State Records Committee Appeal Decision 2023-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

IAN COOPERSTEIN, Petitioner, v.

THE UNIVERSITY OF UTAH, Respondent.

DECISION AND ORDER

Case No. 23-13

By this appeal, Ian Cooperstein (“Petitioner”), requests records allegedly held by the University of Utah (“Respondent”) and challenges the propriety of the fee charged to fulfill the request.

FACTS

On November 16, 2020, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the “job posting materials” for a job posting that Petitioner claims was labeled “Personal Training Supervisor” and was posted from August 2015 until July 2019. In his request, Petitioner informed the Respondent that at some point, the position title changed to “Personal Training Lead” and asked that the Respondent search its records for those materials if needed. This job posting was for a position that Petitioner applied for when he was employed by the Respondent in a different position. Petitioner was awarded the new role before his employment was later terminated.

On November 8, 2022, the Respondent replied to Petitioner’s GRAMA request, informing him that it had performed a thorough search of its files from August 2015 through July 2019 and was unable to locate any responsive records for a position title of “Personal Training Supervisor,” “Personal Training Lead,” or any other similar title. Additionally, the Respondent charged Petitioner a fee of $48.85 for its search efforts and processing his request.

On November 18, 2022, Petitioner appealed this response to the Respondent’s chief administrative officer, Todd Samuelson. Mr. Samuelson responded approximately two weeks later affirming the Respondent’s decision. His response stated that “the University has thoroughly searched records both at Human Resources and Campus Recreation services. There are no records of a job posting for a position with these titles or any similar titles during the relevant time period.” In regard to the fee the Respondent charged Petitioner for processing his request and searching for records, Mr. Samuelson stated, “In response to your request regarding appeal of the fees ($48.85) for request fulfillment, we find the University has applied §63G-2-203(2)(ii) appropriately. The University of Utah is authorized to charge a reasonable fee to cover the actual costs associated with a records request, including such costs as staff time.”

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On March 16, 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.

ISSUES FOR REVIEW

1. Whether the Respondent conducted a reasonable search for the requested records.

2. Whether the Respondent’s decision to deny a fee waiver was reasonable under the circumstances.

STATEMENT OF REASONS FOR DECISION

1. The Respondent Conducted a Reasonable Search for the Requested Records

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). While the GRAMA requires that an individual identify the records he seeks with “reasonable specificity,” it does not set a clear standard for the governmental entity on how to conduct its search. Utah Code § 63G-2-201(7)(b). When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance. See e.g., Deseret news Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations).

Under the FOIA, when a governmental entity receives a records request, its search must be reasonable with the reviewing court looking at the entity’s process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The issue we must review is not whether remaining records may exist, but whether the entity’s search efforts were adequate. Weisberg, at 1351. If the search is challenged by the records requester, the governmental entity then bears the burden of showing that the search was reasonable. See Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir.1990). And “reasonableness” is dependent on the circumstances in the case. Weisberg, at 1351. If it’s determined that the governmental entity performed a reasonably adequate search, our Utah Administrative Rules then require the requester to provide sufficient evidence that additional records exist and are in the entity’s possession. Utah Administrative Rule R35-2(2).

For Petitioner’s request, the Respondent’s associate human resources (“HR”) director worked with colleagues to identify all benefitted and non-benefitted job postings listed by Campus Recreation Services within the applicable time period. The director and her colleagues were unable to find any job postings entitled “Personal Training Supervisor,” Personal Training Lead,” or any other similar title. The director also worked with HR to understand Petitioner’s employment history. In doing so, she found that the job code Petitioner was originally hired into never changed. This led the Respondent to conclude that the new position Petitioner applied for and received did not require a separate job posting. The Respondent ultimately determined that no responsive records existed.

Based on the testimony and materials presented to the Committee, we are satisfied that the Respondent’s search efforts were reasonable. As a result, the burden shifts to Petitioner to show that responsive records do in fact exist. To meet his burden, Petitioner relies on the Respondent’s own internal policies regarding job postings to show that if the job announcement was never posted, the Respondent may have violated its own policies. However, despite its policies for publishing job announcements, there could be any number of reasons why the Respondent doesn’t possess any responsive records. Petitioner’s mere reliance on policies to prove the existence of records is not strong enough to convince us that the Respondent possesses the records. Therefore, because Petitioner has offered no direct evidence to show that the Respondent has the requested records in its possession, we find that the Respondent conducted a reasonable search and satisfied its duty under the GRAMA.

2. The Respondent’s Fee Waiver Denial was Unreasonable

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). The GRAMA provides that “actual costs” may, among other things, include the cost of staff time for search, retrieval, and other administrative costs. Utah Code § 63G-2-203(2)(a)(i)-(ii).

The Respondent argues that Subsections 203(1)-(2) allow it to charge a fee to Petitioner despite the fact that it could produce no responsive records. It bases its argument on Subsection 203(2)(a)(ii) which states that staff time in searching and retrieving the records, as well as other direct administrative costs incurred for complying with a request constitute actual costs which may be reasonably passed on. Utah Code § 63G-2-203(2)(a)(ii) However, the Respondent misinterprets the statute.
Subsections 203(1)-(2)(a) don’t grant an unchecked permission to charge a fee to a requester merely because there was staff time spent on a search. Subsection 203(1) is unambiguous in stating that “a government entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.” Utah Code § 63G-2-203(1)(a) (emphasis added). In turn, Subsection 203(a) states that a governmental entity can charge for the actual costs of providing the record only when the entity “compiles a record in a form other than that normally maintained by the governmental entity . . .” Utah Code § 63G-2-203(2)(a) (emphasis added.) Read together, the statutes are quite clear: a governmental entity may charge a reasonable fee to cover the actual costs the entity incurs only when it compiles the records in a form it normally doesn’t and then provides the compiled records to the requester.

Here, not only did the Respondent not provide records to Petitioner, but it also didn’t compile the records in a form outside of the Respondent’s regular record keeping maintenance. Even if the Respondent was able to provide records, it would carry the burden of showing how and why such routine job announcement records had to be compiled in a format foreign to its routine record keeping procedures in order to fulfill Petitioner’s request. Therefore, because the Respondent did not compile and provide the requested records in an irregular format, its decision to charge Petitioner a fee for its staff’s time and then deny Petitioner’s request for a fee waiver was unreasonable.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED in part and GRANTED in part according to the following:

1. The Respondent has performed a reasonable search for responsive records and therefore satisfied its duty under the law.

2. The Respondent’s fee waiver denial is unreasonable. Respondent shall grant Petitioner’s fee waiver request.

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