State Records Committee Appeal 2014-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

HARSHAD DESAI, Petitioner, v.

GARFIELD COUNTY SCHOOL DISTRICT, Respondent.

DECISION AND ORDER

Case No. 14-15

By this appeal, Petitioner, Harshad Desai, seeks a fee waiver or a reduction of fees for copies of records received from Respondent, the Garfield County School District (“District”).

FACTS

On April 18, 2014, Mr. Desai made a records request to the District pursuant to the Government Records Access and Management Act (“GRAMA”). In his request, he stated that he was authorizing “costs of up to $0.00.” The District granted the records request and the records were sent to Mr. Desai via facsimile on May 5, 2014. Included with the facsimile was a total amount due request to Mr. Desai for $54.40. The charges consisted of $1.40 for 14 copies, $28.00 for 14 pages faxed to Mr. Desai, and $25.00 for research. The District had an adopted fee schedule for $.10 cost per page copied, $2.00 cost per page faxed, and $25.00 cost per hour researched.

Thereafter Mr. Desai requested that he receive a fee waiver for the requested documents. Mr. Desai also argued that he should not have to pay for the facsimile fee because he did not ask for the records to be sent by facsimile. Mr. Desai stated that for past records requests, the District had communicated/responded to him by sending records by regular U.S. Mail, by registered mail, or personally bringing copies to his address. Mr. Desai’s request for a fee waiver was denied by the District through a letter dated June 27, 2014. Mr. Desai filed an appeal with the State Records Committee (“Committee”) pursuant to Utah Code § 63G-2-403(1). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 11, 2014, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that 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 an individual specified in Subsection 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).

2. 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. 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).

3. Mr. Desai argued during the hearing that he clearly stated in his records request that he did not authorize any costs to be charged to him for his request. He also stated that he should not be charged for the $28.00 facsimile fee of $2.00 per page because he never requested that the records be sent to him in that format.

4. Counsel for the District stated that Mr. Desai made his records request by facsimile and that she was leaving to travel out of country the day after the District responded to Mr. Desai’s records request. Since the District would be unable to contact legal counsel while she was out of the country, the decision was made to send the records to Mr. Desai via facsimile to ensure that Mr. Desai received the requested records.

5. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Mr. Desai failed to prove that he is entitled to a fee waiver pursuant to Utah Code § 63G-2-203(4). However, Mr. Desai is entitled to a fee reduction of $28.00, but should pay the District $26.40. By responding by facsimile, the District responded in a more expensive format that had not been requested by Mr. Desai. Therefore, Mr. Desai should not be required to pay for the facsimile fee of $2.00 per page.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Harshad Desai, is DENIED for the requested fee waiver, and GRANTED for the requested fee reduction.

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 22nd day of September 2014.

BY THE STATE RECORDS COMMITTEE

_____________________________
LEX HEMPHILL, Chairperson
State Records Committee