State Records Committee Appeal Decision 2023-41

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL AMANN, Petitioner, vs

UTAH ATTORNEY GENERAL’S OFFICE, Respondent,

DECISION AND ORDER

Case No. 23-41

By this appeal Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by Utah Attorney General’s Office (“Respondent”).

FACTS

On March 12, 2023, Petitioner filed a records request and fee waiver with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Amann requested a fee waiver because “[t]he public has a strong interest in learning about any possible government corruption and favoritism at the Utah Attorney General’s Office (“UAG”) and whether the AG himself is involved, and that includes the hiring of unqualified section chiefs.” Mr. Amann requested the following records:

• AG “blue sheet” for the position,
• The announcement (internally and externally) of the position of section chief for the ICAC and/or CNS, to which she was appointed,
• The date of her appointment,
• The names of any other applicants,
• Records submitted by the applicants,
• The selection packet/materials,
• The questions asked of applicants,
• The names of those who were on the selection panel,
• Records of how the panel members were selected,
• Records of any communications regarding the announcement,
• Records of any communications regarding the selection of panel members,
• Interview notes and grading information from all panel members,
• Records of communications regarding the position including regarding Poulsn’s ultimate selection as section chief, including, but not limited to text messages, emails, Microsoft Teams messages, or any other written record of communications with regard to this position,
• Any incentive awards received by Poulson since January 1, 2013,
• Any “Other Administrative Leave” given to Poulson in addition to any “Other Administrative Leave” provided generally to the office, such as the four hours of “OA” to be used at one’s discretion at holiday time,
• Poulson’s hourly rate prior to being named section chief,
• Poulson’s current hourly rate, and
• Records of AG Sean Reyes’ involvement in the matter

In a letter dated March 27, 2023, the UAG’s office responded to Petitioner’s request, stating:

“The Utah Attorney General’s Office has enacted a Policy for GRAMA Fee Waiver Requests establishing factors to be considered before the Office will grant a fee waiver request based on a claim of public benefit. Based on consideration of the factors identified in the Fee Waiver Policy, I have determined that you have not met your burden of demonstrating that this request primarily benefits the public and that the relevant policy factors weigh in favor of granting your waiver request. Accordingly, your request for a fee waiver is denied.”

The Respondent determined that the request would take between 15 and 20 hours to complete, which accounted for search time and time spent reviewing records for proper classification. The estimate to complete the records request was determined to be $300, and because that amount exceeded the threshold under Utah Code § 63G-2-203(8)(a)(i), the Respondent requested a $300 fee deposit upfront before the records request could be completed.

Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”). On April 24, 2023, the CAO rejected Petitioner’s assertion that the records requested have relevance to “public corruption” or any other official misconduct. The CAO determined that simply stating that the public would benefit from release of government records does not satisfy this condition. He added that the requested records are “directly related to a pending litigation against the Office, For these reasons, the CAO denied the appeal.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On August 28, 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 review the Respondent’s decision to deny the fee waiver request and determine whether that decision was reasonable.

STATEMENT OF REASONS FOR DECISION

A. The Fee the Respondent Assessed was Legally Appropriate

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). When it comes to the right to take a copy of a public record, the government does have some allowances to charge a fee for the record. For instance, when the governmental entity “compiles a record in a form other than that normally maintained by the governmental entity,” it may charge a reasonable fee to cover the entity’s “actual costs” in compiling the record. Utah Code § 63G-2-203(2)(a). For Subsection 203(2), “actual costs” can include the cost of staff time to search, retrieve, compile, format, manipulate, or tailor the record to meet the person’s request. Utah Code § 63G-2-203(2)(a)(i)-(ii). If the fees to compile a record are expected to exceed $50.00, the governmental entity may require payment of the fee before beginning to process the request. Utah Code § 63G-2-203(8)(a)(i).

When it comes to assessing whether the fee is appropriate, Graham v. Davis County Solid Waste Management provides guidance on interpreting Subsection 203(2). There the Court ruled:

may not charge for a request under section 63G-2-203(2) if the agency is only required to retrieve a single document or set of documents from a readily available source and provide them to the requester for inspection. An agency may, however, assess fees in conjunction with a record request that involves extracting materials from a larger document or source and compiling them in a different form. In other words, if an agency is required to do more than simply retrieve and make available a record in its original form, then the agency may charge a compilation fee for its production.

Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136, ¶26. Thus, when determining whether an agency’s fee is legally appropriate, we look for the manner in which the documents must be extracted and whether they must be compiled in a new form to fill the request.

We see that is precisely the case here. Petitioner submitted nineteen distinct record requests. The Respondent testified that the records are housed within several different state agencies (e.g., Division of Human Resources Management; Division of Finance) and many of the records are from over 10 years ago. Due to this, the Respondent testified that because of the large number of records spread across agencies, the records officer would need to contact and consult with numerous records custodians in effort to retrieve the documents. For records that would be found in personnel files, that information would need to be screened for protected information. Additionally, some records will need to be converted into a deliverable format to fill the request due to the nature in which they’re regularly held.

Because the records must be extracted from a larger (several) source, and then must be compiled in a format for delivery that they’re not regularly maintained in, we find that Graham’s requirements are satisfied and the Respondent’s decision to assess a fee has a defensible basis in law.

B. The Benefit of Releasing the Records is Immaterial to the Decision to Charge a Fee

We now turn our attention to the Respondent’s decision to deny Petitioner’s request for a fee waiver.

The GRAMA “encourages” governmental entities to waive fees if releasing the record “primarily benefits the public rather than a person.” Utah Code § 63G-2-203(4)(a). Petitioner relies on this provision in requesting his fee. The Respondent rebuts that the statute applies more to the media where the public interest in the records is presumed. We don’t see the need to interpret Subsection 203(4)(a) at this time; therefore, we decline to do so.

In Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, the Court upheld the trial court’s determination that “[d]espite finding that JRRN’s purpose was to primarily benefit the public, the court concluded that the city’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.” Id. ¶83 (internal quotation marks omitted). Therefore, even if we give Petitioner the benefit of the doubt that releasing the records would primarily benefit the public, the Jordan River Court makes clear that a fee could still be permissible depending on the nature of the request.

As we’ve established that filling the Petitioner’s request will be laborious for the Respondent, we find that whether the records will benefit the public is immaterial to the Respondent’s decision to charge a fee for compiling the requested records.

C. The Respondent’s Decision to Deny the Fee Waiver Request Was Reasonable

The statute’s allowance to charge a fee for a record request does not go unchecked. When a fee waiver request is denied, and that denial is appealed to this Committee, the decision to deny a fee waiver is reviewed under a standard of “whether [the governmental entity’s] decision was reasonable.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52.

The Jordan River Court upheld the trial court’s decision that the fee waiver request denial was reasonable. The decision was mainly due to the “voluminous nature of the request and the effort necessary to compile the requested documents. Id. ¶83. We find that line of reasoning applicable here. As noted above, the Respondent will have to compile the records from several larger sources. Thus, we see no reason why Jordan River cannot be directly applicable. Accordingly, we find that due to the nature of the request, the Respondent’s decision to deny Petitioner’s request for a fee waiver was reasonable.

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 6 day of September 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee