State Records Committee Appeal Decision 2010-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LAURA HANCOCK, REPORTER FOR THE DESERET NEWS, Petitioner, vs.

UTAH TRANSIT AUTHORITY, Respondent.

DECISION AND ORDER

Case No. 10-13

By this appeal, Petitioner, Laura Hancock, reporter for the Deseret News, seeks to appeal a determination by Respondent, the Utah Transit Authority (“UTA”), that fifty-cents per-page for copies of records is a “reasonable fee.”

FACTS

On or about May 15, 2010, Ms. Hancock submitted a request to UTA for salary and other compensation records for UTA employees who earn more than $100,000.00 per year in salaries and/or compensation from the previous 5 years. UTA responded on May 21, 2009, indicating that the records would be produced upon payment of $61.00 for copies and $194.58 for staff time to fulfill the request. Since making her initial request, Ms. Hancock made subsequent requests narrowing the scope and/or refining her original request and asking for a fee waiver by UTA. The fee waiver request was denied by UTA’s records officer. Ms. Hancock appealed the decision to the UTA Board of Trustees, who thereafter upheld UTA’s records officer’s fee determination.

Ms. Hancock 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 June 10, 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. 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).

3. 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).

4. 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).

5. At the hearing, UTA argued that it incurred actual costs of at least $255.00 because it spent several hours programming, compiling, formatting, and packaging Ms. Hancock’s requests. UTA further argued that its fee schedule was reasonable as to the amount charged for copying records and had been properly adopted by the governmental entity. Because of the significant cost and time associated with fulfilling Ms. Hancock’s requests, UTA determined that it was lawful to require Ms. Hancock to pay the estimated fees before beginning to process her request pursuant to Utah Code Ann. § 63G-2-203(8).

6. UTA also argued that the language of Subsections –203(1) and (2) and the use of the word “may” denotes the Utah Legislature’s intent that governmental entities have discretionary authority concerning whether records should be provided without charge. Therefore, UTA was not statutorily obligated to provide the records requested by Ms. Hancock without charge even if she met all the conditions of Utah Code Ann. § 63G-2-203(4).

7. Ms. Hancock argued that UTA’s copy charge of fifty-cents per page was unreasonable and did not reflect the “actual cost” of producing a “copy” of the records she requested, and that such an excessive charge per page was an effective denial of access to the records she requested.

8. Having reviewed the submissions of the parties and having heard argument at the hearing of this matter, the Committee finds that based upon the circumstances of the present case and a preponderance of the evidence; there was not an effective denial of access to records. Utah Code Ann. § 63G-2-203.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Laura Hancock, reporter for the Deseret News, is denied pursuant to Utah Code Ann. § 63G-2-203 and 63G-2-402.

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 17th day of June 2010.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee