State Records Committee Appeal Decision 2023-38

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JONATHAN BEJARANO, Petitioner, vs

UTAH STATE TREASURER, Respondent,

DECISION AND ORDER

Case No. 23-38

By this appeal Jonathan Bejarano (“Petitioner”), requests a fee waiver for records held by, Utah State Treasurer (“Respondent”).

FACTS

On February 28, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested a “digital copy of all the e-mails sent or received by Marlo Oaks from August 1, 2022, to September 1, 2022, that contain one or more of the following keywords, ‘Blackrock.’” Additionally, Petitioner requested a fee waiver for any applicable fees.

In an email dated March 10, 2023, the Respondent informed Petitioner that “[w]e currently have records responsive to your request . . . which are included with this response. Certain personal information, as defined in Utah Code § 63g-2-303(1)(c), such as personal mailing addresses, personal email addresses, or personal phone numbers, have been redacted.” The Respondent denied the fee waiver in accordance with Utah Code § 63G-2-203(2), which allows a governmental entity to charge a reasonable fee to cover the costs associated with compiling, formatting, and packaging the records if they government must deliver the records in a format other than how they are regularly maintained. The Respondent informed Petitioner that the fee for his request was $48.00.

Petitioner appealed the decision on the fee waiver denial to the Respondent’s Chief Administrative Officer (“CAO”) on March 21, 2023, on the grounds that “there are multiple national news stories about Utah Treasurer.” However, the CAO upheld the denial of the fee waiver, pursuant to Section 63G-2-203(4)(a). The CAO explained that per Subsection 203(4)(a), “national news coverage of the office is not evidence that this request by this requester benefits the public rather than a person.”

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. 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 are asked to review the fee waiver denial and determine if the denial was warranted and, if so, whether the fee was reasonable.

STATEMENT OF REASONS FOR DECISION

1. The Fee Charged to Petitioner was Appropriate Under GRAMA

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, despite this, the law permits the governmental entity to “charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.” Utah Code § 63G-2-203(1)(a). When a governmental entity must compile a record in a form other than that normally maintained by the entity, the actual costs may include the cost of staff time for compiling, formatting, and packaging the record to meet a person’s request. Utah Code § 63G-2-203(2)(a)(i). However, the governmental entity is encouraged to fulfill a record request without charging a fee if the entity determines that releasing the record primarily benefits the public rather than a person. Utah Code § 63G-2-204(4)(a). Additionally, if the requester is a “media representative” who requests a record for a story or report for publication or broadcast to the general public, rather than for a blog, podcast, social media account, or other similar means, then the governmental entity is prevented from charging a fee for the first quarter hour of staff time spent in responding to the request. Utah Code §§ 63G-2-203(5)(a)(i)-(ii); -203(5)(c)(i).

Here, Petitioner’s request was for e-mails and was quite broad. The search for responsive emails turned up numerous results. From there, the Respondent had to compile the responsive emails and convert them into PDF files, redact protected information, package them into a deliverable format, and then deliver them to Petitioner. The emails themselves were originally maintained on the Respondent’s email server as archived emails, not PDF files. Thus, because the responsive records had to be compiled in a form other than that normally maintained by the Respondent, we find that it was within its rights to assess a reasonable fee for the time its staff had to take to compile, format, and package the records.

Petitioner argues that because the records may be used in a media report, the fee should be waived. Fee waivers may be granted to the media under Subsection 203(5), or, at the very least, the media may avoid a fee for the time it takes the governmental entity to review and inspect records to determine if they are responsive, or a fee may also be set aside for the first fifteen minutes of staff time spend in responding to a request. Utah Code § 63G-2-203(5)(a)-(c). Notably, for fees to be waived for the media, the requester must show that they are a “media representative” as defined by statute.

Under the GRAMA, a “media representative” “means a person who requests a record for a story or report for publication or broadcast to the general public.” Utah Code § 63G-2-203(5)(a)(i). Here, Petitioner provided no evidence that he meets that definition. He seems to argue that the information obtained from the records could be used for a news story and he states that he has spoken with journalists about the issue, but speculation on whether the information he seeks is journalistically worthy is not a path we’re prepared to venture down. Although Petitioner argued that he is an aspiring journalist of sorts, he currently is not one. He is not employed by any news outlets, nor has he authored any articles which have been published by any public news organization. Therefore, we find that he is not a “media representative” under the statute. As a result, we find that he is not entitled to the fee waiver contemplated by Subsection 203(5)(b)-(c).

2. The Assessed Fee was Reasonable

Turning now to the reasonableness of the fee. If it’s determined that the entity is permitted to charge a fee, then the fee amount must be reasonable. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶46, 52.

The Respondent charged Petitioner a fee of $48.00 for the voluminous records. Given the time it takes to search, review, compile, reformat, and package the large number of responsive emails, we find that staff time is compensable and $48.00 is a reasonable measure of that time.

In sum, although we sympathize with Petitioner desiring a fee waiver because of the potential journalistic value of the records, we don’t see a strong enough nexus between him and the media industry. Thus, although he argues that the records will primarily benefit the public upon potential publication, we believe the issue is best encapsulated by the succinct conclusion of the Jordan River Court: “Despite finding that [Petitioner’s] purpose was to primarily benefit the public, . . . the [Respondent’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.” Jordan River, at ¶83 (internal quotations and ellipses omitted).

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

Ken Williams
Chair, State Records Committee