State Records Committee Appeal Decision 2023-37

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

UTAH STATE TREASURER, Respondent.

DECISION AND ORDER

Case No. 23-37

This Decision and Order concerns multiple appeals. Brady Eames (“Petitioner”) appeals the Utah State Treasurer’s (“Respondent”) decision to deny several fee waiver requests with respect to multiple records requests. Because the issue being appealed from each of the Respondent’s underlying decisions is the same, the following appeals are consolidated into this Decision and Order: 2023-27; 2023-28; 2023-29; 2023-30; 2023-31; 2023-32; 2023-33; and 2023-90.

FACTS

Petitioner requested records and fee waivers from the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). In the requests for a fee waiver, Petitioner states that as a resident of Utah, Cache County, and Logan, that he is entitled to these records for free. In February 2023, Petitioner requested certain transactional reports and pro-rata shares from the Public Treasurers’ Investment Fund in connection with a number of public entities for certain months throughout 2022. The Respondent provided some records and indicated that other records were publicly available online. For the records it found and delivered, the Respondent charged Petitioner a fee of $42.50.

Later, in July 2023, Petitioner filed a similar GRAMA request seeking the same reports for different months in 2022 in connection with many of the same public entities [1]. The Respondent denied the request on the basis that the $42.50 for the prior records request was never paid. Petitioner appealed the denial to the Respondent’s chief administrative officer (“CAO”) who upheld the decision.

Petitioner has now filed an appeal with the State Records Committee (“Committee”). On August 17, 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

We must determine whether the fee waiver denial was reasonable.

STATEMENT OF REASONS FOR DECISION

A. The Respondent’s Fee was Legally Proper

Under the GRAMA, “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, 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)(a). In an effort to fill a records request, if a governmental entity must compile, format, manipulate, or tailor the records from the form they are normally maintained in, then the entity may charge a reasonable fee for doing so. Utah Code § 63G-2-203(2)(a)(i).

Petitioner argues that he should not be charged a fee because (1) he is constitutionally permitted a right to the records without a fee; and (2) that the records supplied to him for his February request were not responsive; therefore, no fee should be assessed and be held over him for his July (and future) requests. We disagree on both counts.

Yes, the GRAMA has a “strong presumption in favor of public disclosure.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶55. Indeed, the legislative intent in enacting the GRAMA is to recognize the public’s “constitutional right” of “access to information concerning the conduct of the public’s business.” Utah Code § 63G-2-102(1)(a). However, the GRAMA also permits a governmental entity to charge a reasonable fee, which has been addressed by our Courts. See e.g., Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136 (holding that a reasonable fee may be charged when the governmental entity must compile the records in a form other than normally maintained or from a larger source); and Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62 (holding that the test for reviewing fee waiver denials is whether the decision was reasonable). With the Courts acknowledging the GRAMA’s fee provisions, we have no reason to doubt that a governmental entity may charge a reasonable fee so long as the statutory requirements are met.

Here, the Respondent had to search through a large database, compile the records, download them into a deliverable format, redact them, and then deliver them. Because the records had to be compiled from a large database source and then downloaded to a deliverable format, we find this satisfies the requirements of Section 203(2)(a)(i).

To Petitioner’s argument that the records he received were not responsive, we disagree. Neither party presented the records to us for review, so we are left to determine the issue on their arguments alone. Petitioner’s statements on this issue were conclusory and without substantive demonstration that the records did not satisfy his request. To the contrary, the Respondent’s record officer explained to the Committee the steps the Respondent took from the time the request was processed, through the search efforts, to the determination that the records were responsive and should be sent. We find the records officer’s explanation more convincing of the records’ adequacy than Petitioners.

Accordingly, we find that the records delivered to Petitioner in response to his February requests were responsive, and that the fee of $42.50 for the records was assessed in accordance with Section 63G-2-203(2)(2)(a).

B. The Decision to Deny the Fee Waiver Request was Reasonable Under the Circumstances

In finding that the Respondent has a legal basis for the fee, we turn now to its decision to deny the request for a fee waiver. Jordan River governs this issue, standing for the proposition that when reviewing the government’s decision to deny a fee, we are to determine whether that decision was reasonable. Jordan River at ¶52 (“We clarify that upon judicial review of a governmental entity’s fee waiver denial, the ultimate question is not whether the entity abused its discretion, but whether its decision was reasonable.”). Here, we find that the $42.50 fee was derived from the hourly wage of the lowest paid employee qualified to fill Petitioner’s request. See Utah Code § 63G-2-203(2)(b).

In addition, the responsive records had to be extracted from a larger source and was quite numerous. Accordingly, we find the Respondent’s decision to not waive the fee reasonable in light of these circumstances.

ORDER

THEREFORE, IT IS hereby ordered that Petitioner’s appeal is 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 28 day of August 2023.

BY THE STATE RECORDS COMMITTEE

______________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee

1. The entities for which Petitioner requested the reports are Logan City, Cache County, Utah League of Cities and Towns, Utah Local Governments’ Trust, Utah Associated Municipal Power Systems, and Utah State University.