State Records Committee Appeal Decision 2023-49

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN BOOS, Petitioner, vs

SAN JUAN COUNTY, Respondent

DECISION AND ORDER

Case No. 23-49

By this appeal Steven Boos (“Petitioner”), requests a fee waiver and records allegedly held by, San Juan County (“Respondent”).

FACTS

Petitioner is an attorney who, on November 3, 2022, filed a record request with Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). His request sought 61 total items that related to Respondent allegedly releasing emails that were private and confidential under attorney-client privilege without authorization. According to Petitioner, the emails and other records were released in response to a GRAMA request from a third-party and subsequently publicized. Further, Petitioner alleges that he, his clients, and his paralegal are the subjects of the vast majority of the requested records. Petitioner also requested a fee waiver.

In an initial response dated December 2, 2022, Respondent informed petitioner that upon reviewing the request, the majority of the requested items would not require a fee, specifically, those items that reference Petitioner or his paralegal, as well as those which implicate his legal rights. However, items 25-29 and 32-34 would warrant a charge because neither Petitioner nor his paralegal are the subject of the records, nor is Petitioner mentioned by name. The estimated total fee was $1,385.20 and the request would not be processed until the fee was paid in full. Additionally, Respondent informed Petitioner that items 60 and 61 were available on Respondent’s website.

In a follow-up response on December 12, 2022, Respondent delivered some but not all of the records. Of the 61 items requested, Respondent withheld 36 of them on the basis that a fee for the records must be paid before they would be disclosed. Respondent also stated that in addition to the other withheld records, items 14 and 18 also warrant a fee for their disclosure. For this, on January 9, 2023, Petitioner appealed to Respondent’s chief administrative officer (“CAO”). In that appeal, Petitioner specifically argued that not only have requested records been withheld, but the fees assessed for items 14, 18, 25-29, and 32-34 were improper because “a government disclosure and compromise of confidential and privileged records is a matter of public interest,” and “since the requester himself may retrieve and compile the records, no fee should be charged” (Petitioner then cited Graham v. Davis County, etc. 979 P.2d 363, 372 (Utah Ct.App. 1999) in support for that notion). However, Petitioner’s appeal went unanswered, which constitutes a formal denial under Utah Code § 63G-2-401(5)(b). [1]

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On September 21, 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

The issue before us is whether Respondent’s denial of the fee waiver request was reasonable.

STATEMENT OF REASONS FOR DECISION

Although GRAMA provides that a person has the right to inspect a public record and even take a copy of a public record during working hours, (Utah Code § 63G-2-201(1)(a)), the law also permits the government to assess a fee for requested records in certain situations. For instance, when a governmental entity compiles a record in a form other than that which it normally maintains the record in, the entity may assess a fee for the cost of staff time to search, retrieve, compile, format, and tailor the records to the request. Utah Code § 63G-2-203(1)(2)(a)(i)-(ii). When assessing the fee, the hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to fill the request. Utah Code § 63G-2-203(2)(b). If the fee is expected to exceed $50.00, the governmental entity may require payment of the estimated fee upfront before processing the request. Utah Code § 63G-2-203(8)(a)(i).

Here, the records are voluminous and require notable effort in retrieving, compiling, and reviewing them for any information that is protected under GRAMA. After this effort, Respondent will need to redact the records accordingly, then package and deliver them to Petitioner. We find that these efforts warrant the fee.

In Petitioner’s materials he argues that he and his clients are the subjects of the records. As a result, a fee waiver is in order. We have no reason to question his claim about being the subject of the records, but GRAMA doesn’t require a fee waiver in such cases. GRAMA states that a governmental entity is encouraged to fill the request if it determines that the requestor is the subject of the record. Utah Code § 63G-2-203(4)(b). This does not create a mandate on the government to waive the fee, and certainly when the records sought are voluminous, the efforts to fill the request may entirely override the policy encouraging a fee waiver. See Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62 (despite records request primarily benefiting the public, the decision to deny the fee waiver request was reasonable because the records were voluminous and would require numerous hours to compile and copy). Accordingly, we find that the decision to deny the fee waiver request was reasonable in this instance.

ORDER

THEREFORE, in accordance with our decision, Petitioner’s request 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 2nd day of October 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee

1. Respondent has shown that its CAO did respond to the appeal in a letter dated January 20, 2023, but the letter, unfortunately, got trapped in the CAO’s email outbox and was never formally delivered on time. In the letter, the CAO explained why the remaining records warrant a fee and he ultimately upheld Respondent’s decision.