State Records Committee Appeal Decision 2024-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

UTAH LIEUTENANT GOVERNOR’S OFFICE, Respondent,

DECISION AND ORDER

Case No. 24-07

By this appeal, Petitioner, Brady Eames, requests a fee waiver for records held by Respondent, Utah Lieutenant Governor’s Office (“LGO”).

FACTS

On September 1, 2023, Petitioner submitted a records request to the Respondent pursuant to the Government Records Access and Management Act (“GRMA”). Specifically, Petitioner sought the “Official Signature Sheet for Bills and Resolutions State of Utah” pertaining to S.B. 111 (2020), S.B. 181 (2021), and S.B. 146 (2023). In conjunction with his request, Petitioner requested that any fees connected to filling the request be waived. The basis for the request was that Petitioner “believe[s]” the requested records are “all vital public records.”
The Respondent’s records officer replied to Petitioner’s request and informed him that there would be a $43.75 fee charged for filling the request. This amount covered the Respondent’s time in searching for and attempting to retrieve responsive records.

On September 13, 2023, Petitioner submitted an expedited appeal to the LGO’s chief administrative officer (“CAO”) to challenge the denial of a fee waiver. The CAO responded to the appeal on September 27, 2023, and affirmed the fee waiver denial. The basis of her decision was that “the request fails to provide adequate reasoning to the public benefit of release of the records.”

Petitioner has now appealed to the State Records Committee (“Committee”), On January 18, 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

Whether the decision to deny 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). “Although the Legislature has mandated ‘easy’ access to public records, it has also attempted to prevent public agencies from becoming overwhelmed by time-consuming and burdensome records requests by allowing government agencies to charge for the production of records under certain circumstances.” Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136, ¶23. In Section 203, GRAMA states that a governmental entity may charge a reasonable fee to cover the actual costs of providing a record. Utah Code § 63G-2-203(1)(a). When an entity compiles a record in a form other than how the record is normally maintained, the actual costs include the cost of staff time for search, retrieval and other administrative costs. Utah Code § 63G-2-203(2)(a)(ii). But any hourly charge under Subsection 203(2)(a) “may not exceed the salary of the lowest paid employee” who has the necessary skill and training to fill the request. And in all cases, the entity’s decision to deny a requested fee waiver is reviewed on a standard of reasonableness. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52.

In this case, the Respondent’s record officer spent an hour and 45 minutes searching for responsive records. The records officer hourly rate is $26.00 per hour. This equates to a total fee of $50.25. As the Respondent assessed a total fee of $43.75, we find that in light of the efforts taken to search for responsive records, the decision to deny the fee waiver request was reasonable under the circumstances.

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 29 day of January 2024

BY THE STATE RECORDS COMMITTEE

Kenneth Williams
Chair, State Records Committee