State Records Committee Appeal Decision 2018-40

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS and STUDENTS FOR ANIMAL WELFARE, Petitioners, v.

UNIVERSITY OF UTAH, Respondent.

DECISION AND ORDER

Case No. 18-40

By this appeal, Petitioners, People for the Ethical Treatment of Animals (“PETA”) and Students for Animal Welfare (“SAW”), seek access to records allegedly held by Respondent, the University of Utah.

FACTS

On or about June 29, 2018, Petitioners made a records request to the University of Utah ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioners requested records relating to the “University of Utah’s use of animals in experimentation.” Petitioners provided a detailed description of the specific records that were being requested.

On July 16, 2018, Renee Bay, Records Coordinator for Respondent, provided a Notice of Prepayment Required form stating that “[t]he University estimates the fees associated with your request to be at least $5,000.00… [W]e are requiring prepayment of this amount before we take further action in connection with your request.” On August 13, 2018, Petitioners appealed to the Chief Administrative Officer for Respondent, arguing that public interest justifies a fee waiver. Petitioners contended that Respondent had “already squandered significant taxpayer money and betrayed the public trust by needlessly killing animals in violation of approved animal use protocols and federal law.” Petitioners further stated that Respondent “is compounding its malfeasance by demanding exorbitant fees for records that will help the public better understand how these avoidable acts of negligence and violation of federal animal welfare laws keep occurring.” In response to the appeal in a letter dated August 20, 2018, Gregory C. Thompson upheld the denial of the fee waiver.

Petitioners filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on November 8, 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). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, 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. 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. Petitioners stated that they are non-profit organizations whose stated purposes are rejecting speciesism and opposing the use and abuse of animals in any way, as food, clothing, entertainment, or research subjects. Petitioners claim that it would be a public benefit to release the requested records and therefore, the fee waiver should be granted.

6. After reviewing the written materials provided to the Committee, and listening to the testimony provided by the parties, the Committee is not convinced that the $5,000.00 fee assessed by Respondent reflects estimated “actual costs” for providing the records to Petitioners. Instead, it appears that Respondent is relying upon prior requests and prior assessed fees to make their determination of what amount should be charged to Petitioners. The evidence also does not show that Respondent properly considered the factors outlined by the Utah Legislature in Utah Code § 63G-2-203(4)(a-c) in making its determination that Petitioners’ request for a fee waiver should be denied. This type of denial relying upon previous requests without considering the statutory factors is similar to the Deseret News case where the Utah Supreme Court found that a governmental entity cannot “deny access based solely on its advance categorical classification.” Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26, ¶19, 182 P.3d 372, 378.

7. The Committee finds that Petitioners have met their burden demonstrating that release of these records would primarily benefit the public rather than a person. Additionally, Respondent has not provided sufficient evidence or justifications for the fee being charged or for the denial of Petitioners’ request for a fee waiver. Accordingly, the Committee finds that Respondent’s denial of Petitioners’ request for a fee waiver was an unreasonable denial and instead should have been granted.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, People for the Ethical Treatment of Animals (“PETA”) and Students for Animal Welfare (“SAW”), is hereby 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 November 2018

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee