State Records Committee Appeal Decision 2023-60

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

OFFICE OF THE UTAH STATE TREASURER, Petitioner,

BRADY EAMES, Respondent, vs

DECISION AND ORDER

Case No. 23-60

By this petition the Office of the Utah State Treasurer (“Petitioner”) seeks a formal order declaring Brady Eames (“Respondent”) a vexatious requester pursuant to Utah Code § 63G-2-209.

ISSUES FOR REVIEW

We must determine whether Respondent is a vexatious requester under Section 63G-2-209, and, if so, the proper amount of time which the Petitioner, including its various divisions, public bodies, and entities, need not respond to Respondent’s records requests.

STATEMENT OF REASONS FOR DECISION

The Utah legislature recently enacted Section 63G-2-209 which grants the Utah State Records Committee (“Committee”) the authority to declare an individual a “vexatious requester” and “order that the governmental entity is not required to fulfill requests from the respondent or a person that submits a request on the respondent’s behalf for a period of time that my not exceed one year.” Utah Code § 63G-2-209(8)(b). In determining whether an individual is a vexatious requester, this Committee must consider the following factors as prescribed by statute:

a. The interests described in Section 63G-2-102;
b. As applicable:
i. the number of requests the individual has submitted to the governmental entity, including the number of pending requests;
ii. the scope, nature, content, language, and subject matter of record requests the individual has submitted to the governmental entity;
iii. the nature, content, language, and subject matter of any communications to the governmental entity related to a record request;
iv. any pattern of conduct that the Committee determines to constitute:
A. an abuse of the right of access to information under GRAMA; or
B. substantial interference with the governmental entity’s operations; and
c. any other factor the Committee considers relevant.
Utah Code § 63G-2-209(9)(a)-(c).

When we examine these factors, we bear in mind that the governmental entity need not prove each individual factor. Rather, the evidentiary burden on the government is to prove through a totality of the circumstances that the individual is a vexatious requester. Utah Administrative Rule R35-1-3(2). This means that we focus on the entire situation in the aggregate and not any one factor.

I. The Interests Described in 63G-2-102

In essence, the interests outlined in Section 102 are the requester’s right of access to information concerning the conduct of the public’s business, and the public policy interest in allowing the government to restrict access to certain records. Utah Code § 63G-2-107(1)-(2). Said better, and perhaps in a context more applicable to this appeal, the Utah Court of Appeals framed Section 102’s competing interests the following way: “In enacting GRAMA, our Legislature has balanced the public’s right to access government documents against the government’s interest in operating free from unreasonable and burdensome records requests.” Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist., 1999 UT App 136, ¶22.

Respondent is a self-proclaimed government “watchdog” who requests records to ensure government accountability. His intention and efforts to hold government accountable are indeed laudable and we are mindful of his right to do so. However, the government should also be afforded the opportunity to operate without “unreasonable and burdensome records requests.” Id.

In the year to date, Respondent has submitted 43 record requests to the Petitioner. The second most frequent requester has submitted 8. With each request, the statute requires a government response within 10 business days, unless the request requires an expedited response. Over the course of 43 record requests, the Petitioner must reallocate its existing resources to process and respond to each request. This entails reviewing the request, processing it, searching for responsive records, reviewing the records for protective classifications, assessing whether a fee is warranted and will be charged, and then responding to the request. These efforts are in addition to the staff’s routine and ordinarily expected job duties, which must be suspended to respond to each request.

There is no question that the Petitioner’s burden is substantial. For this, we find that the Respondent’s right to access records cannot go unchecked in relation to the burden his requests impose.

II. Scope and Nature of the Requests

The next factor we are to consider is the scope and nature of the requests. Petitioner has a habit of submitting record requests in a unique email format. As evidenced by the submitted record request for our consideration, Respondent routinely lays out his request in a convoluted outline format that reads more like a lengthy statutory scheme than a record request. Each request is riddled with acronyms created by definition and then used profusely throughout the request; various subsections of his outline format refer by reference to other subsections; the font type is heavily boldened throughout the request; and the outline format is fragmented into sections with differing headings. What appears to be an attempt at appreciable organization often has the exact opposite effect and comes across as a chaotic, unnecessarily lengthy, and barely decipherable request. Indeed, the Petitioner’s records officer, Brittany Griffin, testified to the Committee at the hearing that many of the Respondent’s requests are unclear as to what he is requesting. Consequently, his requests take a great deal of time to read through and decipher. Ms. Griffin also testified that on several occasions she has had to contact Respondent to get clarity on his requests.

The Petitioner further presented to the Committee evidence that many of Respondent’s requests seek records that are already publicly available through online resources. Because the records are already available, the Petitioner unnecessarily wastes time reviewing, processing, and sometimes searching for records only to discover they are publicly available.

Accordingly, in consideration of the number of requests, their confusing and difficult nature, and the often superfluous scope of requesting already publicly available records, we find that the burden on the Petitioner in handling the requests is unnecessarily substantial and weighs in favor of the Petitioner.

III. Scope, Nature, and Language in Communications Between the Parties

The Petitioner argues that communications with Respondent are unnecessarily excessive, terse, and sometimes hostile. To support this, the Petitioner claims the following:

• Since 2021, Treasurer, Marlo Oaks, has received approximately 340 emails from Respondent;
• Since 2019, Chief Deputy Treasurer, Kirt Slaugh, has received more than 480 emails from Respondent;
• Since 2021, Brittany Griffin has received approximately 250 emails from Respondent;
• Since February 2023, the Petitioner’s attorney has received exactly 257 emails from Respondent, either cc’ed or as the addressee.

Additionally, in her sworn statement submitted to the Committee, Ms. Griffin states:

In many of Mr. Eames’ communications, he has made significant and unsubstantiated claims and attacks on the character and competence of employees, including calling staff members criminal, and making unsubstantiated claims of fraud. Many of his communications with staff are aggressive in nature. Exhibit A, Sworn Statement of Brittany Griffin, at 2.

In our review, we see no evidence, except for Ms. Griffin’s claims that Respondent’s language carries animus toward the Petitioner and its staff. The Petitioner has provided no evidence for us to review on this point, except for Ms. Griffin’s testimony, which although we consider its weight, is still a statement without further corroboration. Had the Petitioner presented us with sample communications to support the claims, we might be much more compelled to make a finding in its favor on this point. Accordingly, we find the evidence lacking to convince us that Petitioner’s language and communication is of a nature that weighs for the Petitioner.

IV. Pattern of Behavior

In addition to the above factors, Ms. Griffin also testified that Respondent has a pattern of submitting requests and, when the Petitioner responds by assessing a fee, he appeals the decision to assess a fee (or deny his request for a fee waiver) and then later withdraws his appeal after the Petitioner and its counsel expends significant resources in their handling of the appeal. According to Ms. Griffin, this pattern of behavior is consistent with appeals to both the district court and to this Committee.

As a public body that performs judicial functions, we take judicial notice of the fact that Respondent has appealed fee waiver denial decisions to this Committee, but then withdrawn his appeal as the hearing approaches. See Common Cause of Utah v. Utah Public Service Com’n, 598 P.2d 1312 (“we agree with the proposition that where judicial duties and powers are conferred, there is necessarily implied therein the prerogative of carrying out those duties in the way the judiciary traditionally functions.”). Each appeal requires the Petitioner to begin preparing for the appeal, which entails hours of legal work to gather facts, evidence, and draft its Statement of Facts as Subsection 63G-2-403(5)(a) requires. When Respondent withdraws his appeal closer to the hearing or even during the hearing, the Petitioner incurs not only wasted time and resources, but also additional legal costs related to its counsel preparing for oral argument and presentation. As this practice has occurred multiple times, we find that the Respondent appealing fee waiver decisions and then later withdrawing is of a nature that substantially burdens the Petitioner and interferes with its operations.

CONCLUSION

Upon examining the circumstances surrounding this appeal, Respondent’s numerous requests to the Petitioner, the nature and scope of the requests, and a pattern of behavior that creates a substantial burden on the Petitioner, we find that Respondent is a vexatious requester as GRAMA prescribes.

In reaching this conclusion, we look at the factors and their severity to determine the appropriate amount of time for which Respondent is barred from requesting records from the Petitioner. The Petitioner argues that we should implement a 12-month penalty on Respondent—the maximum time period permitted by Section 209.

In considering the Petitioner’s request, we bear in mind that the only real evidence in this matter was the testimony of Ms. Griffin and her sworn statement. As we discussed above, the lack of evidence gives us some pause in assessing the strength of at least part of the Petitioner’s case. In petitioning this Committee to suspend a citizen’s right of access to government records, we expect a proportional level of direct evidence to support such a suspension. Here, the Respondent himself produced no case to refute Ms. Griffin’s claims as to the number of requests, scope and nature, or pattern of withdrawing appeals. Therefore, we relied on her claims as a sworn witness, but those claims alone don’t warrant a full twelve-month suspension of the Respondent’s right to access.

To date, the Respondent still has 19 pending requests to fill. We find that from the totality of circumstances before us, the vexatious behavior warrants a 7-month suspension by which the Petitioner is not obligated to respond to Respondent’s requests. For clarity, this Decision and Order includes all of Respondent’s pending requests that have not been filled and delivered.

ORDER

THEREFORE, in accordance with our Decision above, the Petitioner’s appeal is hereby GRANTED. The Petitioner has no duty to respond to any pending or future record request submitted by Respondent for 7 months from the date of this Decision and Order.

It is so ordered.

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.

Entered this 28 day of November 2023

BY THE STATE RECORDS COMMITTEE

Kenneth R. Williams
Chair, State Records Committee