State Records Committee Appeal Decision 2018-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent.

DECISION AND ORDER

Case No. 18-02

By this appeal, Petitioner, Steven Onysko, seeks access to records held by Respondent, Utah Department of Environmental Quality.

FACTS

On or about August 17, 2018, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “…access to view all computer metadata pertaining to an electronic document created and disseminated from DEQ-controlled computer facilities, purportedly by [a] DEQ employee…”

After receiving the request, Respondent contacted their contracted mandated provider for technology services, the Division of Technology Services (“DTS”) to determine if and how Mr. Onysko’s request could be met. DTS provided an estimated cost to perform the work, and on or about August 23, 2017, Respondent notified Mr. Onysko that prepayment of the estimated amount would be required before proceeding with his request. On or about August 30, 2017, Mr. Onysko appealed to the Respondent’s Chief Administrative Officer, and on September 14, 2017, the Chief Administrative Officer affirmed the decision requiring prepayment of the anticipated costs.

Mr. Onysko 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 January 11, 2018, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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).

2. 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).

3. 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).

4. After having reviewed the written and oral arguments of the parties, the Committee learned that the Respondent significantly lowered the fee and finds that the Respondent’s denial of the Petitioner’s request for a fee waiver was not unreasonable. 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, 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 January 2018.

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee