State Records Committee Appeal Decision 2022-37

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

AARON DAVIDSON, Petitioner, v.

ALPINE SCHOOL DISTRICT, Respondent.

DECISION AND ORDER

Case No. 22-37

By this appeal, Petitioner, Aaron Davidson, requests a fee waiver for records held by Respondent, the Alpine School District.

FACTS

On January 11, 2022, Mr. Davidson made a request for records from Respondent. Mr. Davidson was informed that there would be a cost of approximately $150.00 for the requested records. Mr. Davidson filed an appeal claiming that he had the right to freely inspect the requested records because he was the subject of the records requested. Respondent denied Mr. Davidson’s request to “freely inspect” the requested records stating that the Government Records Access and Management Act (“GRAMA”) “allows a governmental entity to charge a fee for the cost of providing a record.” Utah Code § 63G-2-203(1)

In an e-mail dated March 25, 2022, Mr. Davidson filed an appeal with the State Records Committee (“Committee”). On August 18, 2022, 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 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. 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).

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). 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. Having considered the evidence, the Committee first finds that the records requested are not capable of public inspection. Petitioner sought electronic communications of individuals within the Respondent school district.

7. The Committee also finds that the agency’s decision to deny the fee waiver was not unreasonable. The agency properly considered the Petitioner’s status as subject of the record against the needs of the agency. The Respondent offered credible evidence supporting the estimated costs assessed.

8. The Committee is also not persuaded by Petitioner’s argument that the permissive language of Utah Code § 63G-2-203(4) should be read as a mandate for the agency to provide records free of charge to a requestor who is the subject of the records. Treating “may” as “shall” would undermine the plain language of the statute and it would conflict with the language at Section 63G-2-203(1), which allows as agency or entity to charge a fee associated with the cost of compiling a record. If “may” must be replaced with “shall” throughout the applicable code provisions, an agency would be required to charge a fee and also prohibited from doing so. This would work an absurd result.

9. Finally, the Committee declines to find that the Utah Constitution requires free access to records in this case. Constitutional questions are generally outside the scope of the Committee’s review. However, it is apparent that Petitioner is relying on a constitutional provision related to criminal trial rights. The Committee takes no position on whether records would be available to the Petitioner in a criminal trial.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Aaron Davidson, 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 29 day of August 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee