State Records Committee Appeal Decision 2019-36

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DANIEL MCMANN, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 19-36

By this appeal, Petitioner, Daniel McMann, seeks access to records held by Respondent, Utah Department of Corrections.

FACTS

In January 2019, Respondent received Mr. McMann’s request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. McMann requested, “a police report and assault charges on [a specific person… along with [that specific person’s] plea agreement.”

On or about February 14, 2019, Respondent denied the request stating that the records were protected pursuant to Utah Code § 63G-2-305. Mr. McMann appealed the denial stating that he needed the records to present as evidence in a claim.

On or about March 22, 2019, Deputy Director James Hudspeth granted Mr. McMann’s appeal but stated that Respondent required a deposit for processing the request which would require approximately 2.5 hours of work and that there was a 25-cent per page fee. Mr. McMann requested a fee waiver, and on May 16, 2019, Deputy Director Hudspeth denied the request for a fee waiver.

Thereafter, Mr. McMann filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on October 10, 2019, carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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, a `ctual 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).

2. GRAMA 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).

3. 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).

4. Counsel for Respondent argued that Mr. McMann was not entitled to a fee waiver because: (1) The record does not primarily benefit the public; (2) Mr. McMann’s legal rights were not implicated by the information the record; and (3) Mr. McMann has not shown that he is indigent.

5. After having reviewed the written and oral arguments of the parties, the Committee finds that Respondent’s denial of Mr. McMann’s fee waiver request was not an unreasonable denial.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Daniel McMann, is hereby 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 October 2019

BY THE STATE RECORDS COMMITTEE

_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee