State Records Committee Appeal Decision 2018-10

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BEN EMPEY on behalf of INDEPENDENT JOURNALIST, Petitioner, v.

UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF WASTE MANAGEMENT AND RADIATION CONTROL, Respondent.

DECISION AND ORDER

Case No. 18-10

By this appeal, Petitioner, Ben Empey, Independent Journalist, seeks access to records held by Respondent, Utah Department of Environmental Quality, Division of Waste Management and Radiation Control.

FACTS

On or about December 12, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested detailed records relating to landfill information in the State of Utah.

On December 19, 2017, an Assistant Utah Attorney General representing Respondent made a telephone call to Petitioner seeking more specificity in order to provide a response. In a follow up email, dated December 19, 2017, counsel for Respondent noted that Petitioner’s request was not specific, but offered to provide Petitioner with access to certain records for inspection free of charge. Counsel also indicated that other information could be made available through a detailed review conducted by the Department of Technology Services (“DTS”) at a cost.

Petitioner filed an appeal with Respondent and on December 22, 2017, Respondent denied Petitioner’s request for a fee waiver for the costs that Respondent would incur to perform a search of the requested records. Petitioner thereafter 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 February 8, 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. Respondent argued that Petitioner’s request for records is very broad because it is for an “exhaustive search of all Utah Department of Environmental Quality employee e-mails from 2010 to the present time.” For such a search of employee e-mails, Respondent would be required to pay DTS for “a significant amount of time from the DTS, technical services department that manages [Respondent’s] records.” Respondent argued that DEQ position denying Petitioner’s request for a fee waiver “is particularly strong because [Respondent] did provide 299 pages of e-mails and attachments, free of charge, from…two staff members who were working on the Promontory Landfill matter.” Respondent further argued, “Petitioner has provided no rationale or basis as to why this level of production, free of charge, is not adequate to meet his needs.”

5. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Respondent did not unreasonably deny the request for the fee waiver pursuant to Utah Code § 63G-2-203(6).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ben Empey, 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 20th day of February 2018.

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee