State Records Committee Appeal Decision 2021-44

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 21-44

By this appeal, Petitioner, Brady Eames, requests a fee waiver for records held by Respondent, the Utah Attorney General’s Office (“AG’s Office”).

FACTS

On February 26, 2021, Mr. Eames made a request for records from the Utah Prosecution Council which is administered by the AG’s Office. Mr. Eames was informed that some of the requested records were publicly available, but was also informed that an initial search of digital records dating back to 2014 produced no responsive records. However, Mr. Eames a search of hard copy records back to 2002 could produce responsive records, but given the age of the records and the large quantity of physical records, any further searches would be time consuming and costly and would require the payment of a fee deposit.

Mr. Eames filed an appeal of the decision requiring payment of a fee deposit to the chief administrative officer for the AG’s Office. In a letter dated April 6, 2021, Daniel Burton, Chief of Policy and Legislative Affairs, denied Mr. Eames’ appeal finding that providing the records “would still require a substantial amount of work to locate and identify the records, which justifies a fee deposit assessed here.”

On April 15, 2021, Mr. Eames filed an appeal with the State Records Committee (“Committee”). On August 12, 2021, the Committee held a hearing during which the parties were allowed to participate electronically. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. A person has the right to inspect a public record free of charge and 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)(a).

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). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include: (1) The cost of staff time for compiling or formatting the record into an organization or media to meet the person’s request; or (2) The cost of staff time for search, retrieval and other direct administrative costs for complying with a request. Utah Code § 63G-2-203(2)(a)(i) & (ii).

3. A governmental entity may require payment of future estimated fees before beginning to process a request if fees are expected to exceed $50. Utah Code § 63G-2-203(8)(a)(i).

4. The Government Records Access and Management Act 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). 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).

5. 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).

6. After having considered all of the evidence and arguments presented by both parties, the Committee finds that the AG’s Office’s denial of Mr. Eames’ request for a fee waiver was not an unreasonable denial. The AG’s Office properly considered the statutory factors found in Utah Code § 63G-2-203(4) finding that Mr. Eames’ records request does not primarily benefit the public. Accordingly, the Committee upholds the AG’s Office’s denial of Mr. Eames’ request for a fee waiver.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brady Eames, 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 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 23 day of August 2021

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee