State Records Committee Appeal 03-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KEVIN TOLTON, Petitioner, vs.
TOWN OF ALTA, Respondent.

DECISION AND ORDER
Case No. 03-07

On May 21, 2003, the State Records Committee conducted a status hearing concerning its previous order in this matter. See State Records Committee Decision and Order No. 03-03. As indicated in that order, Petitioner Kevin Tolton seeks access to various documents he maintains are, or should be, in the Town of Alta's possession. The Town has provided Petitioner with preliminary responses to his 89 requests. In many instances, responding to these requests will require that the Town search, retrieve and compile records in a form other than that normally maintained. Consequently, one of the principal issues in the current dispute concerns the issue of fees. A related issue is whether the Town's asserted classification of some records as protected is accurate. The State Records Committee, upon consideration of further evidence and testimony, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. In many of its responses to Petitioner's requests, the Town has estimated the amount of time it will take to search for and retrieve the records sought. In some instances, the Town has estimated it will take as long as 10 hours to research and compile documents within the scope of the request. Both parties agree that the Utah Supreme Court's decision in Graham v. Davis County Solid Waste Mgmt., 1999 UT App 136, cert. denied, 994 P.2d 1271 (Utah 1999), is applicable to this case.

2. Among other things, the court in Graham held that:
. . . a public body . . . may charge members of the public a retrieval fee associated with a public records request . . ., but must be reasonable in light of the circumstances surrounding the request.
In keeping with the purposes of GRAMA and maintaining the balance between the public's right to access and government's interest in operating efficiently, we conclude that, under section 63 2 203(2), governmental entities may not charge for merely assembling documents. That is, an agency may not charge for a request under section 63 2 203(2) if the agency is only required to retrieve a single document or set of documents from a readily available source and provide them to the requestor for inspection. An agency may, however, assess fees in conjunction with a record request that involves extracting materials from a larger document or source and compiling them in a different form. In other words, if an agency is required to do more than simply retrieve and make available a record in its original form, then the agency may charge a compilation fee for its production.

Id. at 25-26. The Committee acknowledges that the right to assess compilation fees is not absolute. In the court's words:

However, the right of government agencies to assess these types of fees is not absolute. The government bears the burden of establishing the necessity of "compiling" the records in a manner so as to justify the charging of fees to the public. . . .

Id. at 27. Summarizing the legal standard, the court concluded as follows:

In sum, a governmental agency may assess compilation fees in conjunction with a request for records only if: (1) a request specifies that the documents be compiled in a form other than that used by the agency and the requestor consents to the imposition of compilation fees; or (2) the request, without specifying that the records be compiled in a form other than that maintained by the agency, nonetheless requires the agency to extract materials from a larger document or source and it is not feasible or reasonable to allow the requestor to compile the records. Finally, to protect the public's right to access public records, we conclude that when a request for public records does not specify that the records be compiled in a form other than that used by the agency, the burden is on the agency to show that it is impossible to allow the requestor to obtain the records on his or her own and that compliance with the request requires the compilation of the records in a form other than that maintained by the agency.

Id. at 28. Applying these principles to the present case, the Committee is persuaded that the nature, scope and complexity of Petitioner's requests justifies the assessment of a reasonable search, retrieval and compilation fee under Utah Code Ann. 63-2-203(2) when the request requires that such records be extracted "from a larger document or source and compiling them in a different form."

3. The Town has asserted that the records requested in Requests 1, 11, 12, 14, 20 and 88 are properly classified as protected. See Utah Code Ann. 63-2-304(11). The Committee agrees that those records are appropriately classified as protected records under that section, since disclosure of those records would jeopardize the security of the water and sewer infrastructure of the Town. The Town must provide a description of the records withheld, however, in accordance with Utah Code Ann. 63-2-205(2).

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 23rd day of May, 2003.

BY THE STATE RECORDS COMMITTEE

Robert Woodhead, Chairperson
State Records Committee