State Records Committee Appeal Decision 2018-30

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NICK SCHOU on behalf of UTAH RIVERS COUNCIL, Petitioner, v.

KANE COUNTY WATER CONSERVANCY DISTRICT, Respondent.

DECISION AND ORDER

Case No. 18-30

By this appeal, Petitioner, Nick Schou, on behalf of the Utah Rivers Council, seeks access to records allegedly held by Respondent, the Kane County Water Conservancy District.

FACTS

On or about April 9, 2018, Petitioner made a records request to the Kane County Water Conservancy District ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested approximately 11 years’ worth of “…correspondence between [the] Executive Director, Mr. Mike Noel, alongside other staff and board members…” and other specified persons.

On or about April 12, 2018, Respondent indicated that they would be providing Petitioner with a “cost estimate” within 10 business days from April 9, 2018. Petitioner was provided an estimate of $7,659 in fees for one of the three records requests. On April 18, 2018, Petitioner submitted an appeal to the Chief Administrative Officer. On May 1, 2018, the Chief Administrative Officer, Amanda Buhler denied the appeal.

Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on August 9, 2018, and carefully considering the requested relief of the parties, the Committee 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). 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). Further, a governmental entity may not charge a fee for reviewing a record to determine if it is subject to disclosure. Utah Code §63G-2-203(5)(a).

3. 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).

4. 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).

5. Petitioner is a non-profit organization whose stated purpose is protecting Utah watersheds. Petitioner argued that the records being requested involve the Lake Powell Pipeline (“Pipeline”), which is a “controversial proposal to pump 28 billion gallons of Colorado River water across 140 miles to Kane and Washington Counties.” Petitioner noted that the Executive Director of Respondent is Michael E. Noel, who is currently a member of the Utah State House of Representatives. Petitioner claimed that completion of the Pipeline would not benefit Kane County, and that the only area in Kane County that would benefit from the Pipeline is Johnson Canyon where Representative Noel owns approximately 750 acres of real property.

6. The documents requested by Petitioner are: (1) Any and all correspondence between Rep. Noel and/or staff and board members of Respondent with the Utah Division of Water Resources from January 1, 2007 until March 19, 2018; (2) Any and all correspondence between Rep. Noel and/or staff and board members of Respondent with Blue Castle Holdings and a named individual from January 1, 2014 until March 19, 2018; (3) Any and all correspondence between Rep. Noel and/or staff and board members of Respondent with MWH Global from January 1, 2007 until March 19, 2018.

7. Petitioner presented evidence of a 38-page complaint filed with the Utah Attorney General’s Office and the U.S. Attorney’s Office requesting an investigation related to the Pipeline. Petitioner also presented evidence that Respondent did not receive two of their records requests claiming that Respondent “refused to collect its certified mail.” After receiving the records request via e-mail, the records officer estimated a cost of $7,659 in fees just to respond to one of the three records requests.

8. According to the testimony of Respondent, $6,424 of the fee was for Mr. Noel to review his personal computer, where records were “intermingled with his private documents.”

9. After having reviewed all written evidence and hearing arguments by the parties during the hearing, the Committee finds that Respondent’s denial of Petitioner’s request for a fee waiver was an unreasonable denial of a fee waiver. Because of the very public nature of the Pipeline which includes a 38-page complaint and involvement of a member of the Utah House of Representative, the Committee holds that release of information regarding the Pipeline would “primarily benefit[] the public rather than a person.” Accordingly, the Committee finds that granting of the request for a fee waiver by Petitioner allowing release of the records would be consistent with the Legislature’s recognition of the public’s constitutional “right of access to information concerning the conduct of the public’s business.” Utah Code § 63G-2-102(1)(a).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nick Schou on behalf of the Utah Rivers Counsel is GRANTED.

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 20th day of August 2018

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee