State Records Committee Appeal Decision 2017-42

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DAVID LARSEN, Petitioner, v.

HEBER CITY POLICE DEPARTMENT. Respondent.

DECISION AND ORDER

Case No. 17-42

By this appeal, Petitioner, David Larsen, seeks access to records allegedly held by Respondents, Heber City Police Department.

FACTS

On or about July 31, 2017, Mr. Larsen made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Larsen requested a multi-media copy of videotaped footage from the Police Department’s lobby area. In an email sent on August 10, 2017, Mr. Larsen filed an appeal of the $30.00 fee for multimedia copying, stating that he “would respectfully appeal any Fee’s asked of Heber City” associated with providing the video footage. A letter dated August 14, 2017, from the Heber City Recorder, confirmed that Mr. Larsen’s request for video footage had been approved and he could make arrangements with a police officer to view the video footage; however, no response was sent by Respondent’s chief administrative officer to Mr. Larsen’s request for a fee waiver.

Mr. Larsen filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 9, 2017, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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 & -204. Utah Code § 63G-2-201(1). However, 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). Additionally, a governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that: (1) Releasing the record primarily benefits the public; (2) The requester is the subject of the record; or (3) The requester’s legal rights are directly implicated by the information on the record and the requester is impecunious. See Utah Code § 63G-2-203(4)(a-c).

2. In the present case, Respondent notified Mr. Larsen that there was a fee for receiving a multi-media copy of the record. Respondent noted that if Mr. Larsen did not wish to pay the fee, he had the option of reviewing the record free of charge in the presence of a police officer as noted in the August 14, 2017, letter from the Heber City Recorder. Mr. Larsen then would have the option of making his own video recording of the record with his own video recording device.

3. After hearing testimony and reviewing the parties' arguments, the Committee finds that the denial of Mr. Larsen’s request for a fee waiver was not an unreasonable denial. If Mr. Larsen does not want to pay for the fee, Mr. Larsen has the option of reviewing and video recording the record free of charge.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, David Larsen, 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 21st day of November 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee