State Records Committee Appeal Decision 2020-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v.

SEVEN COUNTY INFRASTRUCTURE COALITION, Respondent.

DECISION AND ORDER

Case No. 20-06

By this appeal, the Center for Biological Diversity, seeks access to records held by Respondent, Seven County Infrastructure Coalition.

FACTS

In a letter dated May 29, 2019, Petitioner submitted a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested communications between Respondent and the Utah Department of Transportation and/or TYR Energy containing specific phrases of the Uinta Basin Railway Project (“Project”). As part of the records request, Petitioner requested a fee waiver “because the disclosure of the requested information is in the public interest and will contribute significantly to public understanding” the Project.

In a letter dated August 26, 2019, Respondent’s Records Officer stated that the records would be provided upon payment by Petitioner of $150.00. Regarding the need for the records through the requested fee waiver, the Records Officer stated that Respondent’s records are “a matter of open and public meeting minutes” and have “never been obscured.”

Petitioner filed an appeal with the Executive Director for Respondent through a letter dated September 18, 2019. In the letter, an attorney for Petitioner stated that the fee waiver should be granted because the requested records would “allow for significant contributions to public understanding of [Respondent’s] operations and activities because [they] will shed light on [Respondent’s] decisions and priorities.” On September 25, 2019, Michael J. McKee, Executive Director for Respondent, affirmed the denial of the fee waiver request.

On October 1, 2019, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 9, 2020 and 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, the 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).

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. During the hearing, a representative for Petitioner stated that the Center for Biological Diversity is a non-profit organization headquartered in Tucson, Arizona, with a purpose of helping to protect land, water, and air allowing species to survive. The representative stated that Petitioner’s intent was to use the requested records to help educate people concerning the potential environmental impacts of the Uintah Basin Railway Project. He argued that the fee waiver should be granted because release of the information from the requested records would primarily benefit the public.

5. After reviewing both the written and oral testimony presented to the Committee, the Committee finds that Respondent’s denial of Petitioner’s request for a fee waiver for the requested records was an unreasonable denial. The Committee agrees with Petitioner’s arguments and finds that the evidence supports a finding that releasing the record would primarily benefit the public rather than a person. See, Utah Code § 63G-2-203(4)(a).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner the Center for Biological Diversity, 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 21st day of January 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee