State Records Committee Appeal Decision 2024-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL AMANN, Petitioner, v.

ATTORNEY GENERAL’S OFFICE, Respondent,

DECISION AND ORDER

Case No. 24-01

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

FACTS

In relation to ongoing and longstanding litigation with the Respondent, on July 11, 2023, Petitioner submitted two requests to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested:

any and all records of the Utah Attorney General’s Office’s (UTAG’s) representation by Strong and Hanni (SH) and compliance with Utah Procurement Code (UPC) and UTAG’s own policy regarding UPC in the hiring of SH to represent UTAG in any matter involving Paul G. Amann, including, but not limited to (i) text messages; (ii) emails; (iii) memoranda, between UTAG and SH, (iv) any and all requests for proposals (RFP’s); (v) responses to RFP’s; (vi) contracts; and (invoices).

In conjunction with his request, Petitioner also requested a fee waiver because “it is of public interest that the AG’s office continues to hire outside counsel at exorbitant costs and in all likelihood in violation of the Utah Procurement Code (based on UTAG’s historical failure to comply with the Utah Procurement Code) despite UTAG receiving historical attorney raises in 2023.”

Mr. Amann’s second request came on July 15, 2023. when he requested “all records and metadata of the following records with regard to Cynthia Stonebraker Poulson”:

1. Beginning with her employment in the Attorney General’s Office as an education specialist, and through her time as an “analyst” and a paralegal, please provide records if all payments for her dues to the Utah State Bar by anyone employed by the Attorney General’s Office, including but not limited to Ken Wallantine, for Cynthia Stonebraker Poulson prior to her employment as an attorney with the Utah Attorney General’s Office, that is, prior to her obtaining the promotion to “attorney/paralegal” which contract she signed on July 30, 2013.

2. Also please provide records showing the funding source or account for the payment of those bar dues.

3. The AG’s office defended Poulson against a Bar Complaint which came about as a result of crimes Poulson committed prior to her employment with UTAG. UTAG paid attorney Michael Skolnick of Kipp and Christian, P.C. in the amount of $27, 582.23, for representing – not the attorney general’s office but Poulson. Please include any records, including communications, which relate the funding source or account of the revenue for the compensation to Michael Skolnick and/or his firm.

This second request also included a fee waiver request.

The Respondent’s internal policies governing whether a fee waiver may be issued states that the requester bears the burden of demonstrating that “releasing the record primarily benefits the public; and the factors in this policy should be applied to grant the waiver request.” Resp’t’s Statement of Facts, Reasons, and Legal Authority, Exhibit H: Policy for GRAMA Fee Waiver Requests under Utah Code § 63G-2-203(4)(a) (West 2009). The factors to be applied are listed as:

a. Is the request broad or reasonably focused?
b. Would release of the records to the requester contribute significantly to public understanding of the operations or activities of the Utah Attorney General’s Office?
c. Would the expenditure of time and resources in responding to the request significantly affect the Office’s ability to meet its other responsibilities?
d. Are there other methods available to the requester to obtain the information sought, and have those other methods been used?
e. How frequently has this requester and any organization for which the requester works asked for and received a waiver?

Id.

On July 26, 2023, the Respondent’s records counsel denied the fee waiver request for Petitioner’s first request based on a determination that Petitioner had not met his burden of demonstrating that his request primarily benefits the public and that the Respondent’s policy concerning fee waivers weighed against granting his waiver request. Based on the estimation that fulfilling Petitioner’s request would take between 20-25 hours of staff time at a conservative hourly rate of $25 per hour, records counsel quoted Petitioner a minimum fee of $500 to fulfill the request which was to be paid up front before the request could be processed.

On July 28, 2023, Respondent denied Petitioner’s request for a fee waiver in his second record request. This denial mirrored the reasoning and determination in the first denial, including the estimation of time and fees.

On August 5, 2023, Petitioner submitted a combined appeal to the AGO’s Chief Administrative Officer (“CAO”) challenging the denial of a fee waiver and the fee deposit assessment for both requests. Petitioner’s sole basis for appeal was that the fee deposit amount had “no foundation in reality” and was “merely copied pasted [sic] from one case to the next with no regard to the circumstances of each request.”

On August 16, 2023, AGO General Counsel Daniel Burton, acting as CAO, denied Petitioner’s appeal, stating:

Having reviewed your request. I find that the estimate of 20 to 25 hours of staff time to fulfill each request is reasonable and appropriate. In fact, I believe these estimates to be quite conservative. The fact that both requests were estimated to take roughly the same amount of time to fulfill does not show that the estimates are unrealistic or unfounded. Instead, it merely shows that the requests are similar in terms of scope, complexity, and anticipated volume of records to be reviewed and produced.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On January 4, 2024, 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 denial of the fee waiver request and determine if the denial was appropriate.

STATEMENT OF REASONS FOR DECISION

GRAMA states that “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, the legislature has also “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 Management and Energy Recovery Special Service Dist., 1999 UT App 137, ¶22. One way of balancing and protecting the government’s interest in that regard is to impose fees for the production of records. While the law acknowledges that fees for records “does, to some extent, limit access to pubic records,” the law does not allow “for a lawful custodian to bear the burden of paying for all expenses associated with a public record request.” Id., ¶25. Therefore, GRAMA allows a governmental entity to assess compilation fees for a record request if the request “requires the agency to extract materials from a larger document or source and it is not feasible or reasonable to allow the requestor to compile the records.” Id., ¶28; See also Utah Code § 63G-2-203(2)(a). We also note that, although not required, GRAMA encourages a fee waiver if releasing the records would primarily benefit the public rather than a person. Utah Code § 63G-2-203(4)(a). In any review of a governmental entity’s decision to deny a fee waiver request, “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.

There appears to be two grounds by which the Respondent is assessing a fee and denying a waiver. First, the compilation of records from a larger source and the time it will take to fill the request; and, second, the records primarily benefit the requester rather than the general public.

With respect to the first point, the Respondent argues that the records request and situation is virtually identical to their previous records dispute in Amann v. Utah Attorney General’s Office, Decision and Order no. 23-41, Utah State Records Committee (entered Sept. 6, 2023). In that case, we found the Respondent’s fee waiver denial reasonable because the record request would’ve required the Respondent to compile the records from a much larger source and then compile them in a deliverable format to fill the request. The Respondent argues that just like in that case, the request here would require it to search for records among its different divisions (e.g., criminal division, finance division) for records that date back beyond ten years, which would necessitate an archival search. It’s from this effort that the Respondent estimates the 20-25 hours of search time.

We agree with the Respondent. Not only are the documents being pulled from a larger source, that being multiple divisions within its offices, the date range for the requested records goes back at least ten years, which requires the Respondent to search its records vault. Thus, the requirements of Subsection 203(2)(a) is satisfied. Further, because the records are housed in the archives, Petitioner could not obtain the records without the assistance of the Respondent. Thus, Graham’s requirements are satisfied here in determining that the decision to assess a fee was permissible.

As Jordan River Restoration Network instructs us to look only at whether the Respondent’s decision is reasonable, we find that both the estimated fee of $500 to fill the request and the decision to deny the waiver request are reasonable.

To the second point: The parties have been engaged in ongoing litigation for quite some time. Additionally, the parties have also appeared before this Committee numerous times concerning record requests either directly or tangentially related to the issues they are or might be litigating. While we are mindful of Petitioner’s claim that his record request serves the benefit of the public because he seeks to hold the Respondent accountable for alleged corruption, we can’t overlook the fact any records he receives are helpful to his current claims and allegations against the Respondent. This is especially true in light of the Respondent’s testimony that discovery has closed in their current litigation and GRAMA is the only vehicle now available to obtain documents for his case. Because of this, we can’t agree with Petitioner’s claim that his record request “primarily benefits the public” rather than himself. Utah Code § 63G-2-203(4)(a) (emphasis added). Moreover, even if the public was the primary beneficiary of releasing the records, we acknowledge there is no statutory mandate to waive the fee—the operative word in the statute is “encourages.” Without a compelling reason in front of us, we won’t disturb the Respondent’s decision to charge a fee on these grounds.

In conclusion, we find that the Respondent adhered to both the law and its policies concerning fee waiver determinations. We also find that the request was to primarily benefit Petitioner, not the public. Therefore, as Amann, 23-41, is analogous to this case, we find that the Respondent’s fee waiver denial and its fee were both reasonable.

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 16 day of January 2024

BY THE STATE RECORDS COMMITTEE

Kenneth Williams
Chair, State Records Committee