State Records Committee Appeal Decision 2022-57

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL AMANN, Petitioner, v.

THE OFFICE OF THE UTAH ATTORNEY GENERAL, Respondent.

DECISION AND ORDER

Case No. 22-57

By this appeal, Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by the Office of the Utah Attorney General (“Respondent”).

FACTS

On April 15, 2022, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking any and all records pertaining to legal representation of the Respondent, any elected official of the Respondent, or any employee, agent, or appointee employed by the Respondent since December 24, 2013. Petitioner requested a fee waiver for the request, stating that the request was for the public benefit.

On April 29, 2022, the Respondent informed Petitioner that due to the breadth of the request, providing such records would require a fee and therefore denied the request for a fee waiver. Petitioner appealed the fee waiver denial to the Respondent’s chief administrative officer (“CAO”).

The CAO responded on May 31, 2022, stating that Petitioner’s assertions that the records were of public interest were unpersuasive and that the records request is likely intended to benefit Petitioner’s own ongoing litigation against the Respondent and would necessarily impose significant burdens on it. As a result, the CAO deemed that Respondent was within its rights to deny a fee waiver.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 15, 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

The GRAMA states that a person “has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours . . . .” Utah Code § 63G-2-201(1)(a). However, under certain conditions, a governmental entity may charge a reasonable fee to cover the entity’s actual cost of providing a record. Utah Code § 63G-2-203(1)(a). Notably, the statutory allowance to charge a fee does not mean the entity must do so. An entity may provide requested records without charge and the GRAMA encourages it to do so if: (a) releasing the records primarily benefits the public rather than a person; (b) the requester is the subject of the record; or (c) the requester’s legal rights are directly implicated by information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a)-(c).

In this case, Petitioner requested all records pertaining to legal representation of the Respondent, any elected official of the Respondent, or any employee, agent, or appointee employed by the Respondent since December 24, 2013. The Respondent examined the request and through a preliminary search for responsive records determined that the request was unduly burdensome because of its overly broad nature, and the necessity of reviewing each record to determine if any information needed to be redacted for attorney-client privilege or other protective classifications under the GRAMA. The Respondent’s records counsel, Lonny Pehrson, presented to the Committee that the requested records were not contained in a single procurement file in the office, but would be held in various divisions of the Respondent’s office. That is, since December 24, 2013, outside legal representation may have been engaged for the Respondent’s many separate and distinct divisions and units. Thus, searching to gather all responsive records would be a task in and of itself, but then reviewing each record for possible redactions adds to the effort. For this, the Respondent charged a fee.

Petitioner argued that releasing the records would benefit the public. But although Petitioner has provided no evidence as to how his custody of the records would benefit the public at large, such an argument has already been addressed and foreclosed by the Utah Supreme Court. In Salt Lake City Corp. v. Jordan River Restoration Network, the Court found that weighing the public interest against the governmental entity’s is an incorrect analysis in deciding whether requests for fee waivers must be granted. See Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62. The Court noted that while the GRAMA’s fee waiver provision does encourage a fee waiver when releasing a record primarily benefits the public, that factor is “not necessarily determinative.” Id. ¶52. Notably, Jordan River’s request was found to benefit the public, but the district court found it reasonable for Salt Lake City to still charge a fee, and the high Court upheld that holding: “Despite finding that [Jordan River Restoration Network’s] purpose was to primarily benefit the public, the [district court] concluded that the City’s decision to deny the requested fee waiver … was reasonable given the voluminous nature of the request and the effort necessary to compile the requested documents.” Id. ¶83. Essentially, the Court made clear that the benefit to the public is not where the analysis turns on fee waiver decisions, and that the only analysis relevant is whether the decision to deny the fee waiver request is reasonable under the circumstances. Id. In determining the reasonableness of that decision, the district court found the following factors made charging a fee reasonable: Jordan River’s records request required substantial efforts to compile documents; the request’s breadth required extracting many documents from disparate larger sources; the effort required many hours and interrogating many employees as to the files they possessed; the breadth of the request was “unreasonably large”; full compliance with the request would have required many more hours of employee time compiling and copying; and that the request appeared calculated to require production of every conceivable document. Id. ¶82. We find this case is analogous to the one under our review.

In our case, the request is unreasonably broad, seeking records stemming back eight years and relating to not just the Respondent’s engagement of outside counsel as an office, but also elected officials from the office, and any employee, agent, and appointee from the Respondent’s office. Given the size of the Respondent’s office and the number of personnel it employs (and has employed in the last eight years), we find that the request is similar to Jordan River and would require the Respondent to take substantial efforts to compile the documents, extract many documents from disparate sources and units within the Respondent’s office, require many hours combing through files and inquiring of employees as to the files they possessed, as well as the time needed to scrutinize each record for possible redactions. Because of Jordan River’s holding and analogous facts, we find (1) the public interest in the requested records is irrelevant to denying the request for a fee waiver, and (2) the decision to charge a fee for the records was reasonable under the circumstances.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal 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 27th day of December 2022

BY THE STATE RECORDS COMMITTEE

_________________________________________
NANCY DEAN
Acting Chair, State Records Committee