State Records Committee Appeal Decision 2023-62

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LYNN DAVID, Petitioner, v.

WASATCH COUNTY, Respondent,

DECISION AND ORDER

Case No. 23-62

By this appeal, Lynn David (“Petitioner”), requests records allegedly held by Wasatch County (“Respondent”).

FACTS

Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On July 10, 2023, Petitioner made the following request:

• Any and all written complaints received by Wasatch County from the public or another governmental entity concerning any activities of Wasatch County. This would include, but not be limited to, activities of the county Manager’s Office, Assessor’s Office, Clerk’s Office, Engineering Office, Auditor’s Office, County Council’s Office, Surveyor’s Office, Treasurer’s Office, Recorder’s Office, etc.
• This would include written complaints received by mail, email, hand delivered, or other method.
• The name of the complaint may be redacted if that is appropriate.
  Also requested is documentation related to the Wasatch County response to each complainant.
• This documentation is requested for the period of January 1, 2015, through June 30, 2023.
  Since it would be logical for the Chief Administrative Officer of Wasatch County to track and retain this information by year and by department, it is requested that the documentation be provided in this manner.
• Mr. David also requested a fee waiver for the stated purpose that releasing the record primarily benefits the public.

Due to the breadth of the request and the issues involved with identifying responsive records, Respondent’s records officer initially responded to Petitioner on July 18, 2023, informing him that “significant effort” would be required to fulfill such a broad request and requested that he clarify his response to more specific parameters. The records officer invited him to revise his request.

Petitioner responded to the records officer on July 19, 2023, with some clarification. He informed the records officer that he was not interested in records concerning “questions,” “appeals,” “inquiries,” “applications,” “GRAMA requests,” and other issues unrelated to an individual’s dissatisfaction with Respondent. He informed the officer that he would like to proceed with his request as originally submitted.

Respondent did a preliminary search in the email archive software using the term “complaint” to attempt to get an idea of the number of potentially responsive emails that would need to be reviewed in order to respond to the request. The search returned 34,324 potentially responsive emails for the timeframe of 2015-2023. This estimate didn’t include any other records that might be available in other electronic formats or hardcopy. Respondent denied Mr. David’s fee waiver request and notified him that they would need $8,581 to begin to process his request.

Petitioner appealed the decision to the Chief Administrative Officer (CAO) on July 21, 2023. The CAO denied the appeal “due to the legitimate cost concerns raised by county staff.”

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 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 Committee is asked to determine whether Respondent’s denial of the fee waiver request was reasonable.

STATEMENT OF REASONS FOR DECISION

Under 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, if the records must be extracted from a larger source and it’s not feasible to allow the requester to compile the records himself, the governmental entity may charge a reasonable fee under § 63G-2-203. Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136, ¶¶26, 28. Upon finding that a fee may be charged, a requester may request the fee be waived. Upon 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.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52.

Respondent is a county government office and has multiple divisions within its organization. As such, Respondent has numerous sources to where complaints from the public may be submitted, including online submissions, email, and hard copies mailed in or physically dropped off. From email alone, a basic search for “complaint” returned over 34,000 possible responsive records. Certainly, Respondent cannot be expected to allow Petitioner or any member of the public to search its email server and then examine each email sent to the county to determine its responsiveness. Accordingly, we find that the time it will take to compile records from the multiple sources and then filter through them to determine their responsiveness does permit Respondent to assess a fee to fill the request pursuant to the rule outlined in Graham. Our finding is reinforced by the fact that Respondent’s record officer will need to search multiple sources and divisions to obtain all possible responsive records.

In light of the thousands of records that must be compiled and then reviewed to determine responsiveness, we find that Respondent’s decision to deny the fee waiver request was reasonable. With that said, however, we can appreciate the intent of Petitioner’s endeavor that he testified about in the hearing. We find that Respondent has shown a good faith effort to work with Petitioner to get him the records he seeks. As a result, we suggest to the parties that they corroborate in continued good faith by allowing Petitioner to piecemeal his records request starting with the smaller divisions and offices under Respondent’s purview and then working to its larger sources. This approach, we think, may help satisfy the legislature’s intent that Petitioner have “easy and reasonable access to unrestricted public records” without making Respondent “overwhelmed by [a] time-consuming and burdensome records request.” Utah Code § 63G-2-102(3)(a); Graham at ¶23.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal 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 3rd day of January 2024

BY THE STATE RECORDS COMMITTEE

________________________________
Ken Williams
Chair, State Records Committee