State Records Committee Appeal Decision 2018-20

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BEN EMPEY, Petitioner, v.

BOX ELDER COUNTY, Respondent.

DECISION AND ORDER

Case No. 18-20

By this appeal, Petitioner, Ben Empey seeks access to records held by Respondent, Box Elder County.

FACTS

In an e-mail dated March 20, 2018, Mr. Empey made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Empey stated that he was an “actively publishing journalist seeking records that are absolutely in the public interest.” Mr. Empey requested all documents related to the Promontory Landfill since January 1, 2013 including all written communications between specific individuals using specified key words. The request also included communications “between any Box Elder employee.” Mr. Empey noted that these “records requests are extraordinarily specific and include a multitude of keywords for ease of search.” One of the requests containing multiple key words was processed by the Respondent’s IT Department, the request resulted in 457,448 separate records falling within the search parameters provided by Mr. Empey.

On March 26, 2018, Respondent denied the records request indicating that it was too broad and more specific information needed to be provided. Mr. Empey filed an appeal with Stan Summers, Respondent’s Chief Administrative Officer. Mr. Empey also requested an expedited response by Respondent and a full fee waiver. In an e-mail dated March 29, 2018, Stephen R. Hadfield, Box Elder County Attorney, wrote that because of the more than 450K records responsive to Mr. Empey’s request, Respondent would need to estimate the cost of providing the documents to Mr. Empey prior to classifying, redacting, and providing the records. Mr. Hadfield also wrote that there would be “significant costs associated with this GRAMA request” and that “we cannot continue to process your repeated and voluminous GRAMA requests without reimbursement.”

Mr. Empey 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 June 14, 2018, 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-203 & -204. A governmental entity shall provide a person with a certified copy of a record if the person: (1) Requesting the record has a right to inspect it; (2) Identifies the record with reasonable specificity; and (3) Pays the lawful fees. Utah Code § 63G-2-201(7).

2. 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).

3. Counsel for Respondent argued that a records request that yields more than 450K documents, is not reasonably specific as required by Utah Code § 63G-2-201(7). The Committee agrees finding that Mr. Empey’s request terms for the search could be narrowed, allowing Respondent to provide more specific records to Mr. Empey at a lower cost.

4. GRAMA also 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).

5. 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).

6. Counsel for Respondent argued that the huge volume of records (457,448 separate e-mails) made processing such a large records request from Mr. Empey cost prohibitive to Respondent. Counsel argued that it would be far wiser to make the request for records more specific, allowing the amount of records to be provided to Mr. Empey to be decreased to a more manageable amount. However, counsel stated that Mr. Empey “has refused to provide any direction to the County on narrowing the requests or providing any reimbursement for costs.”

7. A governmental entity may require payment of future estimated fees before beginning to process a request if fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i). Without a narrowing of the search request, the Committee finds that the costs to provide the records to Mr. Empey would be cost prohibitive for Respondent even though release of the record could benefit the public. Accordingly, after reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Respondent’s denial of Mr. Empey’s request for a fee waiver was not an unreasonable denial 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. Utah Code § 63G-2-403(15)(d)(i)(B). 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 _25__ day of June 2018

BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee