State Records Committee Appeal Decision 2015-27

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROGER BRYNER, Petitioner, v.

CLEARFIELD CITY, UTAH. Respondent.

DECISION AND ORDER

Case No. 15-27

By this appeal, Petitioner, Roger Bryner, seeks access to records held by Respondent, Clearfield City, Utah.

FACTS

On July 10, 2015, Mr. Bryner sent a records request pursuant to the Government Records Access and Management Act (“GRAMA”) via an e-mail to Clearfield City, Utah (“Clearfield”). Mr. Bryner requested 15 categories of records from Clearfield including copies of radio logs, video and audio from patrol vehicle dashboard cameras, evidence logs, manuals, inventory logs, and database entries from 12:00 AM to 4:00 AM on June 3, 2015. Since many of the documents were related to Mr. Bryner’s arrest on June 3, 2015, by the Clearfield Police Department, Clearfield initially responded to his request pursuant to Utah R. Crim. P. 16.

Not satisfied with Clearfield’s response, Mr. Bryner filed an appeal to the chief administrative officer of Clearfield through a letter dated July 28, 2015. In the letter, Mr. Bryner asserted that his request was pursuant to GRAMA, and requested that Clearfield “provide all the records requested to me electronically as .pdf files, and a fee waiver for that production, without any denial whatsoever.” J.J. Allen, Acting City Manager for Clearfield, responded to Mr. Bryner’s appeal through a letter dated August 4, 2015. Mr. Allen denied Mr. Bryner’s request for a fee waiver stating that all remaining requested documents Mr. Bryner was entitled to receive would be provided to him “upon receipt of payment.” A “supplemental response” from Clearfield dated September 30, 2015, stated that Clearfield “has now fully responded to your records request” including providing records and information request relevant to his criminal case pursuant to Utah R. Crim. P. 16 and GRAMA “without charge.” However, records not related to his criminal case would only be provided to Mr. Bryner after payment of the applicable fees.

Mr. Bryner filed an appeal with the State Records Committee (“Committee”) concerning Clearfield’s denial of his fee waiver request. The Committee having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, on October 8, 2015, 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. 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 and -204. Utah Code § 63G-2-201(1). Utah Code § 63G-2-203(1) provides that a governmental entity “may charge a reasonable fee to cover the governmental entity’s cost of providing a record.” Actual costs may include the cost of staff time for “compiling, formatting, manipulating, packaging, summarizing or tailoring the record” into an organization to meet the person’s request, and the cost of staff time for search, retrieval, and other direct administrative costs for complying with the request. See, Utah Code § 63G-2-203(2)(a)(i) & (ii).

3. A governmental entity “may fulfill a record request” without charge and is encouraged to do so when it determines that: (1) The individual requesting the record is the subject of the record; or (2) 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)(b) & (c).

4. Under GRAMA, the discretion for granting a fee waiver is essentially left to the governmental entity providing the record. The standard of review for the Committee is to determine whether Clearfield’s decision denying Mr. Bryner’s request for a fee waiver was an “unreasonable denial of a fee waiver.” See, Utah Code § 63G-2-203(6)(a).

5. After reviewing the arguments of the parties, the Committee finds that Clearfield’s decision denying Mr. Bryner’s request for a fee waiver was not an unreasonable denial. The total amount of the fee was $33.75, Mr. Bryner was not the subject of the records, Mr. Bryner’s legal rights were not directly implicated by the information in the records, and Mr. Bryner failed to demonstrate that he was impecunious. Additionally, the Committee finds that Clearfield was diligent in identifying all records responsive to Mr. Bryner’s records request.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, is DENIED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). 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(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 20th day of October 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee