State Records Committee Appeal Decision 2021-52

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ADAM HERBETS, Petitioner, v.

UNIVERSITY OF UTAH, Respondent.

DECISION AND ORDER

Case No. 21-52

By this appeal, Petitioner, Adam Herbets, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, the University of Utah.

FACTS

On June 15, 2021, Mr. Herbets made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Herbets requested e-mails regarding named individuals and involving specified subjects including “Fox 13” from May 15, 2021 to the present. Brian Christensen, Director of Administration for Respondent, denied the request on July 12, 2021 finding that the request was not reasonably specific. An appeal was filed and in a letter dated August 10, 2021, Todd Samuelson, Chief Administrative Officer and Appeals Officer for Respondent, affirmed Mr. Christensen’s decision.
Mr. Herbets filed an appeal with the State Records Committee (“Committee”). On October 28, 2021, the Committee held a hearing during which the parties were allowed to participate. 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 making a request for a record shall submit to the governmental entity that retains the record a written request containing a description of the record requested that identifies the record with reasonable specificity. Utah Code § 63G-2-204(1)(a)(ii).

2. In the present case, the requests for records were denied by Respondent based upon a failure of Mr. Herbets to reasonably specify the records being requested. The main issue presented to the Committee was whether each of Mr. Herbets’s records requests were considered reasonably specific.

3. The Committee finds that the request for all e-mails sent to and from “C.M.” between May 16, 2021 to the present day was reasonably specific. This request involves a single e-mail account and is within a short range of dates. After retrieving the records, Respondent shall have the opportunity to review these e-mail records to determine which records are considered public or non-public records under GRAMA in order to segregate them pursuant to Utah Code § 63G-2-308.

4. Concerning the other records requests, the Committee finds that these requests were not reasonably specific. When considering the number of e-mails and e-mail accounts Respondent would have to review, the search would be overly broad and would be considered an unreasonable interference with Respondent’s duties and responsibilities. See, Utah Code § 63G-2-201(9)(b). Accordingly, the Committee encourages the parties to work with the Utah Government Records Ombudsman to help narrow the search parameters for the requested records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, is 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 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 8 day of November 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee