State Records Committee Appeal Decision 2020-54

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF DRINKING WATER. Respondent.

DECISION AND ORDER

Case No. 20-54

By this appeal, Petitioner, Steven Onysko, seeks access to records allegedly held by Respondent, Department of Environmental Quality, Division of Drinking Water.

FACTS

On November 4, 2019, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested “viewing access to all records and documents” related to lead contamination in public drinking water from the Emigration Improvement District. Mr. Onysko requested that he view or inspect the records only, and checked the box requesting a fee waiver because “[r]eleasing the record primarily benefits the public.”

On November 14, 2019, Respondent notified Mr. Onysko that they his request was being processed, but because it was so broadly worded and not limited by a time period, it would likely require significant time to complete his request. Mr. Onysko was also notified that no decision had been made on his fee waiver request until after Respondent had an opportunity to estimate the level of work required to perform the search.

After receiving a reply to Respondent’s initial response from Mr. Onysko on November 17, 2019, Marie E. Owens, Director of Respondent provided a seven page letter dated December 6, 2019 to Mr. Onysko. Ms. Owens stated in the letter that Mr. Onysko’s request to review the records in person was denied because providing physical copies of the records would cost approximately $2,934.56. Ms. Owens further stated that Respondent “is not willing to waive the recoverable fees” because the “work is expected to require significant time and resources” and with a limited staff and financial resources, Respondent “will likely be required to rely on staff from other divisions, for which it will be required to pay outside of its normal budget.”

In a letter dated January 3, 2020, Mr. Onysko filed an appeal with Kim Shelley, Director of Operations for the Utah Department of Environmental Quality (“DEQ”). Mr. Onysko claimed that the documents that had been provided were “incomplete and inaccurate.” Mr. Onysko also claimed that Respondent’s “denial of fee waiver for additional search of [Respondent’s] records is not consistent” with GRAMA. Mr. Onysko argued that the “demand of my payment of $2,934.56…is egregiously punitive in magnitude.”

In a letter dated January 17, 2020, Ms. Shelley as Designated Chief Administrative Officer for DEQ, denied Mr. Onysko’s appeal. Ms. Shelley noted that “there has been no denial of your record request,” and that the “decision to grant or deny a request for a fee waiver is in the discretion of the agency and does not involve the balancing test that applies to the record requested itself”

Mr. Onysko filed an appeal with the State Records Committee (“Committee”) on February 27, 2020. On October 8, 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 may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). This fee shall be approved by the governmental entity’s executive officer. Id. A governmental entity may not charge a fee for: (1) Reviewing a record to determine whether it is subject to disclosure except as permitted by Utah Code § 63G-2-203(2)(a)(ii); or (2) Inspecting a record. Utah Code § 63G-2-203(5).

3. A governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a). A person who believes 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 public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a).

4. Although throughout the records request appeals process, the issue of “fee waiver” was addressed by both parties, Mr. Onysko argued before the Committee that his appeal involved denial of access to records and did not involve the issue of a fee waiver. Mr. Onysko instead claimed that Respondent’s request for payment of fees prior to Mr. Onysko having access to the records is “illegitimate.”

5. After having reviewed the written and oral arguments of the parties, the Committee finds that Mr. Onysko’s appeal should be denied. Based upon Mr. Onysko’s testimony, the issue of whether there was an unwarranted denial of a fee waiver is not before the Committee. GRAMA does not grant the Committee the authority to review the reasonableness of a fee unless fees are used as a way to effectively deny access to public records. See, Hancock v. Utah Transit Auth., State Records Committee Case No. 10-13 (June 17, 2010); Utah Code §§ 63G-2-402(1)(a)(i) & -203(6)(a). Accordingly, Respondent’s decision to require Mr. Onysko to pay a fee prior to having the requested records provided to him is upheld.

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 party’s 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 20 day of October 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee