State Records Committee Appeal 2013-19

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROGER BRYNER, Petitioner, vs.

CITY OF COTTONWOOD HEIGHTS, Respondent.

DECISION AND ORDER

Case No. 13-19

The present case originally came before the State Records Committee (“Committee”) for a hearing that was held on November 21, 2013. Petitioner, Roger Bryner, had made a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) with Respondent, the City of Cottonwood Heights (“Cottonwood Heights”), for the following records:

1. Any documents showing the policy of charging $10.00 per police report requested at the Cottonwood Heights Police window.

2. Any documents showing the policy of redacting police reports requested at the Cottonwood Heights Police window.

3. Any documents showing policy of denying access to reports if the person has not appeared in court when requested at the Cottonwood Heights Police window.

4. Any documents showing any policy of when requested at the Cottonwood Heights Police window.

5. A copy of each and every GRAMA request made to the Cottonwood Heights Police window in the last year and any information on if a fee was collected and if any redactions were made.

6. A copy of each and every GRAMA request made to the Cottonwood Heights Police window in the last year for which no redaction was made.

7. A copy of each and every GRAMA request made to the Cottonwood Heights Police window in the last year for which no fee was charged.

8. A copy of any emails or written communication between anyone in the police department and City Manager John Park regarding the status of my GRAMA request made on September 10, 2013 and the appeal made to John Park later on the same day.

9. Any internal emails or written communication sent by Gina Talbot regarding my GRAMA request of September 10, 2013.

10. Any internal emails or written communication regarding the letter sent by Attorney David W. Brown to chief Russo on March 23, 2013.

Cottonwood Heights estimated that it would cost approximately $2,142.45 to provide the requested records to Mr. Bryner. In his appeal before the Committee, Mr. Bryner has requested a fee waiver for the estimated cost for the production of the records. During the hearing, counsel for Cottonwood Heights stated that the City had not yet made a determination concerning the classification of the records. Also during the hearing, Mr. Bryner withdrew Requests #’s 4, 5, 6, & 7. Thereafter the parties jointly requested that the matter before the Committee should be continued until the next regularly scheduled hearing in order to allow Cottonwood Heights to review Mr. Bryner’s modified records request and then classify the records as public, private, controlled, or protected pursuant to GRAMA. Accordingly, an Order of Continuance was entered by the Committee and the matter was continued until the next scheduled hearing of the Committee to be held on December 12, 2013. See, Bryner v. City of Cottonwood Hts., State Records Comm. Case No. 13-15 (Dec. 3, 2013).

At the December 12, 2013 hearing, the parties were again allowed to present evidence through oral argument and testimony. The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony, and having reviewed in camera some of the disputed records, now issues the following Decision and Order.

FACTS

Mr. Bryner's original records request was made on September 11, 2013 with Cottonwood Heights. In a letter dated September 25, 2013, Linda Dunlavy, Deputy City Recorder for Cottonwood Heights, stated that the city had found at least 1,069 records covered by his records request. The expected charge for providing the records was estimated to be $2,142.45 based upon staff time reviewing and redacting the records and a copying cost of $0.25 per page. The letter further stated that Cottonwood Heights would begin to process his records request upon receipt of $2,142.45.

In a document dated September 26, 2013, Mr. Bryner appealed the decision of Cottonwood Heights to the Chief Administrative Officer of the city. Mr. Bryner argued that the fee was inappropriate and requested a description of the documents that would be provided. Cottonwood Heights denied Mr. Bryner's appeal in a letter dated October 2, 2013.
A copy of a letter from Cottonwood Heights to Mr. Bryner dated December 4, 2013 was provided to the Committee. In the letter, Cottonwood Heights stated that it provided copies for Request #'s 1, 8, & 9, and that it did not have records responsive to Request #'s 2, 3, 6, & 10. Concerning Request #7, Cottonwood Heights stated that redacted copies of the records would be provided along with a cost estimate for providing the records. Mr. Bryner's response to the letter was that he believed Cottonwood Heights had records responsive to Request #10 and that he should be allowed to inspect the records in Request #7 free of charge.

STATEMENT OF REASONS FOR DECISION

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

2. In response to a GRAMA request, a governmental entity is not required to create a record, compile, format, manipulate, package, summarize or tailor information, or provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(a)(i-iii).

3. In the present case, Cottonwood Heights represented to the Committee that it did not have records responsive to Mr. Bryner's Request #10. The Committee finds this representation credible and does not order the release of records that Cottonwood Heights apparently does not possess.

4. 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 working hours, subject to Utah Code §§ 63G-2-203 & -204.

5. A governmental entity may charge a reasonable fee to cover the governmental entity's actual cost of providing a record. Utah Code § 63G-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include: (1) 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; and (2) The cost of staff time for search, retrieval, and other direct administrative costs for complying with the request. Utah Code § 63G-2-203(2)(a)(i & ii).

6. A governmental entity may not charge a fee for reviewing a record to determine whether it is subject to disclosure except as permitted by Utah Code § 63G-2-203(2)(a)(ii), or inspecting a record. Utah Code § 63G-2-203(5).

7. Cottonwood Heights classified all records responsive to Mr. Bryner's Request #7 as public records that contain non-public information, and provided to the Committee examples of these records. The Committee reviewed these records in camera and found that the records are public records, but also contain information that would be considered private or protected information. Accordingly, Cottonwood Heights properly classified these records as public records subject to redaction. See, Utah Code § 63G-2-308. Therefore in response to Mr. Bryner's GRAMA request, Cottonwood Heights shall provide the records responsive to Request #7 after redacting all non-public information and may charge a fee for the actual cost of redaction pursuant to the fee guidelines and requirements outlined in Utah Code § 63G-2-203.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner is GRANTED IN PART and DENIED IN PART as outlined in this Decision and Order.

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 § 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 § 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 23rd day of December 2013,

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Chairperson
State Records Committee