State Records Committee Appeal 03-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KEVIN TOLTON, Petitioner vs.
TOWN OF ALTA, Respondent

DECISION AND ORDER
Case No. 03- 03

By this appeal, Kevin Tolton seeks access to various records he maintains are in the Town of Alta's possession, as identified in records requests dating back to May 28, 2002.

The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on February 12, 2003, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act ("GRAMA") specifies that "[a]ll records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). AEvery person has the right to inspect a public record free of charge and the right to take a copy of a public record during normal working hours subject to Sections 63-2-203 and 63-2-204." Utah Code Ann. 63-2-201(1). Records classified as "private, controlled or protected" or otherwise "restricted pursuant to court rule, another state statute, federal statute, or federal regulation . . ." are not public. Utah Code Ann. 63-2-201(3).

2. A person making a records request to a governmental entity must identify the record with "reasonable specificity." Utah Code Ann. 63-2-204(1). A government entity has no duty to "create a record in response to a request," but it shall provide a record in a particular format if:

(i) the governmental entity is able to do so without unreasonably interfering with the governmental entity's duties and responsibilities; and

(ii) the requester agrees to pay the governmental entity for its costs incurred in providing the record in the requested format in accordance with Section 63 2 203.

Utah Code Ann. 63-2-201(8). If responding to a records request requires that the government entity compile a record in a form other than that normally maintained by that entity, it may include the "cost of staff time for summarizing, compiling, or tailoring the record into an organization to meet the person's request" as well as "the cost of staff time for search, retrieval, and other direct administrative costs for complying with the request." Utah Code Ann. 63-2-203(2)(b).1 A governmental entity may not charge a fee, however, for "reviewing a record to determine whether it is subject to disclosure, except as permitted by Subsection (2)(b); or inspecting a record." Utah Code Ann. ' 63-2-203(5).

3. If a governmental entity is not able to respond to a request within ten days after receiving a reasonably specific request, it may notify the requester that because of one of several enumerated "extraordinary circumstances," it needs additional time to respond. See Utah Code Ann. 63-2-204(3)(iv). The following circumstances allow a governmental entity to delay approval or denial by an additional period of time, as specified in Utah Code Ann. 63-2-204(5): . . . .

(c) the request is for a voluminous quantity of records;

(d) the governmental entity is currently processing a large number of records requests;

(e) the request requires the governmental entity to review a large number of records to locate the records requested;

(f) the decision to release a record involves legal issues that require the governmental entity to seek legal counsel for the analysis of statutes, rules, ordinances, regulations, or case law;

(g) segregating information that the requester is entitled to inspect from information that the requester is not entitled to inspect requires extensive editing; . . .

Utah Code Ann. 63-2-204(4). For claims under Subsections (4)(c), (d) or (e), the governmental entity is required to: "(i) disclose the records that it has located which the requester is entitled to inspect; (ii) provide the requester with an estimate of the amount of time it will take to finish the work required to respond to the request; and (iii) complete the work and disclose those records that the requester is entitled to inspect as soon as reasonably possible; . . ." Utah Code Ann. 63-2-204(5) (emphasis added). The government entity must respond to claims under subsection (f) "within five business days after the response time specified for the original request has expired. Likewise, the law requires that claims under Utah Code Ann. 63-2-204(4)(g) be fulfilled "within 15 business days from the date of the original request." Utah Code Ann. 63-2-204(5)(e).

3. In this unusual case, the Town maintains that it has either responded to Petitioner's requests or was unable to do so because the records were not identified with reasonable specificity. Similarly, the Town maintains that the claimed lack of specificity in combination with the volume of requests from Petitioner (and persons associated with him) have become unduly burdensome on the Town. In light of the statutory framework described above and these facts, the Committee finds as follows.

4. First, the volume of Petitioner's requests is not a recognized basis for denial of access, provided that the request at issue does not "unreasonably duplicate[] prior records requests from that person." Utah Code Ann. 63-2-201(10)(b) (emphasis added). Since the Town has apparently provided some records in response to Petitioner's requests, and asserts it is unclear as to which requests Petitioner considers to be still outstanding, the Committee directs Petitioner to prepare a consolidated list of all outstanding records requests. The Petitioner shall specify whether each request is for inspection or copies of the record. The Town shall then respond to this request in accordance with Utah Code Ann. 63-2-204(3) indicating which records have been previously produced. If the Town claims that it has already produced all records in its possession that are responsive to a request, it shall specify the date said records were produced, by whom they were produced and the manner of delivery (e.g., enclosed with letter, faxed, hand-delivered, available for pickup at Town offices, etc.). If the Town denies any of the requests in whole or in part, it shall provide Petitioner with a notice of denial conforming with Utah Code Ann. 63-2-205.

5. Second, where Petitioner requests inspection of records, the Town shall provide a secure area for Petitioner to do so. The Town is entitled to establish and enforce reasonable security measures to safeguard any public documents it makes available for inspection, but it may not charge Petitioner a fee if it chooses to have a staff person present during the inspection. See Utah Code Ann. 63-2-201(1). After inspection, Petitioner may designate specific records for copying. The Town may "require payment of past fees and future estimated expenses before beginning to process a request [that identifies the record with reasonable specificity] if fees are expected are expected to exceed $50, or if the requester has not paid fees from previous requests." Utah Code Ann. 63-2-203(8).

6. Third, given the complex and unique nature of this case, the Committee designates its Chair to act as a mediator for the parties in the event any disputes arise as to compliance with the terms of this Order.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal is granted in part and denied in part upon the terms and conditions as set forth above.

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 by Utah Code Ann. 63-2-404. 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.

Entered this 18th day of February, 2003.

BY THE STATE RECORDS COMMITTEE

Cherie Willis, Chairperson
State Records Committee

1 The hourly charge is not to Aexceed the salary of the lowest paid employee who, in the discretion of the custodian of records, has the necessary skill and training to perform the request . . .@ Political subdivisions are entitled to establish fees for this service and other related services by Aordinance or formal written policy adopted by the governing body.@ Utah Code Ann. ' 63-2-203(3)(b).