State Records Committee Appeal Decision 2017-50

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ALBERT CRAMER, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 17-50

By this appeal, Petitioner, Albert Cramer, seeks access to records held by Respondent, Utah Attorney General’s Office.

FACTS

On or about June 23, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested “(1) The documents created to report my concerns to Sean Reyes…; (2) Mail log for this letter; (3) Sean Reyes response or instructions to his attorney about my concerns; (4) Any other records created as a result of my concerns about AG Attorneys.” Petitioner further requested a fee waiver stating that (1) the request benefitted the public, (2) he was the subject of the record and (3) he was impecunious.

Respondent provided 465 pages of public records while withholding 56 pages of responsive records stating that they were protected under Utah Code §§ 63G-2-305(17) attorney client privilege, -305(18) attorney work product, and -305(22) draft communications. Respondent also denied Petitioner’s request for a fee waiver and assessed a fee of $100.00 for fulfilling his request. On September 5, 2017, Petitioner submitted an appeal of the decision withholding the 56 pages and his request for a fee waiver. On September 20, 2017, Chief Civil Deputy Bridget K. Romano, acting as Chief Administrative Officer for Respondent, denied Petitioner’s appeal.

Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the records, in camera, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony at a hearing held on December 14, 2017, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. The following records are protected if properly classified by a governmental entity: (1) Records that are subject to the attorney client privilege; (2) Records prepared for or by an attorney of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding; and (3) Drafts, unless otherwise classified as public. Utah Code §§ 63G-2-305(17), -305(18), & -305(22).

3. After review of the 56 pages in camera, the Committee determined that Respondent properly classified the records as protected records pursuant to Utah Code §§ 63G-2-305(17), -305(18), & -305(22).

4. 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 searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).

5. 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).

6. 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. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body 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)(ii).

7. After having reviewed the written and oral arguments of the parties related to the fee waiver request, the Committee finds that Respondent’s denial of Petitioner’s request for a waiver of the $100.00 fee was not an unreasonable denial. The Committee is not convinced that releasing the records primarily benefits the public rather than Petitioner, that Petitioner’s legal rights are directly implicated by the information in the records, or that Petitioner is impecunious.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Albert Cramer, 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 26th day of December 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee