State Records Committee Appeal Decision 2021-37

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

GARY EATCHEL, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 21-37

By this appeal, Petitioner, Gary Eatchel, requests access to records held by Respondent, Utah Department of Corrections.

FACTS

On December 15, 2020, Mr. Eatchel submitted a Government Records Access and Management Act (GRAMA) request to Respondent, requesting a copy of “Initial Contact Report (ICR), Incident Reports, Narratives, Attachments, and Supplements for incident/case #338525.” Mr. Eatchel wrote on Respondent’s GRAMA request form that he was entitled to a fee waiver because he was the subject of the records even though the form only allowed requests for a fee waiver to be made by indigent inmates. On December 24, 2020, Respondent mailed a Notice of Rejection for Records Request to Mr. Eatchel, indicating that Respondent’s records showed that Mr. Eatchel was not indigent, and stating that Mr. Eatchel “must send a money transfer to pay for the copies (approximately 2 to 3 dollars).”

On December 31, 2020, Mr. Eatchel submitted an appeal to the Chief Administrative Officer. In his appeal, Mr. Eatchel acknowledged that he was not indigent but again argued that he should be eligible for a fee waiver because he is the subject of the requested records. In a letter dated February 24, 2021, James Hudspeth, Respondent’s Deputy Director and CAO, upheld the fee waiver denial and asked Mr. Eatchel to “resubmit your GRAMA request with a money transfer.” Mr. Hudspeth stated that “it is clear from the plain language of GRAMA that the Utah Legislature intended the person requesting the public records, not taxpayers, to bear the costs associated with the retrieval and copying of responsive records, with three limited exceptions. […] Even if a person meets at least one of those exceptions, it’s entirely up to UDC to waive the fee—or not.”

Mr. Eatchel filed an appeal with the State Records Committee (“Committee”). On July 8, 2021, the Committee held a hearing where the parties were allowed to participate in person and electronically. After carefully considering the parties’ arguments and the evidence presented, 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 § 63G-2-203(1). A governmental entity may fulfill a record request without charge and is encouraged to do so if 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 Utah Code § 63G-2-201(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).

2. 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. When determining “reasonableness,” the reviewing body assesses:

…whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver: when releasing the record primarily benefits the public, the requester is the subject of the record, or the requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. [Jordan River, 2018 UT 62, ¶ 53, 435 P.3d 179, 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).

3. In the present case, testimony was presented that Respondent failed to consider whether the requester is the subject of the record when assessing Mr. Eatchel’s request for a fee waiver. A review of Respondent’s fee waiver form shows that it only allows inmates to request a fee waiver based upon a claim of indigency. Counsel for Respondent also stated that it is Respondent’s “policy to require inmates who are not indigent to pay costs associated with their GRAMA requests.”

4. Although the Utah Legislature provides governmental entity great discretion when determining whether a request for a fee waiver should be granted by using the phrase “may fulfill a record request,” the Legislature does not provide similar discretion for governmental entities to consider the three bases for granting a fee waiver request in Utah Code § 63G-2- 203(4)(a-c). Instead, the language of the statute states that a governmental entity is “encouraged” to grant a fee waiver “if it determines that…” As noted by the Utah Supreme Court in Jordan River, the determination of whether a governmental entity reasonably denied a request for a fee waiver is based upon a review of “whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver.” Failure of a governmental entity to consider each of those circumstances can be a basis for a finding by a reviewing body that the governmental entity’s denial of a request for a fee waiver was an unreasonable denial. See, Sullivan v. Utah Dept. of Corrections, State Records Case No. 20- 17 (Apr. 20, 2020).

5. After having considered all of the evidence and testimony presented, the Committee finds that Respondent’s denial of Mr. Eatchel’s request for a fee waiver was an unreasonable denial. A governmental entity must consider all of the circumstances under which the Legislature through GRAMA encourages a fee waiver outlined in Utah Code § 63G-2-203(4)(a-c). The evidence provided showed that Respondent failed to consider Utah Code § 63G-2-203(4)(b) when making its decision to grant or deny Mr. Eatchel’s request for a fee waiver. Accordingly, Respondent’s decision denying Mr. Eatchel’s request for a fee waiver is reversed.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Gary Eatchel, is hereby GRANTED.

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 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 19 day of July 2021

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee