State Records Committee Appeal Decision 2020-35

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

UTAH LOCAL GOVERNMENTS’ TRUST. Respondent.

DECISION AND ORDER

Case No. 20-35

By this appeal, Petitioner, Brady Eames, seeks access to records allegedly held by Respondent, Utah Local Governments’ Trust (“ULGT”).

FACTS

On or about April 23, 2020, Mr. Eames made two requests for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requested certain accounting records (“Appeal 2020-52”) and records regarding a specific individual’s employment with ULGT over a period of 17.5 years (“Appeal 2020-60”).

In response to Appeal 2020-52, ULGT stated that only one responsive record could be found and it was provided to Mr. Eames. In response to Appeal 2020-60, ULGT notified Mr. Eames that there would be a $7,500 fee associated with providing the requested records.

Mr. Eames filed two appeals with the State Records Committee (“Committee”), which since they involve the same petitioner and respondent, have been combined into one appeal. On August 13, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a). Based upon the testimony presented, the Committee finds that all records were provided by ULGT to Mr. Eames. Accordingly, the Committee affirms the determination by ULGT that all records responsive to Mr. Eames’ request in Appeal 2020-52 have already been provided by ULGT.

2. A person has the right to inspect a public record free of charge subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). 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).

3. A governmental entity may fulfill a record request without charge and is encouraged to do so if 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 Utah Code § 63G-2-201(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).

4. A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a 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 waiver and any determination under Utah Code § 63G-2-203(4). 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 the arguments of the parties, the Committee finds that ULGT’s decision to deny Mr. Eames’ request for a fee waiver was not an unreasonable denial. Accordingly, the Committee affirms the decision of ULGT in Appeal 2020-60.

ORDER

THEREFORE, IT IS ORDERED THAT the appeals of Petitioner, Brady Eames 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 24 day of August 2020.

BY THE STATE RECORDS COMMITTEE
_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee