State Records Committee Appeal Decision 2018-41

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SIMONSEN LAW on behalf of LYNN DAVID, Petitioner, v.

WASATCH COUNTY, Respondent.

DECISION AND ORDER

Case No. 18-41

By this appeal, Petitioner, Simonsen Law, on behalf of Lynn David, seeks access to records allegedly held by Respondent, Wasatch County.

FACTS

On or about May 27, 2018, Petitioner made a records request to Wasatch County ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records relating to funds received by Wasatch County from the State of Utah Transient Room Tax including details of how the funds were spent by Wasatch County.

No response was provided to the Petitioner and the request was deemed a denial. In a letter dated July 10, 2018, Petitioner appealed the constructive denial to Michael Davis, the Wasatch County Manager. On July 16, 2018, Mr. Davis partially denied the records request and stated that records could be provided after payment for the records had been received. Mr. Davis also denied a portion of the records requested stating that Wasatch County was not required to create new records, compile, format, manipulate, package, summarize or tailor information.

Petitioner 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. 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 not an unreasonable denial of a fee waiver because the evidence did not show that releasing the records would primarily benefit the public rather than the requester.

6. The Committee also upholds Wasatch County’s decision to not provide certain records because: (1) The request for a record must be made with specificity, and Petitioner’s request is not specific enough pursuant to Utah Code § 63G-2-204(1)(b); (2) There is no requirement in a records request to have the governmental entity to summarize information contained in records pursuant to Utah Code § 63G-2-201(8)(a)(ii); and (3) Some of the information requested is available through a public publication, the Utah Public Finance Website (www.transparent.utah.gov).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Simonsen Law on behalf of Lynn David 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 20th day of November 2018

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee