State Records Committee Appeal Decision 2021-21

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RAPHAEL CORDRAY, Petitioner, V.

DUCHESNE COUNTY. Respondent.

DECISION AND ORDER

Case No. 21-21

By this appeal, Petitioner, Raphael Cordray, appeals the decision of Respondent , Duchesne County, to deny her request for a fee waiver for records obtained from Respondent.

FACTS

On December 2, 2020, Ms. Cordray made a records request pursuant to the Government Records Access and Management Act ("GRAMA"). Ms. Cordray requested records from Respondent's Planning and Zoning Department about the Uinta Basin Railway Project. Ms. Cordray also made a request for a fee waiver for the documents. On December 8, 2020, Ms. Cordray received a response that her request for a fee waiver has been denied and that the cost of her request would be $61.30.

In a letter dated December 10, 2020, Ms. Cordray filed an appeal with the chief administrative officer for Respondent. Ms. Cordray argued that the records primarily benefit the general public because they were "crucial to the public's ability to understand the impact" of the Uinta Basin Railway Project. Respondent denied Ms. Cordray's appeal.

In December 2020, Ms. Cordray filed an appeal with the State Records Committee ("Committee"). Before her appeal before the Committee was heard, Ms. Cordray paid the $61.30 fee and received the requested records. On April 8, 2021, 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. A governmental entity may charge a reasonable fee to cover the governmental entity's actual cost of providing a record. Utah Code§ 630-2-203(1). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include the cost of staff time searchin g, 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).

2. ORAMA 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).

3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 630-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 630-2-205. Utah Code § 630-2-203(6)(a). The adjudicative body shall consider the reasonableness of the governrnental entity's denial of the fee waiver and any determinations made under Utah Code § 630-2-203(4). See, Utah Code § 630-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ,r,r 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§ 630-2-203(6)(b)(ii).

4. In the present case, the Committee finds that Respondent was reasonable when it denied Ms. Cordray's fee waiver request. While there is a public interest in the requested records, Ms. Cordray has not met her burden to show that Respondent's denial was an unreasonable denial. "[T]he ultimate question is not whether the entity abused its discretion, but whether its decision was reasonable." Jordan River Restoration Network, 2018 UT 62, ,r 52; 435 P.3d at 188.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Raphael Cordray 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 § 630-2-404. Utah Code§ 630-2-403(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 § 630 -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 § 630 -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 § 630-2-404(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 § 630 -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§ 630-2-403(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 19th day of April 2021

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee