State Records Committee Appeal Decision 2018-35

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CHAD BENNION, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE Respondent.

DECISION AND ORDER

Case No. 18-35

By this appeal, Petitioner, Chad Bennion, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.

FACTS

On October 7, 2016, Petitioner made a records request to the Utah Attorney General’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested:

...records indicating the balance, revenues and expenditures of the Attorney General Litigation Fund for the purpose of providing funds to pay for any costs and expenses incurred by the state attorney general in relation to actions under state or federal antitrust, criminal laws, or civil proceedings, for the 2014, 2015 and 2016, including the current balance of the fund.

In response to the request, Respondent provided Petitioner with a report regarding the Litigation Fund that was prepared in September 2017 for the EOCJ Appropriations Sub-committee entitled, Fund 2005: Attorney General Litigation Fund Report to the EOCJ Appropriations Sub-committee (Sept. 2016). Petitioner appealed this response to Respondent’s Chief Administrative Officer, asserting that the report provided did not include the specific itemized information he requested.

On December 1, 2016 the Chief Administrative Office, Parker Douglas, responded to Petitioner explaining that Respondent does not maintain spreadsheets or other reports that would include the specific itemized information Petitioner was seeking and that all public electronic data maintained by the Office was already available through the State’s transparency website.

Petitioner did not appeal this decision to the State Records Committee, but instead submitted an additional request on January 15, 2017. Respondent denied the request as a duplicative request. Petitioner appealed the denial to the Chief Administrative Officer, who upheld the determination that the new request was mostly unreasonably duplicative of an earlier request and, therefore, affirmed the denial of Petitioner’s request for records from 2014 through 2016.

Petitioner filed an appeal with the State Records Committee (“Committee”) on April 26, 2017. After hearing oral argument and testimony from all the parties on September 13, 2018, reviewing the records in camera, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Prior to holding the hearing, Petitioner made a request for a postponement of the hearing. Pursuant to Utah Admin. Code R. 35-1-2(12)(b), the Committee Chair has the discretion to grant or deny a petitioner’s request to postpone a hearing based upon: (1) The reasons given by Petitioner; (2) The timeliness of the request; (3) Whether Petitioner has previously requested and received a postponement; and (4) Any other factor determined to protect the equitable interests of the parties. The Committee Chair denied the request for a postponement based in part upon the fact that Petitioner had previously requested and had received multiple postponements. At the hearing, Petitioner requested a continuance of the hearing. After considering the reasons given by Petitioner, the fact that Petitioner’s appeal was filed in April 2017, and the objection by Respondent to having the matter continued, the Committee voted unanimously to hold the hearing as scheduled.

2. 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-2-203 and 63G-2-204. Utah Code § 63G-2-201(1).

3. 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). A governmental entity may require payment of future estimated fees before beginning to process a request if the fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i). Further, a governmental entity may have an additional period of time if the request is for a voluminous quantity of records or a record series contains a substantial number of records. Utah Code § 63G-2-204(5)(c).

4. Respondent provided a portion of the requested records to the Committee for an in camera review. Counsel for Respondent also stated that the records request would involve a voluminous quantity of records resulting in fees that would exceed $50.

5. After having reviewed some of the records in camera, and considering the oral and arguments of the parties, the Committee finds that Respondent has records that are responsive to Petitioner’s request. However, the records contain both public and non-public records and the request is a voluminous request. Accordingly, Respondent shall be allowed to estimate the fee required for producing the records and have the opportunity to classify the records as public and non-public records prior to releasing the records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Chad Bennion is GRANTED in Part and DENIED in Part.

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 _24__ day of September 2018

BY THE STATE RECORDS COMMITTEE

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HOLLY RICHARDSON, Chair Pro Tem
State Records Committee