State Records Committee Appeal Decision 2023-12

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

LOGAN CITY, Respondent.

DECISION AND ORDER

Case No. 23-12

By this appeal, Brady Eames (“Petitioner”), requests a fee waiver for records he requested from Logan City (“Respondent”).

FACTS

On September 21, 2022, Petitioner submitted a records request to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested numerous records in connection to the construction of the Logan City Plaza & Event Stage. These requests included such things as the general contract awarded to the construction company, proof of liability and workers compensation insurance provided by the construction company, receipt of donated private funds for the project, documentation of the use of public funds to compensate the construction company, and several other records. Petitioner requested a fee waiver for the request, stating that “[r]eleasing the record primarily benefits the public.”

Respondent issued a response on September 26, 2022, approving the disclosure of the records requested but denying the request for a fee waiver. Respondent informed Petitioner that the total staff time to complete the request would be 3.5 hours, and the cost charged to petitioner would be $15.00 per hour for a total of $52.50.

Petitioner appealed Respondent’s decision on September 27, 2022, to Respondent’s chief administrative officer (“CAO”), arguing that Respondent is mandated by law to keep copies of the records at the office of the Recorder where they can be made available for inspection without charge during regular business hours. He also argued that because there is no published fee schedule for such records requests, the fee Respondent charged is improper. However, on September 28, 2022, Respondent’s CAO responded and denied the appeal. The CAO argued that Respondent is allowed to charge a reasonable fee under Section 63G-2-203.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On March 16, 2023, the Committee held a hearing during which the parties were allowed to participate. However, only Respondent attended the hearing. As neither party sought a continuance or default order against Petitioner, the Committee moved forward with the hearing considering all written materials, arguments, and evidence presented to the Committee. The Committee now issues the following Decision and Order.

ISSUES FOR REVIEW

1. Was Respondent’s denial of the request for a fee waiver reasonable under the circumstances?

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). In allowing an entity to charge a fee, the GRAMA provides that “actual costs” may include, among other things, the cost of staff time for search, retrieval, and other administrative costs. Utah Code § 63G-2-203(2)(a)(i)-(ii). However, the statute also encourages the governmental entity to fulfill the request without charge if it determines that releasing the records primarily benefits the public rather than the requester, the requester is the subject of the record, or the requester’s legal rights are directly implicated by the records and the requester is impecunious. Utah Code § 63G-2-203(4)(a)-(c).

When assessing fee waiver denials, our Utah Supreme Court has given clear guidance that the main question for review is whether the governmental entity’s decision to deny the fee waiver request was reasonable. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52, 435 P.3d 179. To make that determination, we must “view the decision in the context of the governing statute,” which means “assessing whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver.” Id. at ¶53 (citing Utah Code § 63G-2-203(4)). Additionally, we are to consider any other evidence we find “relevant to the reasonableness of the denial.” Id. at ¶54.

In Petitioner’s written appeal, he argues that because the records he seeks are classified as public, he should be able to view them free of charge at the city recorder’s office. However, Petitioner ignores the fact that his request was for ten records that each could contain numerous documents. In addition, Respondent states that to fulfill the request, Respondent will have to compile the requested records in a form other than that it normally maintains. That is, Respondent’s staff will have to compile, format, and tailor the documents into an “organization or media” since the documents are not all kept together in a single file within Respondent’s various city offices. Instead, the responsive documents may be held in various formats within Respondent’s different departments. For the search efforts and time to review and compile the records, Respondent charged a modest fee of $52.50 which represents 3.5 hours of staff time with the first quarter-hour waived in accordance with Utah Code § 63G-2-203(5)(b)(iii).

In Petitioner’s initial GRAMA request, he offers no support for his claim that the records benefit the public. Such a conclusive assertion without evidence or support is not self-proving. Where Petitioner had the opportunity to develop his arguments more fully before submitting his appeal to the Committee and chose not to, as well as the opportunity to attend his own hearing and present his reasoning and argument but also chose not to, the Committee rejects his claim. Further, nothing in his appeal shows that he is the subject of the record or that his rights are directly implicated by the information he seeks. Accordingly, Petitioner does not satisfy the fee waiver requirements set forth in Subsection 63G-2-203(4)(a)-(c). Consequently, we find that Respondent’s decision to deny the fee waiver request was reasonable.

ORDER

THEREFORE, because of 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 27 day of March 2023.

BY THE STATE RECORDS COMMITTEE

Kenneth Williams
Chair, State Records Committee