BEFORE THE GOVERNMENT RECORDS OFFICE
OF THE STATE OF UTAH
JOSEPH L. PUENTE,
Petitioner,
v.
GOVERNOR'S OFFICE OF ECONOMIC DEVELOPMENT,
Respondent.
PETITIONER'S REBUTTAL TO RESPONDENT
GOVERNOR’S OFFICE OF ECONOMIC DEVELOPMENT’S
AMENDED STATEMENT [OF] FACTS
Case No. 2026-058
Honorable Director Lonny Pehrson
Petitioner Joseph L. Puente, appearing pro se, pursuant to Utah Code Ann. § 63G-2-403(3)(b) and Administrative Rule R20-3-2, respectfully submits this Rebuttal to the Governor's Office of Economic Development's ("GOED") Amended Statement of Facts, Reasons, and Legal Authority filed May 21, 2026.
INTRODUCTION
GOED's filing rests on three flawed premises: first, that every responsive Nuovo-related record falls categorically within Utah Code § 63G-2-305(35); second, that the absence of a final, executed contract permits GOED to withhold every other record concerning a proposed $2,000,000 expenditure of public funds; and third, that factual disputes about the existence of records and the adequacy of GOED's search may be avoided by labeling related issues "outside the scope" of this appeal. None of those premises survives the text of GRAMA or the contemporaneous record of the January 8,
2026 Board meeting.
Section 63G-2-305(35) protects only records that would reveal negotiations regarding incentives, and only if disclosure would result in actual economic harm to the person or place the governmental entity at a competitive disadvantage. Section 63G-2-201 confirms that records are public unless otherwise expressly provided by statute, and a governmental entity must conduct a reasonable, good-faith search for responsive records. GOED's submission does not satisfy either standard.
I. FACTUAL POINTS NOT IN GENUINE DISPUTE
GOED acknowledges, and Petitioner agrees, that on January 8, 2026, Scott Anderson presented Nuovo Film Festival Inc.'s proposal at a public GOED Board meeting and that the Board voted unanimously to recommend a one-time $2,000,000 grant from the Industrial Assistance Account ("IAA"). GOED also acknowledges that the audio recording of that meeting is publicly available through the Utah Public Notice system.
GOED further acknowledges that Petitioner's February 9, 2026 GRAMA request sought three distinct categories of records: (1) the complete IAA application and attached materials; (2) any written documentation — letters, emails, and memoranda — related to the IAA grant and the applicant, transmitted between GOED staff, board members, applicants, other state offices, agencies and employees, and third parties; and (3) any award letter, scoring sheets, or executed contracts for FY 2025 and/or 2026. GOED's own filing therefore confirms that this appeal concerns far more than a single final contract or formal application packet.
II. SPECIFIC FACTUAL DISPUTES WITH GOED'S STATEMENT OF FACTS
A. GOED's "No Records Exist" Assertion Is Uncertified and Non-Responsive to the Bulk of the Request.
GOED's Statement asserts at page 4 that certain records — namely a formal application, an award letter, and an executed contract — "did not exist" because no formal application had yet been submitted to the Executive Director. That assertion is directed only at categories (1) and (3) of Petitioner's request. It is silent regarding category (2): the broad universe of written communications between GOED staff, board members, and Nuovo representatives before, during, and after the January 8, 2026 Board meeting.
The January 8 meeting record makes the existence of such communications not merely plausible — it makes their non-existence implausible. The meeting was publicly noticed with a specific agenda item titled "Nuovo Film Festival Incorporated"; included an "All Materials" packet distributed to board members in advance; featured a detailed, multi-part presentation by Mr. Anderson covering five operational "pillars," specific cost comparisons, named partners (Harbor Fund and the Utah System of Higher Education), and a proposed governance structure; proceeded directly to a pre-drafted written motion read into the record twice — naming the grantee, the fund, and the dollar amount; and concluded with a formal roll-call vote and the chair's declaration, "Motion passes."
Preparation of that magnitude does not happen spontaneously. Staff memoranda, briefing materials, internal e-mail coordination, the draft motion itself, any application-equivalent submission by Nuovo, and any internal communications regarding the source of the $2,000,000 — particularly whether those funds derived from the lapsed conditional Sundance appropriation in S.B. 2 (FY 2025) — virtually certainly exist as records. GOED has offered no sworn certification, no description of its search methodology, and no identification of the custodians, e-mail systems, shared drives, or
date ranges searched. Under Utah Code § 63G-2-403(11)(b), the burden is on GOED to justify its denial. A bare assertion that no formal application exists cannot satisfy that burden as to the far larger category of communications Petitioner actually requested.
B. GOED Failed to Apply the Two-Part Conjunctive Test of § 63G-2-305(35). The entirety of GOED's legal theory rests on Utah Code § 63G-2-305(35), which classifies as "protected":
records that would reveal negotiations regarding assistance or incentives offered by or requested from a governmental entity for the purpose of encouraging a person to expand or locate a business in Utah, but only if disclosure would result in actual economic harm to the person or place the governmental entity at a competitive disadvantage, but this section may not be used to restrict access to a record evidencing a final contract.
The statute imposes a two-part conjunctive threshold. A record is protected only if both conditions are met: (1) the record would reveal "negotiations" for incentives, and (2) disclosure would result in actual economic harm or place GOED at a concrete competitive disadvantage. GOED's filing satisfies neither prong on a record-by-record basis.
(1) Not all responsive records are "negotiations." GOED treats every written communication touching the Nuovo IAA proposal — without exception — as a negotiation record. That is legally overbroad. None of the following are, by their nature, communications between GOED and a private party negotiating relocation or expansion incentives: the public Board-meeting agenda and "All Materials" packet; staff memoranda and briefing materials prepared for the Board's deliberation; the pre-drafted written motion read into the record on January 8; the Board's minutes and transcript (already public under the Open and Public Meetings Act); and any internal economic-impact analyses, scoring sheets, or staff recommendations. Each is an internal governmental document; none is a communication "offered by or requested
from" an applicant within the meaning of § 63G-2-305(35).
(2) GOED did not demonstrate "actual economic harm" or a specific competitive disadvantage. GOED's entire showing on the second prong is a single, generalized paragraph at page 6 asserting that disclosure "could have a chilling effect" on future negotiations with unidentified future parties. That is a policy argument about hypothetical harm, not a record-specific demonstration of actual harm. The word "actual" in the statute means real and demonstrable, not speculative. GOED has not identified: (i) which specific records, if released, would reveal Nuovo's proprietary competitive strategies; (ii) how a newly formed Utah nonprofit created in the context of a public post-Sundance initiative faces competitive exposure from another state; (iii) what specific negotiation with what specific competing jurisdiction is ongoing such that disclosure would undermine GOED's position; or (iv) any indication that Nuovo itself has invoked confidentiality or asserted harm.
GOED's reliance on the Sundance example is, in fact, self-defeating. Sundance has already departed for Boulder, Colorado. There is no ongoing competitive negotiation with Colorado over Sundance. The current matter concerns a newly-created Utah-based nonprofit whose stated purpose is to build a Utah film ecosystem — an entity with no competing state bidding for its location.
(3) The final-contract carve-out confirms the exemption's limits. Section 63G-2-305(35) provides that "this section may not be used to restrict access to a record evidencing a final contract." That clause does not authorize an agency to withhold every other record connected to a proposed major public grant until — or indefinitely, if — a contract is signed. It guarantees disclosure of final agreements; it does not deputize agencies to draw a categorical curtain over every preceding record.
C. The January 8, 2026 Board Vote Was Not an Informal Advisory Act.
GOED's Statement repeatedly characterizes the January 8 Board action as an "informal presentation" of an "idea" considered in an "advisory role." That characterization is contradicted by the contemporaneous public record. The transcript and the publicly-available audio show, in sequence: (i) staff introduction of the item as an IAA grant proposal; (ii) a pre-drafted written motion read into the record, naming the grantee, the fund, and the $2,000,000 amount; (iii) a detailed operational presentation by Mr. Anderson; (iv) substantive governance and implementation questions from Board members; (v) a second reading of the motion; (vi) named members moving and seconding the motion; (vii) a roll-call vote with each member voting "yes" individually; (viii) the chair's declaration, "Motion passes"; and (ix) congratulatory remarks expressing the Board's anticipation of "helping make this happen for the State of Utah."
A pre-drafted written motion, a recorded roll-call vote, a declaration of passage, and on-the-record congratulations are not the procedural markers of an informal advisory discussion; they are the markers of a formal institutional action. The legal label GOED now attaches — "recommendation" rather than "approval" — may be accurate as to the allocation of final authority under § 63N-3-103, but it does not transform the contemporaneous factual record into something it is not. The GRAMA significance is straightforward: a formal, recorded, public Board action concerning a $2,000,000 expenditure necessarily generated preparatory records — agendas, briefing packets, staff memoranda, the draft motion, and coordinating e-mails — that are records of government activity subject to GRAMA's presumption of openness. They are not transmuted into "negotiations" merely because GOED now relabels the Board's role.
D. GOED's Reasonable-Search Showing Is Conclusory.
GOED correctly recites that GRAMA requires a reasonable search for responsive records, but its filing offers only the bare conclusion that such a search occurred. It does not identify which custodians' files were searched, which e-mail or messaging
systems were queried, what date ranges were applied, or whether the communications of Board members and other involved state officials were included. That lack of detail is dispositive here because GOED simultaneously claims certain records do not exist while acknowledging that other disputed responsive materials do exist and will be tendered for in camera review. A meaningful description of search scope and methodology is essential for the Director to evaluate whether GOED has adequately searched within each of the three categories enumerated in Petitioner's February 9, 2026 request.
E. GOED Did Not Address Several Categories of Records From Petitioner's Exhibits, and the "Out-of-Scope" Issues Still Bear on GRAMA Questions.
GOED's filing makes no reference to several categories of materials Petitioner placed in the record. First, Petitioner raised, with documentary support (AppEx_14 — S.B. 2, FY 2025 Appropriations Act), the question whether IAA funds used for the Nuovo grant originated from the lapsed conditional Sundance appropriation. The appropriation's conditions and lapse provisions are directly relevant to whether the IAA was lawfully available for this purpose, and to what internal analyses or communications GOED generated on that question. Second, Petitioner submitted a formal whistleblower complaint to the Utah Office of the State Auditor (Case 016517, AppEx_15) — communications surrounding which are themselves potentially responsive records. Third, Petitioner submitted a detailed ethics evaluation (AppEx_17) raising concerns about Mr. Anderson's dual role as presenter/advocate for Nuovo and apparent incorporator/board member of the recipient entity, and concerning a Jefferson Moss appointee sitting on Nuovo's board while Mr. Moss holds final grant-approval authority. Fourth, GOED issued press releases for other grant approvals at the January 8, 2026 Board meeting but issued no Nuovo-specific press release, and its filing does not acknowledge or explain that disparity.
Petitioner agrees this forum does not adjudicate appropriations law, ethics violations, or audit complaints in the abstract. But those subjects still bear directly on GRAMA questions properly before the Director: what records exist, whether additional records should have been found, how GOED internally classified or discussed the Nuovo proposal, and the strength of the public accountability interest in disclosure under § 63G-2-201. If GOED created internal analyses, talking points, e-mails, or memoranda concerning the source of funds, the propriety of the proposed grant, perceived conflicts, or media strategy, those materials are records under GRAMA and are not transformed into "negotiations" by GOED's preferred framing.
III. IN CAMERA REVIEW SHOULD NOT REPLACE SEGREGATION AND PARTIAL DISCLOSURE
GOED states that it will tender disputed materials to the Director for in camera review and suggests that additional records may be withheld under other GRAMA provisions, including attorney-client communications, temporary drafts, and certain gubernatorial policy materials. In camera review is an important tool for testing those claims, but it does not eliminate GOED's obligation to release any reasonably segregable non-exempt portion of a responsive record. Where a record contains both protected and non-protected information, the proper remedy is targeted redaction — not categorical withholding.
IV. REQUESTED RELIEF
For the foregoing reasons, Petitioner respectfully requests that the Director:
1. Find that GOED has not carried its burden under Utah Code § 63G-2-403(11)(b) to demonstrate that the requested records either do not exist or are wholly exempt from disclosure under § 63G-2-305(35);
2. Reject GOED's categorical reliance on § 63G-2-305(35) for all Nuovo-related records unless GOED demonstrates, on a record-by-record basis, both that disclosure would reveal negotiations and that disclosure would result in actual economic harm or place GOED at a concrete competitive disadvantage;
3. Order GOED to conduct a thorough, documented, good-faith search for all records responsive to Petitioner's February 9, 2026 request — including staff memoranda, briefing packets, the draft motion, internal and external e-mails, and any application-equivalent materials submitted by or on behalf of Nuovo Film Festival Inc. — and to certify by sworn statement the custodians, systems, and date ranges searched;
4. Review the withheld records in camera and order disclosure of all responsive non-exempt records, with redactions limited to information that is actually protected under GRAMA and with an itemized statutory basis stated for each withheld portion;
5. Find that § 63G-2-305(35) may not be applied as a categorical shield to non-negotiation records, including Board meeting preparatory materials, staff analyses, the pre-drafted motion, scoring sheets, and internal communications concerning the source of funds and any conflicts of interest; and
6. Grant such additional relief as the Director deems appropriate to ensure GOED's full compliance with GRAMA.
DATED this 21st day of May, 2026. Respectfully submitted,
(SIGNED)
Joseph L. Puente
[◼︎◼︎◼︎◼︎◼︎◼︎◼︎◼︎◼︎◼︎◼︎◼︎]
Salt Lake City, Utah [◼︎◼︎◼︎◼︎◼︎]
Email: [◼︎◼︎◼︎◼︎◼︎◼︎◼︎◼︎◼︎◼︎◼︎]
Petitioner, Pro Se
CERTIFICATE OF SERVICE
I, Joseph L. Puente, hereby certify that on this 21st day of May, 2026, I caused a true and correct copy of the foregoing PETITIONER'S REBUTTAL TO RESPONDENT GOVERNOR'S OFFICE OF ECONOMIC DEVELOPMENT'S AMENDED STATEMENT OF FACTS to be served on the following by By electronic mail:
Todd Karl Jenson (#10421)
Assistant Attorney General
Derek E. Brown (#10476)
Utah Attorney General
160 East 300 South, 5th Floor
P.O. Box 140856
Salt Lake City, Utah 84114-0856
Email: toddkjenson@agutah.gov
Government Records Office
Division of Archives and Records Service
Attn: Executive Secretary
346 South Rio Grande Street
Salt Lake City, Utah 84101
(SIGNED)
Joseph L. Puente
Petitioner, Pro Se