State Records Committee Appeal Decision 2021-10

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 21-10

By this appeal, Petitioner, Steven Onysko, appeals the decision of Respondent, the Utah Attorney General’s Office, to deny his request for a fee waiver for records obtained from Respondent.

FACTS

On November 11, 2019, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to the Utah Attorney General’s Office (“AG’s Office”). Mr. Onysko requested records regarding legal services procured by the AG’s Office from a specified law firm regarding legal matters related to Paul G. Amann. Mr. Onysko also requested a fee waiver for the records. On May 15, 2020, Mr. Onysko made a similar request to the AG’s Office for records “since and including January 1, 2020, to the present.” Both requests were denied by the AG’s Office.

Mr. Onysko appealed both denials to the State Records Committee (“Committee”). On January 14, 2021, the Committee held a public hearing electronically, allowing the parties to present their arguments and any evidence supporting their arguments. The Committee unanimously voted to continue the resolution of the appeals to the next available Committee hearing date in order to allow the Committee the necessary time to complete an in camera review of the records. See, Onysko v. Utah Atty. Gen., State Records Committee Case No. 21-05 (Jan. 25, 2021). At an electronic hearing held on February 11, 2021, 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 that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Contracts entered into by a governmental entity, and any account, voucher, or contract that deals with the receipt or expenditure of funds by a governmental entity, are normally public records subject to restrictions under Utah Code §§ 63G-2-201(3)(b), -302, -304, or -305. Utah Code § 63G-2-301(3)(d) & (e).

3. After having reviewed the records in camera, the Committee finds that the requested records are public pursuant to Utah Code § 6G-2-301(3)(d) & (e), but are subject to redaction because the records also contain non-public information. See, Utah Code § 63G-2-308.

4. Concerning Mr. Onysko’s request for 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). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, 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).

5. GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-203(4)(a).

6. 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 shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189. 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).

7. After having considered the arguments of the parties, and hearing oral arguments and testimony, the Committee finds that AG Office’s denial of Mr. Onysko’s request for a fee waiver was not an unreasonable denial. Considering the amount of the fee, the nature of the request, and the alleged public interest in the records, the AG’s Office’s denial of the request for a fee waiver was reasonable.

ORDER

THEREFORE, IT IS ORDERED THAT the appeals of Petitioner, Steven Onysko, are hereby GRANTED in part, and DENIED in part.

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 22 day of February 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee