State Records Committee Appeal Decision 2016-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL CLÁRA, Petitioner, v.

SALT LAKE CITY SCHOOL DISTRICT. Respondent.

DECISION AND ORDER

Case No. 16-06

By this appeal, Petitioner, Michael Clára, seeks access to records allegedly held by Respondent, Salt Lake City School District.

FACTS

Mr. Clára is the District Two elected member of the Salt Lake City School Board for the Salt Lake City School District (“Respondent”). On August 27 & 28, 2015, Mr. Clára submitted five records requests to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Clára’s requested:

1. Records regarding repairs made to busses that were the subject of a recall between August 1, 2014, and the date of the request, and a request to reclassify documents provided in response to a prior request as public.

2. Copies of all records documents relating to the District’s relationship with Columbus Community Center, between January 1, 2014, and the date of this request.

3. Copies of all records pertaining to the District’s communications with the U.S. Department of Education’s Office for Civil Rights between January 1, 2013, and the date of this request.

4. Copies of all records relating to certain statements made by the District Superintendent in a video interview with the Salt Lake Tribune on August 25, 2015.

5. Copies of all records relating to the District’s RFP JB1541-LS for Professional Legal Services.

After going through an appeals process with Respondent, Mr. Clára filed an appeal with the State Records Committee (“Committee”). Mr. Clára appealed: (1) The denial of his fee waiver request for Requests #’s 2, 3, and 5; and (2) The classification of records responsive to Request #’s 1 and 4 as non-public. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony at a hearing held on February 11, 2016, and reviewing records responsive to Request #1 in camera, the Committee 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. 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).

2. If a person who makes a records request pursuant to Utah Code § 63G-2-203 is denied access to a record, the requester may appeal the access denial to the chief administrative officer of the governmental entity by filing a notice of appeal within 30 days after the governmental entity sends notice of the denial. Utah Code § 63G-2-401(1)(a). If the chief administrative officer of the governmental entity affirms the denial of a record request, the requester may either appeal to the Committee, or petition for judicial review in district court. Utah Code § 63G-2-402(1)(a). An appeal with the Committee must be filed with the executive secretary of the Committee “no later than 30 days after the date of issuance of the decision being appealed.” Utah Code § 63G-2-403(1)(a).

3. In the present case, Janet Roberts, Respondent’s Business Administrator, serves as Respondent’s chief administrative officer for GRAMA appeals. Ms. Roberts denied Mr. Clára’s Requests #’s 3 and 4 by letter dated October 20, 2015. Mr. Clára filed an appeal of these denials with the Committee on December 15, 2015. Since Mr. Clára failed to file an appeal with the Committee within 30 days after the date of issuance of the decision being appealed, the Committee does not have jurisdiction to review Requests #’s 3 and 4. Accordingly, Requests #’s 3 and 4 are dismissed.

4. Even though 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, 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). Actual costs may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record into an organization or media to meet the person’s request. Utah Code § 63G-2-203(2)(a)(i). A person may request a waiver of the fees associated with the actual costs incurred by the governmental entity, and the governmental entity is generally encouraged to waive these fees 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 (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).

5. Under GRAMA, the discretion for granting a fee waiver is left to the governmental entity providing the record. A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code § 63G-2-203(6)(a). 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).

6. In the present case, Mr. Clára asked for a fee waiver for Request #’s 2 and 5. Counsel for Respondent stated that the actual costs associated with the two records requests were $212.80 and $900.00 respectively. When weighing the actual costs incurred by Respondent for providing the records with the public interest in the records, the Committee finds that Respondent’s denial of Mr. Clára’s fee waiver request was not an unreasonable denial, and therefore, upholds Respondent’s decision regarding fee waivers for Request #’s 2 and 5.

7. Records that are subject to the attorney client privilege are protected if properly classified by a governmental entity. Utah Code § 63G-2-305(17). Additionally, records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected if properly classified by a governmental entity. Utah Code § 63G-2-305(18).

8. Request #1 was for records regarding repairs made to busses subjected to a safety recall between August 2014 and August 2015. Respondent classified some records responsive to Mr. Clára’s request as protected records pursuant to Utah Code § 63G-2-305(17) and (18).

9. In his appeal to Ms. Roberts dated October 13, 2015, Mr. Clára wrote that he was “appealing this denial on the basis that I am a duly elected member of the governing body of the government agency in which I am requesting the information.” He also stated that because of his position as a school board member, he was “entitled by law to inspect the record.” In a letter dated October 29, 2015, Mr. Clára asserted that he was requesting a “reclassification of the documents” as public records in order to “provide it to the public so that legislation can be crafted that would protect students riding a school bus.” In a letter dated November 16, 2015, Ms. Roberts denied Mr. Clára’s appeal holding that “two records were properly withheld because they were classified as protected records under GRAMA.”

10. The single issue before the Committee regarding Mr. Clara’s Request #1 was whether Respondent properly classified the two records as protected records pursuant to Utah Code § 63G-2-305(17) & -305(18). After reviewing the records in camera, the Committee finds that based upon the information contained within the documents, they were properly classified by Respondent as protected, and accordingly, Mr. Clára’s appeal for Request #1 is denied.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Clára, 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 23rd day of February 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee