State Records Committee Appeal Decision 2020-44

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

EMIGRATION IMPROVEMENT DISTRICT. Respondent.

DECISION AND ORDER

Case No. 20-44

By this appeal, Petitioner, Steven Onysko, seeks access to records allegedly held by Respondent, Emigration Improvement District.

FACTS

On or about March 13, 2020, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested “all records and documents relating to lead in, including but not limited to, lead contamination of, public drinking water in Emigration Improvement District.”

Respondent notified Mr. Onysko that there would be a fee assessed in order to fulfill the records request. Mr. Onysko considered this a de facto denial of his records request and filed an appeal with Respondent’s Chief Administrative Officer. On April 21, 2020, the Chief Administrative Officer invited Mr. Onysko to resubmit his appeal. On May 6, 2020, Mr. Onysko resubmitted his appeal, but the appeal was not answered the second time.

On June 19, 2020, Mr. Onysko filed an appeal with the State Records Committee (“Committee”). On September 10, 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. GRAMA specifies every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1).

2. A governmental entity shall as soon as reasonably possible, but no later than 10 business days after receiving a written request: (1) Approve the request and provide a copy of the record; (2) Deny the request in accordance with Utah Code § 63G-2-205; (3) Notify the requester that it does not maintain the record and then provide information concerning the governmental entity that does maintain the record; or (4) Notify the requester that one of the “extraordinary circumstances” listed in Utah Code § 63G-2-204(6) exist. Utah Code § 63G-2-204(4)(b).

3. “Extraordinary circumstances” may exist allowing a governmental entity to delay approval or denial by a period of additional time if the request is for a voluminous quantity of records or a record series containing a substantial number of records. Utah Code § 63G-2-204(6)(c).

4. Respondent argued that the language of Mr. Onysko’s records request was so broad that it “would encompass any letters, emails, meeting minutes, bond documents, website pages, etc. from the time [Respondent] was formed to the present that have any mention of lead.” Respondent added that it is a small local district that does not have a system that allows a computerized search of “lead” which would require Respondent to review every document it has, many of which only exist in paper form.

5. After considering the arguments of the parties, the Committee finds that extraordinary circumstances exist allowing for additional time for Respondent to approve or deny Mr. Onysko’s records request. Since the records have not been gathered and classified by Respondent, the Committee does not have the ability to determine whether the requested records are considered public or non-public records.
6. Concerning the amount of fees Respondent can charge Mr. Onysko, a governmental entity may charge a reasonable fee to cover its actual cost of providing the records to a requester pursuant to Utah Code § 63G-2-203(1). Actual costs may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person’s needs when the governmental entity compiles a record in a form other than that normally maintained by the governmental entity, however, the petitioner specifically requested records in a form normally maintained by the respondent. Utah Code § 63G-2-203(2)(a)(i). Actual costs may also include an hourly charge that does 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).

7. A governmental entity may not charge for: (1) The first quarter hour of staff time pursuant to Utah Code § 63G-2-203(2)(c); or (2) Reviewing a record to determine whether it is subject to disclosure or for inspecting a record pursuant to Utah Code § 63G-2-203(5). Additionally, a governmental entity may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of a person to inspect and receive a copy of a record under GRAMA. Utah Code §63G-2-201(13).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko 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 21 day of September 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee