State Records Committee Appeal Decision 2020-37

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SUE STEEL and RONI WILCOX, Petitioners, v.

UTAH DEPARTMENT OF CORRECTIONS. Respondent.

DECISION AND ORDER

Case No. 20-37

By this appeal, Petitioners, Sue Steel and Roni Wilcox, seek a fee waiver for access to records allegedly held by Respondent, the Utah Department of Corrections (“Corrections”).

FACTS

On January 13, 2020, Petitioners made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioners made three requests regarding a search of Corrections’ Google Vault for all e-mail sent or received by Corrections’ employees regarding Petitioners from September 1, 2019 to the present. Petitioners additionally requested a fee waiver stating that they were the subject of the requested records. In a letter dated February 10, 2020, Corrections’ GRAMA Coordinator rejected Petitioner’s request stating that it was not reasonably specific, but requested Petitioners to be more specific by naming which employee’s accounts they wanted to have searched.

On February 14, 2020, Petitioners filed an appeal with Corrections’ Deputy Director, James Hudspeth. In a letter dated February 28, 2020, Mr. Hudspeth explained that the original response by the GRAMA Coordinator was not intended to be a denial, but instead was a request for additional information. Mr. Hudspeth granted Petitioners’ appeal with the exception that Petitioners would need to specify which accounts would need to be searched. Petitioners’ request for a fee waiver was not mentioned as part of the appeal.

Thereafter, Petitioners filed an appeal with the State Records Committee (“Committee”). On August 27, 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. The single issue presented to the Committee in the present appeal is whether Petitioners were entitled to a fee waiver. 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). 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. After having considered the arguments of the parties, and hearing oral arguments and testimony, the Committee finds that Corrections’ denial of Petitioners’ request for a fee waiver was not an unreasonable denial. Some discretion is given to a governmental entity regarding decisions involving fee waivers, and Petitioners did not present sufficient evidence to show that they were entitled to receive a fee waiver from Corrections.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioners, Sue Steel and Roni Wilcox 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 8 day of September 2020.

BY THE STATE RECORDS COMMITTEE

PATRICIA SMITH-MANSFIELD
Chair, State Records Committee