State Records Committee Appeal Decision 2017-36

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

UTAH DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, Respondent.

DECISION AND ORDER

Case No. 17-36

By this appeal, Petitioner, Steven Onysko, seeks access to records held by Respondent, Utah Department of Human Resource Management.

FACTS

On or about April 17, 2017, Petitioner made a records request pursuant to the Government Records Access and Management Act (“GRAMA”) requesting “metadata” from certain employees regarding a document purportedly authored by a specific person.

After receiving the request, Respondent conversed with the Department of Technology Services (“DTS”) regarding the request and inquired as how to get access to the requested information. DTS notified Respondent that they could provide the service of fulfilling the request, and addressed the cost associated with that service. Thereafter, Respondent notified Petitioner that, pursuant to Utah Code §63G-2-203(8)(a)(i), they would require prepayment of fees before proceeding with the request.

Petitioner then filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “a governmental entity may require payment of past fees and future estimated fees before beginning to process a request if fees are expected to exceed $50.” See Utah Code §63G-2-203(8)(a)(i).

2. When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs under this section may include 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 in the case of fees for a record that is the result of computer output other than word processing, the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information for particular users. Utah Code §63G-2-203(2)(a)(i) & (iii).

3. In the present case, Respondent argued that the fees required to process the request are assessed as a service provided by the Department of Technology Services (“DTS”) and are expected to go well beyond the $50.00.

4. The Committee finds that Respondent has not been denied access to the records, and that the lowest prepayment estimate of fees in the amount of $1128.00 is not unreasonable and, therefore, upheld pursuant to Utah Code §§ 63G-2-203(2)(a)(iii) and -203(8)(a) and (b). Respondent is not required to process Petitioner’s request prior to payment of require future estimated fees.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, 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 a parties’ 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 October 2017.

BY THE STATE RECORDS COMMITTEE

__________________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee