State Records Committee Appeal Decision 2014-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NATE CARLISLE, REPORTER FOR THE SALT LAKE TRIBUNE, Petitioner, vs.

BLUFFDALE CITY, Respondent.

DECISION AND ORDER

Case No. 14 - 03

By this appeal, Petitioner, Nate Carlisle, Reporter for the Salt Lake Tribune, seeks access to records from Respondent, Bluffdale City (“City”), pursuant to Utah’s Government Records Access and Management Act (“GRAMA”).

FACTS

I. Record Request of May 1, 2013

On May 1, 2013 Mr. Carlisle requested access to and copies of the following records:

• All emails to or from the “nsa.gov” domain
• Correspondence, including emails, with Harvey Davis and/or Scott Olsen
• Any information provided to the National Security Agency to encourage it to build a data center in Utah.

In his request for these records Mr. Carlisle agreed “to pay a reasonable fee to cover the actual cost of duplicating the records and/or compiling the records in a form other than that maintained by the City”, but also requested a waiver of the fee. On November 22, 2013 the City granted in part and denied in part Mr. Carlisle’s records request. At that time no mention was made by the City concerning neither the fee waiver nor the amount of any fee. On December 17, 2013 the City informed Mr. Carlisle, by email, the total fees for the May 1, 2013 record request was $717.50.

II. Record Request of December 13, 2013

On December 13, 2013 Mr. Carlisle requested access to and copies of the following records:

• A complete copy of the agreement for Bluffdale to provide water to the National Security Agency and /or the Utah Data Center.
• Records of daily water usage at the Utah Data Center from inception to date. If daily water usage is not available, please provide monthly water usage statistics.

The requested “records of daily water usage at the Utah Data Center from inception to date” are hereinafter referred to as the “Water Usage Records”.

Mr. Carlisle also requested a waiver of the fees for the December 13, 2013 record request. On December 17, 2013 the City granted in part and denied in part the December 13, 2013 record request stating that “portions of the agreement and the usage data were redacted by the City or by the United States where such information is protected by federal law or by Utah’s Government Records Access and Management Act” specifically citing Utah Code Ann. §63G-2-305(12) and (31) and Section 6 of the national Security Agency Act codified as 50 U.S.C §3605.. The fee charged by the City for the December 17, 2013 records request was $49.95.

APPEAL

On January 16, 2014 Mr. Carlisle filed an appeal with the Manager of the City arguing, in part, that while “The Tribune is not necessarily opposed to paying a modest fee, we believe the amount invoiced here is unreasonable” and “the $767.45 bill 1 was a surprise”. Mr. Carlisle did not appeal any of the denials or redactions associated with the May 1, 2013 records request, but did appeal the denial and redactions associated with the December 13, 2013 records request. Mr. Carlisle argued the records are not protected pursuant to Utah Code Ann. §63G-2-305(12) since “it is not clear how the disclosure of water use records places government property or programs at risk”. Mr. Carlisle further argued that the Water Usage Records were generated by the City and not provided by the federal government to the City, therefore making Utah Code Ann. §63G-2-305(31) “inapplicable”.

Mr. Carlisle’s appeal was denied in part and granted in part, on the same day it was received, by Mark Reid, the Manager (“Manager”) of the City. The Manager granted disclosure of “the agreement for Bluffdale to provide water to the National Security Agency and/or the Utah Data Center” and indicated this agreement was available “upon payment of a reasonable fee”. The Manager affirmed the City’s prior denial of access to the Water Usage Records and stated the redactions on the Water Usage Records were warranted as “that information is protected by federal law” since “the water usage data you requested is information that relates to the function and the activities of the National Security Agency.” 2 The Manager also indicated the redactions to the water usage records were warranted pursuant to Utah Code Ann. §63G-2-305(12) “because their disclosure ‘would jeopardize the security of governmental property, governmental programs , or governmental record keeping systems from damage, theft, or other appropriation or use contrary to law or public policy’. As the NSA attorney explained, disclosing the water usage data could be used to extrapolate the electrical power usage and the computing power of the Utah Data Center.” The Manager also indicated the Water Usage Records are protected pursuant to Utah Code Ann. §63G-2-305(31), as information the United State agencies “ask the City to treat as protected records”. And finally, the Manager stated the combined fee totaling $767.45 was “reasonable for the volume of records ....requested”.

Mr. Carlisle now appeals the denial of the GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony of the parties on March 19, 2014, 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 §63G-2-201(2).

2. Records the disclosure of which would jeopardize the security of governmental property, governmental programs, or governmental recordkeeping systems from damage, theft or other appropriation or use contrary to law or public policy are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(12).

3. Records provided by the United States or by a government entity outside the state that are given to the government entity with a requirement that they be managed as protected records, if the providing entity certifies that the record would not be subject to public disclosure if retained by it, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(31)

4. The federal National Security Agency Act (NSA Act) codified as 50 U.S.C. § 3605, specifies that “nothing in this Act or any other law…shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof…”.

5. 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 § 63G-2-203(1).
6. GRAMA specifies that “A governmental entity may not charge a fee for: “reviewing a record to determine whether it is subject to disclosure, except as permitted by Subsection (2)(a)(ii).” Utah code § 63G-2-203(5)(a).

7. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 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 § 63G-2-205. See, Utah Code § 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 § 63G-2-203(6)(b).

8. Mr. Carlisle argued that the records in question, the Water Usage Records, are public and not protected, for the following reasons:

a. Utah Code § 63G-2-305(31) is inapplicable since the requested records do not belong to the National Security Administration (“NSA”) and the requested record were not given by the NSA to the City, but rather were records created and generated by the City.

b. Mr. Carlisle argued that the NSA and the City would be hard pressed to explain how water usage records would disclose information regarding any of the activities of the NSA and/or the Utah Data Center.

c. The disclosure of the Water Usage Records would not jeopardize the security of governmental property from damage or other appropriation or use contrary to law or public policy.

d. There is no precedent for denying access to water usage reports and records, but rather there is a public interest, at least in an arid state like Utah, to be made aware of the amount of water used and sold by a governmental entity, and there is no jeopardy to any public policy, including divulging information about the activities of the Utah Data Center.

Finally, with regard to the reasonableness of the fees, Mr. Carlisle indicated that, despite the prior fee waiver request he had “no problem” with paying the fee of $49.95 for the Dec. 13, 2013 record request, nor with paying the fee of $285.00 for the charges of the IT provider that was associated with the May 1, 2013 records request. However, Mr. Carlisle did object to any additional fee, which was charged for reviewing a record to determine whether it is subject to disclosure, which used the hourly rate of legal counsel (instead of a clerk or lower-paid employee with expertise in the areas for which the City expressed concern) in calculating the amount of the fee.

9. The City argued the Water Usage Records are “protected under GRAMA Utah Code §63G-2-305(12) and (31) and further not subject to disclosure pursuant to federal law (50 U.S.C. §3605) which preempts GRAMA. These arguments were made at the hearing and set forth in more detail in the City’s March 12, 2014 letter to the State Records Committee. Further, the City argues the fees are reasonable and should be paid before the release of any records.

10. After reviewing the evidence and the testimonies of the parties, the Committee finds that the water usage records are public pursuant to Utah Code §63G-2-201(2). Additionally, the Committee finds that the City may not charge for work to review the records to determine if they are subject to disclosure pursuant to Utah Code§ 63G-2-203(5)(a), but may charge the $285.00 for the cost of the IT provider who searched the City’s computers for the responsive records pertinent to the May 1, 2013 records request.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of the Petitioner, Nate Carlisle, Reporter for the Salt Lake Tribune, is GRANTED, as follows:

1. The reasonable fee to be paid to the City shall be $334.95, which is comprised of the fee of $49.95 for the December 13, 2013 records request and $285 for the May 1, 2013 records request.

2. The City shall provide Mr. Carlisle with an unredacted copy of the Water Usage Records once the fee is paid.

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.4

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 28th day of March, 2014.

BY THE STATE RECORDS COMMITTEE

_________________________________________
LEX HEMPHILL, Chairperson
State Records Committee

FOOTNOTES

1 This amount is the total of two fee charges from the City - $717.50 for the May 1st records request and $49.95 for the December 13th records request.

2 The Manager cites, as a basis of his decision, Section 6 of the National Security Agency Act, codified as 50 U.S.C. §3605, which provide “nothing in this Act or any other law.....shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or the names, titles, salaries, or number of the person employed by such agency.”