State Records Committee Appeal Decision 2018-37

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SCOTT GOLLAHER, Petitioner, v.

MORGAN COUNTY, Respondent.

DECISION AND ORDER

Case No. 18-37

By this appeal, Petitioner, Scott Gollaher seeks access to records held by Respondent, Morgan County.

FACTS

On May 31, 2018, Mr. Gollaher made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gollaher requested “any and all records and information, in any form, that refer to or implicate [Mr. Gollaher] as a subject in a record of Morgan County” from November 1, 2011 to the date of the records request. Mr. Gollaher also requested any records involving himself that were shared with or shared by Morgan County with “any governmental entity, federal sovereign entity, person, and/or third-party.” Mr. Gollaher also made a request for a fee waiver.

On June 11, 2018, the records officer for Respondent denied the request finding that Mr. Gollaher’s records request unreasonably duplicated prior requests. The records officer also stated that the estimated fee for fulfilling the request was $800.00 and denied Mr. Gollaher’s request for a fee waiver.

In a letter dated July 11, 2018, Mr. Gollaher appealed the records officer’s denial to Respondent’s Chief Administrative Officer. No response was given by the Chief Administrative Officer, and Mr. Gollaher deemed this to be a denial. Thereafter, Mr. Gollaher 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 October 11, 2018, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with “reasonable specificity.” Utah Code § 63G-2-204(1)(b).

2. In the present case, Mr. Gollaher requested “any and all records and information, in any form, that refer to or implicate” himself covering a period of approximately seven years. This request is very similar to a request made by a Petitioner for “any records” held by the University of Utah. Schwarz v. Univ. of Utah, State Records Case No. 05-04 (Feb. 15, 2005). The Committee held that a records request “should be specific enough that a records manager who is familiar with the agency’s records would understand which records are being sought.” Id.

3. After having reviewed Mr. Gollaher’s records request, the Committee finds that it was not reasonably specific to allow a records officer to understand what records are being sought. “Any and all records” in any form from a county over a seven year period is a very broad request that would be very difficult to fulfill.

4. In addition, a governmental entity is not required to fulfill a person’s records request if the request unreasonably duplicates prior records requests from that person. Utah Code §63G-2-201(8)(a)(iv). The request from Mr. Gollaher before the Committee unreasonably duplicates, in part, previous requests from the petitioner to the governmental entity. As such the governmental entity is not required to fulfill the request. It is the responsibility of Mr. Gollaher to submit a more specific, non-duplicative records request.

5. 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). GRAMA also specifies that 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).

6. Further, a governmental entity may fulfill a record request without charge and is encouraged to do so if 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 (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).

7. After having reviewed all written materials and having heard oral argument from both parties, the Committee finds that Respondent’s decision to deny Mr. Gollaher’s request for a fee waiver was not an unreasonable denial. However, the Committee notes that contrary to Respondent’s assertion, an attorney would not be “the lowest paid employee who, in the discretion of the custodian of records, has the necessary skill and training to perform the request.” See, Utah Code § 63G-2-203(2)(b).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Scott Gollaher, 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 26th day of October 2018

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee