State Records Committee Appeal Decision 2-23-14

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. 23-14

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

FACTS

On September 23, 2022, Petitioner submitted a records request to the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner sought all records concerning the Respondent’s disciplinary action taken against its employees from January 2014 through the date of the records request. Although his request applied to all of the Respondent’s employees, Petitioner named six particular employees whose disciplinary records he specifically desired.

The Respondent issued a response on October 7, 2022, stating that fulfilling the request would take between 20 to 30 hours of staff time to complete. Additionally, because of the records’ sensitive nature, an attorney or senior HR official would need to conduct the search and review the records for responsiveness. The Respondent informed Petitioner that because of the efforts required to process and fulfill the request, it would charge Petitioner a rate of $30.00 per hour to compile and deliver the records, totaling a minimum of $600.00. The Respondent requested that the fee be deposited prior to processing the request pursuant to the GRAMA.

Petitioner appealed to the Respondent’s chief administrative officer (“CAO”), stating that he has identified names of individuals whose disciplinary records he seeks and that an HR employee of the Respondent could likely find all responsive records in a much shorter time than 20 hours. However, the CAO denied the appeal because even though Petitioner provided the names of several specific employees, his request was not limited to only those he named. For this, the Respondent invited Petitioner to narrow his search for much faster processing.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision and requesting all records without incurring a fee. On March 16, 2023, 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. May Petitioner be granted a fee waiver for his request 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 this case, Petitioner has not shown that he meets any of Subsection 203(4)’s fee waiver criteria. He has not demonstrated that releasing the records would primarily benefit the public, that he is the subject of the records, nor that he is impecunious and his legal rights are directly implicated by the records. The only rationale for Petitioner’s argument that he should receive the records without a fee is his assertion that the records could be produced in much less than 20 hours. To support his claim, Petitioner states only that the head of the Respondent’s HR could find and produce the records within minutes. He provides no reasoning or explanation as to how this claim is valid.

On the other hand, assuming Petitioner did satisfy the requirements for a fee waiver, the Respondent argues that due to the sensitive nature of employment personnel files, an attorney or senior HR employee would need to review each file for disciplinary actions since there is not a single search mechanism or repository for only employees who have had sustained disciplinary actions against them. Furthermore, for files with disciplinary actions, the Respondent would need to screen the record to determine if all administrative appeals have been exhausted and the underlying charges for the discipline sustained because only those records are accessible under the GRAMA. Utah Code § 63G-2-301(3)(o). Additionally, there could be private or protected information within the responsive records that would need to be analyzed and screened for confidentiality and redacted accordingly. See id. Finally, this search and screening effort would be performed to nearly a decade’s worth of records.

Where Petitioner has not shown that he satisfies the requirements for a fee waiver under the law, indeed he has not offered anything other than an unsupported conclusive claim about a single HR employee’s ability to retrieve the records he seeks, we find that Respondent’s estimated timeframe for the search efforts and imposed fee are reasonable under the circumstances.

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