State Records Committee Appeal Decision 2011-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RAY WHEELER, Petitioner, vs.

SALT LAKE CITY, Respondent.

DECISION AND ORDER

Case No. 11-09

By this appeal, Petitioner, Ray Wheeler appeals a denial from Respondent, Salt Lake City Corporation (“SLC”), of his request for a fee waiver for records regarding the proposed regional sports complex (“Complex”) to be located adjacent to the Jordan River.

FACTS

On or about February 15, 2011, Mr. Wheeler submitted a Government Records Access and Management Act (“GRAMA”) request to SLC for the following records:
(1) Minutes of any meetings in which there were opportunities for public comment on the Complex site, scope, plan and/or budget prior to or during the 2003 bond election;
(2) Documents or records “of any such public comment on the Sports Complex sit[e], scope, site plan and /or budget prior to or during the 2003 bond election;”
(3) Any correspondence with “Real Salt Lake or its representatives, including consultants or lawyers regarding possible funding for, or use of, the Sports Complex facility by Real Salt Lake, including, but not limited to, the Sports Complex gift agreement;”
(4) Any correspondence with “Real Salt Lake or its representatives, including consultants or lawyers regarding the size, scope;”
(5) Any “city studies or other documents providing information about the potential for flooding on the 2200 North, Jordan River Sports Complex site;”
(6) Any “city studies of potential flood risks or cost on the 2200 North, Jordan River Sports Complex site;”
(7) Any “business plans, pro formas or other studies of the costs and /or benefits, including economic benefits, of the proposed Regional Sports Complex;” and
(8) Any documents or studies by the city or city consultants “of the public demand and need for additional soccer, baseball, softball, rugby, lacrosse or cricket play fields in Salt Lake City.”

On February 16th and 18th, Mr. Wheeler submitted additional GRAMA requests relating to his initial request.

Mr. Wheeler also submitted a request for a fee waiver for all costs associated with the requested records arguing that the records primarily benefit the public. In response, SLC denied his request for a fee waiver and declined to produce the requested documents without a monetary deposit stating “[t]he City … has a policy not to waive fees for GRAMA requests because of the burden on the City of responding to voluminous requests.”

Mr. Wheeler narrowed the scope of his request in a “Consolidated and Refined GRAMA Request” dated March 14, 2011. He again requested a waiver of the fees associated with his GRAMA request. However, SLC again denied the request for a fee waiver.

Mr. Wheeler now appeals to the State Records Committee (“Committee”) claiming that the denial of his request for a fee waiver was unreasonable. The Committee, having reviewed written arguments of the parties and having heard oral argument and testimony at the hearing held on June 9, 2011, 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. Every 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 business hours, subject to Utah Code Ann. §§ 63G-2-203 and 63G-2-204..

3. 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). A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code Ann. § 63G-2-203(4)(a). A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code Ann. § 63G-2-203(6)(a).

4. At the hearing, Mr. Wheeler argued that he was acting in the capacity as a journalist to inform the public. He claimed that it was in the public interest to have these records made public because of the public issues involved with the Complex.

5. Counsel for SLC argued that for the benefit of the taxpayers of SLC, it was policy of SLC to deny all requests for fee waivers regardless of their merits or the status of the requestor.

6. A review of GRAMA shows that the Utah Legislature specifically allowed a “person who believes that there has been an unreasonable denial of a fee waiver” to appeal the denial to the Committee or a District Court. Utah Code Ann. § 63G-2-203(6)(a). The adjudicative body hearing the appeal is given “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). Utah Code Ann. § 63G-2-203(4) lists circumstances where a governmental entity is “encouraged” to fulfill a record request without charge. Accordingly, it is readily apparent from these statutes that the Utah Legislature intended to have some records requests fulfilled without a fee and then also allow a requestor to have a denial of the fee waiver reviewed by another governmental entity to determine if that decision was “unreasonable.”

7. However, a blanket policy by a governmental entity denying all fee waiver requests disallows any consideration of the circumstances listed in Utah Code Ann. § 63G-2-203(4). This leaves a requestor with no real issue to appeal other than to challenge the unreasonable nature of the governmental entities’ policy denying all fee waivers.

8. Accordingly, after considering all evidence submitted, the Committee finds that the policy of Salt Lake City Corporation to deny all requests for GRAMA request fee waivers is contrary to statute and against public policy. Therefore, the decision to deny Mr. Walker’s request for a fee waiver based upon this policy was “an unreasonable denial” and should be reversed.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ray Wheeler for a fee waiver is granted.

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 20th day of June, 2011.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee