the records pursuant to the July 9, 2018
GRAMA request.
If you have any questions or would like to discuss this matter, please contact me directly.
You can reach me as follows:
Shelby Jaye Hughes
HOGGAN LEE HUTCHINSON
1225 Deer Valley Drive, Suite 201
Park City, Utah 84060
(435) 731-9196
Shelby@HLHParkCity.com
Kindly,
HOGGAN LEE HUTCHINSON
Shelby Jaye Hughes