State Records Committee Appeal Decision 2010-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JEFF SALT, JORDAN RIVER RESTORATION NETWORK, Petitioners, vs.

SALT LAKE CITY CORPORATION, Respondent.

DECISION AND ORDER

Case No. 10-14

By this appeal, Petitioners, Jeff Salt and the Jordan River Restoration Network (“JRRN”) seek expedited access to records regarding the proposed regional sports complex to be located adjacent to the Jordan River. Respondent, Salt Lake City Corporation (“SLC”), filed a cross-appeal to the decision of the Salt Lake Appeals Board granting a “fee waiver” to JRRN associated with its records request to SLC.

FACTS

On or about March 10, 2010, Petitioners made a records request of SLC pursuant to the Government Records Access and Management Act (“GRAMA”) for the above-referenced records. At the time Petitioners filed their GRAMA request, they also requested a “fee waiver” of the associated applicable fees. SLC denied the request for a waiver of fees by letter on March 16, 2010. SLC also notified Petitioners that since the request was extensive covering multiple years and requesting documents from various city departments, SLC would need additional time to fulfill the request.

On May 19, 2010, Petitioners appealed to the City Appeals Board (“Board”). The Board determined that JRRN was entitled to a “fee waiver,” but also determined extraordinary circumstances existed regarding the “voluminous” GRAMA request and granted SLC forty-five days to fulfill the request.

Petitioners have now filed an appeal with the State Records Committee (“Committee”) concerning the Board’s determination of extraordinary circumstances and granting of additional time to fulfill the GRAMA request. SLC cross-appeals the Board’s determination that Petitioners were entitled to a fee waiver. Having reviewed the materials submitted by the parties and having heard oral argument and testimony on June 10, 2010, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303, -304 and -305.

2. As soon as reasonably possible, but no later than ten business days after receiving a written request, or five business days after receiving a written request if the requester demonstrates that expedited response to the record request benefits the public rather than the person, the governmental entity shall respond by approving the request, denying the request or notifying the requestor that because of extraordinary circumstances the request it cannot immediately approve or deny the request. Utah Code Ann. § 63G-2-204(3)(a) and (b).

3. A request for voluminous quantity of records or a record series containing a substantial number of records constitutes “extraordinary circumstances” that allow a governmental entity to delay approval or denial by an additional period of time if the governmental entity determines that due to the extraordinary circumstances it cannot respond within the time limits provided. Utah Code Ann. § 63G-2-204(4).

4. At the hearing, SLC argued it would comply with Petitioners’ GRAMA request. However, the request was three and a half pages, single spaced, seeking 21 categories of documents with very broad language. The request also covered documents from 2002 to the date of the request. Testimony was proffered that sixty (60) past and current city officials’ files would need to be searched and multiple departments would be required to review and perform extensive research to locate the records. Mr. Salt countered that time was of the essence because of the nature of the underlying issues prompting the GRAMA request, and that receiving the records in 30 to 45 days would essentially moot the purpose of the GRAMA request.

5. At the hearing it was determined that many of the documents sought by Petitioners were currently in the possession of Rick Graham. SLC brought a portion of the documents retained by Mr. Graham to the hearing with the intent of turning over said documents to Petitioners.

6. After hearing arguments from the parties, the Committee is convinced that while the scope of Petitioners’ request is considerable, many of the records responsive to the request are already maintained by Rick Graham, and that SLC’s claims of extraordinary circumstances and specified date when the records will be available pursuant to Utah Code Ann. § 63-2-204(3), are unreasonable. SLC must disclose the records that it has located which Petitioners are entitled to inspect and complete the work and disclose the remaining records that the requesters are entitled to inspect as soon as reasonably possible. Utah Code Ann. § 63G-2-204(5).

7. Concerning SLC’s cross-appeal, 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).

8. At the hearing, SLC argued that it had discretion with regard to waiving the fee for the actual cost of fulfilling a GRAMA request based on the statutory construction of Utah Code Ann. § 63G-2-203(4) and the use of the word “may” as apposed to “shall” within the statute. SLC further argued that it had adopted a “policy” wherein the city would never waive fees. SLC further argued that the Board lacked the authority to “override” SLC’s no fee waiver policy.

9. The Committee having heard testimony and having reviewed the arguments of the parties finds: (1) Petitioner presented sufficient evidence to show that the records request primarily benefits the public rather than an individual pursuant to Utah Code Ann. § 63G-2-203(4); and (2) SLC’s cross-appeal should be denied pursuant to the statutory language found in Utah Code Ann. § 63G-2-203(6).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioners Jeff Salt and the Jordan River Restoration Network is granted. Salt Lake City is directed to: (1) Turn over the requested documents currently in its possession, and (2) Provide any remaining documents in Rick Graham’s possession responsive to Petitioners’ request by June 18, 2010, or in the alternative to provide an explanation why the remaining documents cannot be provided within thirty (30) days. Additionally, the cross-appeal of Salt Lake City 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 government 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 records committee upon production of the records; or (2) a notice of intent to appeal. If the government 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.

Entered this 17th day of June, 2010.

BY THE STATE RECORDS COMMITTEE

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SCOTT WHITTAKER, Chairperson
State Records Committee