State Records Committee Appeal Decision 2022-12

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JENNIFER ORTEN, Petitioner, v.

SALT LAKE COUNTY, Respondent.

DECISION AND ORDER

Case No. 22-12

This appeal involves six records requests from Petitioner, Jennifer Orten. On February 17, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. The Committee was persuaded that not all issues regarding Ms. Orten’s records requests were ripe for review by the Committee, and voted unanimously to continue the hearing in order to allow the parties time to complete all procedural steps and brief all issues for proper consideration by the Committee. See, Orten v. Salt Lake Cty., State Records Committee Order No. 22-08 (Feb. 28, 2022). On March 17, 2022, the Committee held a second hearing and determined the following.

FACTS

On or about August 31, 2021, Ms. Orten made two records requests pursuant to the Government Records Access and Management Act (“GRAMA”) to Respondent, Salt Lake County (Request #’s 1 & 2). On September 15, 2021, Ms. Orten made a records request for communications received by or sent by Salt Lake County Clerk Sherrie Swensen and Mark Pemberton (Request #3). Another records request was made on October 19, 2021, (Request #4). On November 9, 2021, Ms. Orten made two more records requests for communications by Ms. Swensen using the words “voter roll(s)” or “canvas(ing)(ers)” (Request #’s 5 & 6). With the requests, Ms. Orten also requested a fee waiver for the fees incurred producing the records.

In a letter dated September 13, 2021, Respondent’s Administrative & Fiscal Manager stated that it would take an additional twelve weeks to provide the records and suggested a narrowing of the scope of the request in order to lower the costs for Request #’s 1 & 2. In a letter dated September 29, 2021, the Administrative & Fiscal Manager stated that Request #3 would require an additional two weeks and that a response from Respondent would be received by October 13, 2021. A letter dated November 1, 2021, from the Administrative & Fiscal Manager similarly stated that payment would be required prior to fulfilling Request #4. The Administrative & Fiscal Manager stated that for Request #’s 5 & 6, an upfront payment of $278.81 would be required prior to beginning work on providing the records.

Ms. Orten filed appeals with Ms. Swensen of the Administrative & Fiscal Manager’s responses to her six records requests. Ms. Swensen denied each of Ms. Orten’s requests for a fee waiver. Ms. Orten filed appeals with Megan Hillyard, Chief Administrative Officer of Appeals for Respondent, who in a letter dated December 20, 2021, found that Request #’s 1 & 2 had not been timely filed, and that Request #4 was not ripe for appeal because a department level appeal had not yet been filed. Ms. Hillyard found that Request #’s 3, 5, & 6 should be remanded back because “the record does not justify the estimated fees.” Ms. Hillyard later issued an opinion denying Ms. Orten’s request for a fee waiver on February 3, 2022.

An appeal filed by Ms. Orten was received by the Committee on December 3, 2021. Ms. Orten has sought to have the Committee review all six records requests with this appeal. Counsel for Respondent has requested dismissal of the appeal based upon a failure to have all procedural steps completed prior to the appeal being heard by the Committee. The Committee heard arguments from the parties at its February 17, 2022 hearing and then on March 17, 2022, the Committee met again and issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Each political subdivision may adopt an ordinance or a policy applicable throughout its jurisdiction relating to information practices including classification, designation, access, denials, segregation, appeals, management, retention, and amendment of records. Utah Code § 63G-2-701(2)(a). A political subdivision shall establish an appeals process for persons aggrieved by classification, designation, or access decisions. Utah Code § 63G-2-701(5)(a). A political subdivision’s appeals process shall include a process for a requester to appeal an access denial to a person designated by the political subdivision as the chief administrative officer for purposes of an appeal under Utah Code § 63G-2-401. Utah Code § 63G-2-701(5)(b). A political subdivision may establish an appeals board to decide an appeal of a decision of the chief administrative officer affirming an access denial. Utah Code § 63G-2-701(5)(c)(i).

2. Counsel for Respondent argued that the Committee does not have jurisdiction over Ms. Orten’s Request #’s 1, 2, & 4 because Ms. Hillyard’s jurisdiction was limited by Salt Lake County Policy 2040. Policy 2040 2.1.4 states that the Chief Administrative Officer for Appeals cannot assume jurisdiction over an appeal if the requestor files a notice of appeal more than 30 days after receiving an adverse decision from the agency designee. Policy 2040 2.1.5 specifies that a notice of appeal is considered filed when it is received and date stamped at Respondent’s office of the Chief Administrative Officer for Appeal, and “[n]o notices of appeal sent by facsimile, e-mail or any other electronic submissions will be accepted.” Respondent argued that Request #’s 1 & 2 were filed 49 days after the October 18, 2021, decision by Ms. Swenson. Regarding Request #4, Respondent argued that Respondent’s Chief Administrative Officer of Appeals has not yet fully reviewed that appeal filed by Ms. Swenson.

3. After having considered the evidence and the arguments made by the parties, the Committee agrees with Respondent’s claim that the Committee does not have jurisdiction to review Ms. Orten’s appeal for Request #’s 1 & 2 because the appeals were filed untimely with Respondent’s Chief Administrative Officer of Appeals. The Committee finds that Ms. Orten’s appeal for Request #4 is not ripe for review by the Committee because Respondent’s Chief Administrative Officer of Appeals has yet not fully reviewed this request prior to the Committee’s review.

4. Ms. Orten argues that for Request #’s 3, 5, & 6, she is entitled to a fee waiver of the cost of providing the records. 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).

5. 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).

6. 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). 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).

7. 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).

8. Ms. Orten argued before the Committee that a fee waiver should be granted for Request #’s 3, 5, & 6 because of the great public interest in the subject matter of the requested records. Ms. Orten stated that she is a member of the Utah Freedom Coalition which was formed to help citizens of the State of Utah become more informed and involved with the government. Ms. Orten contended that the reason for the requested records was because of the public interest in the 2020 primary and general elections. As Salt Lake County Clerk, Ms. Swensen is an elected county official who has responsibilities for Salt Lake County elections. Ms. Orten claimed that the requested records involving Ms. Swensen and Mr. Pemberton would help the general public understand the government processes of the 2020 election in Salt Lake County and help promote transparency in government. Ms. Orten also presented evidence showing the public interest from individuals other than herself in the information contained within the requested records.

9. The original estimate given by Respondent for providing records responsive to Request #’s 3, 5, & 6 was $17,661.81. Ms. Orten successfully argued before Respondent’s Chief Administrative Officer of Appeals that the estimated fee was excessive. Ms. Hillyard remanded the matter back to Ms. Swensen and who then found that the records could be produced at the cost of $1,769.33 Ms. Hillyard affirmed this amount in her February 3, 2022 decision, but still denied Ms. Orten’s request for a fee waiver.

10. After having considered all the arguments presented by both parties, the Committee finds that Ms. Orten has demonstrated that releasing the records primarily benefits the public rather than a person. Given that the Committee “has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied”, the Committee finds that given the great public interest in the 2020 primary and general elections within Salt Lake County and the issues raised by Ms. Orten in that election, that it would be for the public’s benefit to have this information released. Accordingly, the Committee finds that Respondent’s denial of Ms. Orten’s request for a fee waiver for Request #’s 3, 5, 6 was an unreasonable denial and order that her request for a fee waiver be granted.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jennifer Orten, is hereby GRANTED in part and DENIED in part as stated in this Decision and Order.

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 28 day of March 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R WILLIAMS
Chair, State Records Committee