State Records Committee Appeal Decision 2011-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, vs.

UTAH STATE TAX COMMISSION, Respondent.

DECISION AND ORDER

Case No. 11-15

By this appeal, Petitioner, Steven Onysko, appeals a denial from Respondent, the Utah State Tax Commission (“Tax Commission”), of his request for a fee waiver to receive documents requested and pursuant to the Declaration and Order 11-08 dated June 20, 2011.

FACTS

On June 9, 2011, the Utah State Records Committee (“Committee”) heard oral arguments on Mr. Onysko’s appeal of the Tax Commission’s denial of a records request pursuant to the Government Records Access and Management Act (“GRAMA”) for records pertaining to his 2007-2009 State of Utah income tax returns. The Committee issued a decision and an order on June 20, 2011, requiring the Tax Commission to “disclose the disputed records within its control to Mr. Onysko,” within 10 days. See, Decision and Order Onysko v. Utah State Tax Commission, Case No. 11-08, pg. 4. The Tax Commission submitted a Notice of Compliance to the Committee on June 30, 2011 stating that copies of the subject records would be made available to Mr. Onysko upon payment of the retrieval and printing costs of the records.

In a letter dated July 4, 2011, Mr. Onysko requested a waiver of the $131.70 fee. In a letter dated July 13, 2011, the Tax Commission denied Mr. Onysko’s request for a fee waiver due to the voluminous nature of his records request. On July 28, 2011, Mr. Onysko appealed the Tax Commission’s decision to the Tax Commission’s Executive Director. The Executive Director affirmed the Tax Commission’s denial of the fee waiver request in a letter dated August 4, 2011.

Mr. Onysko now appeals to the Committee. The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 22, 2011, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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. Utah Code Ann. § 63G-2-201(1) allows every person the “right to inspect a public record free of charge” subject to Utah Code Ann. § 63G-2-203.

3. Utah Code Ann. § 63G-2-203 provides that “a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.” The actual cost may include:
…the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person’s request; the cost of staff time for search, retrieval, and other direct administrative costs for complying with a request; and 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 particular users. [Id.]

4. Evidence was presented by the Tax Commission at the hearing that the total fee was $131.70, which included $120.00 for twelve (12) hours of staff labor at $10.00 per hour and $11.70 for printing 117 copies at 10 cents per copy.

5. Dolores Furniss, Disclosure Officer for the Tax Commission, testified that the Tax Commission’s proprietary software was able to export the requested information into a format that the Petitioner could view. Pursuant to Utah Code Ann. § 63G-2-203(5), the Tax Commission volunteered to allow Mr. Onysko to inspect the records free of charge to determine what records he needed.

6. After reviewing the arguments submitted by the parties and hearing oral arguments and testimony, the Committee is convinced that the Tax Commission’s denial of fee waiver for $11.70 with regards to the copies requested after inspecting the record was “reasonable” within the meaning of Utah Code Ann. § 63G-2-203. However, based upon the fact that the Tax Commission volunteered to allow Mr. Onysko the opportunity to inspect the records free of charge and no additional programming was required to export the records from proprietary software, the Committee finds that denying Mr. Onysko’s request for waiver of the $120.00 fee for twelve (12) hours of staff labor was unreasonable within the meaning of Utah Code Ann. § 63G-2-203.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Steven Onysko, is DENIED in part and GRANTED in part.

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 30th day of November 2011

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee