State Records Committee Appeal Decision 2018-59

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

UTAH LOCAL GOVERNMENTS TRUST, Respondent.

DECISION AND ORDER

Case No. 18-59

By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Utah Local Governments Trust.

FACTS

On August 29, 2018, Mr. Eames made a records request to Utah Local Governments Trust ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested records relating to “any and all faithful performance bonds and/or indemnification bonds and/or other bonds required by any Utah law which have been acquired and filed by any elected and public officers…” Respondent’s records officer denied the request finding that there were no documents responsive to the request.

On September 18, 2018, Mr. Eames filed an appeal with Steve Hansen, Chief Executive Officer with Respondent. Mr. Eames stated that he had been “constructively denied” access to the requested records. After failing to receive a response from Respondent, Mr. Eames filed an appeal with the State Records Committee (“Committee”) on October 18, 2018. After hearing oral argument and testimony from all the parties on December 13, 2018, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

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). Hourly charges for providing a record may not exceed the salary of the lowest paid employee who, in the discretion of the custodian of the records, has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). The governmental entity may not charge for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c). A governmental entity may require payment of past fees and future estimated fees before beginning to process a request if: (1) Fees are expected to exceed $50; or (2) The requester has not paid fees from previous requests. Utah Code § 63G-2-203(8)(a).

3. Counsel for Respondent stated that in response to Mr. Eames’ records request, either the documents have already been provided to Mr. Eames or fees need to be paid by Mr. Eames in order to have access to certain documents.

4. After having reviewed all written arguments and hearing testimony presented by the parties, the Committee is persuaded that Respondent has conducted a search and is willing to provide Mr. Eames the requested records in the preferred electronic format if Mr. Eames pays the fees associated with providing the records. Accordingly, there is no issue before the Committee because there has not been a denial of the records or a denial of providing the record in a requested format. A review of the documentation also shows that Mr. Eames has not requested a fee waiver.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames 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 22nd day of December 2018

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee