State Records Committee Appeal Decision 2010-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVE MAXFIELD, Petitioner, vs.

OFFICE OF THE LIEUTENANT GOVERNOR, Respondent.

DECISION AND ORDER

Case No. 10-6

By this appeal, Petitioner, Steve Maxfield seeks a waiver of fees charged by the Office of the Lieutenant Governor (“Lt. Governor”) to cover the cost of providing Mr. Maxfield the “Statewide Voters Registration List” he requested.

FACTS

On or about January 4, 2010, Mr. Maxfield submitted a request to the Lt. Governor’s Office for the Statewide Voter Registration List. Within this request, Mr. Maxfield also requested a waiver of the $1,050.00 fee assessed by the Lt. Governor’s Office for the records. The records were provided. However, the request for the “fee waiver” was denied. Mr. Maxfield then appealed the “fee waiver” denial to Paul Neuenschwander, the agency head for the Lt. Governor’s Office. Mr. Neuenschwander upheld the agencies decision to deny Mr. Maxfield the fee waiver he requested.

Mr. Maxfield now appeals to the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on March 18, 2010, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code Ann. § 63G-2-203(1). This fee shall be approved by the governmental entity’s executive officer. Id.

2. Fees shall be established as provided in Utah Code Ann. § 63G-2-203(3), and a governmental entity with fees established by the Legislature “(i) shall establish the fees defined in [Utah Code Ann. § 63G-2-203(2)], or other actual costs associated with this section through the budget process; and (ii) may use the procedures of [Utah Code Ann. § 63J-1-504] to set fees until the Legislature establishes fees through the budget process.” Utah Code Ann. § 63G-2-203(3).

3. In the case of fees for a record that is the result of computer output other than word processing, the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information for a particular user may be charged. Utah Code Ann. § 63G-2-203(2)(a)(iii).

4. A governmental entity may fulfill a record request without charge, and is encouraged to do so when it determines that: (1) releasing the record primarily benefits the public rather than a person; (2) the individual requesting the record is the subject of the record; or (3) the person’s legal rights are implicated. Utah Code Ann. § 63G-2-203(4).

5. Notwithstanding Utah Code Ann. § 63G-2-203(3)(c), fees for voter registration records shall be set as provided in Utah Code Ann. § 63G-2-203(10) and the Lt. Governor shall: (1) After consultation with county clerks, establish uniform fees for voter registration and voter history records that meet the requirements of this section; and (2) Obtain legislative approval of those fees by following the procedures and requirements of Utah Code Ann. § 63J-1-504. See, Utah Code Ann. § 63G-2-203(10).

6. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code Ann. § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code Ann. § 63G-2-205. See, Utah Code Ann. § 63G-2-203(6). The adjudicative body hearing the appeal “has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied,” Utah Code Ann. § 63G-2-203(6)(b).

7. At the hearing, the Lt. Governor’s Office argued that in the present case there has not been an “unreasonable denial” of a fee waiver. Fees for voter registration records were set in 2001 by the Lt. Governors’ Office, after consultation with county clerks as required by Utah Code Ann. § 63G-2-203. Once established, these fees were specifically approved and adopted by the Utah State legislature.

8. The Lt. Governor’s Office further argued that the language of Utah Code Ann. § 63G-2 -203(1) and (2) and the use of the word “may” denotes the Legislature’s intent that governmental entities have discretionary authority as to whether or not records should be provided without charge. Mark Thomas from the Lt. Governor’s Office, testified that it is not the policy of the office to waive the fee for voter registration records and that since 2007, the office had only waived the $1,050.00 fee twice, based upon sound policy decisions not to charge another governmental agency for voter registration records to be used for valid, and official governmental purposes.

9. At the hearing, Mr. Maxfield argued that the $1,050.00 fee charged by the Lt. Governor’s Office was excessive and far exceeded the actual cost and value of the records he requested pursuant to Utah Code Ann. § 63G-2-203(2). Mr. Maxfield testified that the actual cost of the information sought was approximately $11.00. He based this cost on the approximate value of one recordable compact disc and approximately twenty minutes of staff time to format a computer request.

10. Mr. Maxfield further argued that regardless of the actual cost or value of the records he requested, he should be granted a “fee waiver” pursuant to Utah Code Ann. § 63G-2-203(4). He testified that the purpose of the records he requested was to vet signatures being collected for a referendum. Mr. Maxfield expressed concerns about legal consequences for individuals who may sign the referendum who are not qualified. He further testified that an unqualified person who signed the referendum may be subject to civil penalties and criminal prosecution and because of this risk, it was vital to vet all signatures. Therefore, he claimed that the purpose of his request benefited the public and not an individual.

11. The Committee having reviewed the submissions of the party’s and having heard argument at the hearing of this matter, finds that based upon the circumstances of the present case, the Office of the Lieutenant Governor’s denial of Mr. Maxfield’s request for a fee waiver was “reasonable.” The Committee is further convinced the Lt. Governor’s Office has met its burden in compliance with Utah Code Ann. § 63G-2-203(10) in setting the $1,050.00 fee for a statewide voter registration list. Inasmuch, as the Committee recognizes the Lt. Governor’s Office right to establish the fee in this matter, Mr. Maxfield’s petition must be denied.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Steve Maxfield is denied.

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 Utah Code Ann. § 63G-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.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the governmental entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental entity 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.

Dated this 29th day of March 2010.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee