State Records Committee Appeal Decision 2024-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

UTAH LEAGUE OF CITIES and TOWNS, Respondent,

DECISION AND ORDER

Case No. 24-09

By this appeal, Brady Eames (“Petitioner”), requests records allegedly held by Utah League of Cities and Towns (“ULCT”) (“Respondent”).

FACTS

On or around August 20, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested records showing “the deposit and investment report that pertains to the time period January 1, 2023 to June 30, 20203 and that was made by the public treasurer of the [Utah League of Cities and Towns] (Report).”

On August 31, 2023, the Respondent replied to the request, informing Petitioner that he had an outstanding amount of $84.10 related to a previous record request on January 28, 2022 (“2022 Request”), and that, because of the owing amount, the request for the Report would not be processed until the owing fee was paid.

Petitioner filed an appeal to the chief administrative officer (“CAO”) on September 2, 2023. However, from the record, it appears that the CAO failed to respond to the appeal, which is the “equivalent of a decision affirming the access denial” under Utah Code § 63G-2-401(5)(b)(i).

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

The parties ask us to review two issues. First, whether the Respondent’s refusal to process the current record request because of the back-owing fee constitutes a formal denial under GRAMA that would trigger appeal rights and our jurisdiction over the matter; and, second, if we do have jurisdiction over the appeal, whether the current request for records can be denied due to the back-owing fee.

STATEMENT OF REASONS FOR DECISION

1. Restricting Access to Records Due to Past-Owing Fees Constitutes a Denial Under GRAMA

To begin, we take on the issue of whether this appeal is ripe for adjudication. The Respondent argues that this Committee doesn’t hold jurisdiction over the matter because Petitioner’s request was never formally denied. Rather, the argument goes, the current record request is merely being held until the fee for the 2022 Request is paid, and because it’s being held in an unprocessed state, the Respondent argues that the request is not actually denied nor could it be..

When a governmental entity receives a request for records, it must, no later than 10 business days after receiving the request, or five business days if the request warrants an expedited response, respond in one of the following ways:

(i) Approve the request and provide a copy of the record;
(ii) Deny the request in accordance with the procedures and requirements of Section 63G-2-205;
(iii) Notify the requester that it does not maintain the record requested and provide, if known, the name and address of the governmental entity that does maintain the record; or
(iv) Notify the requester that because of one of the extraordinary circumstances listed in Subsection (6), it cannot immediately approve or deny the request, and include with the notice:
(A) A description of the circumstances that constitute the extraordinary circumstances; and
(B) The date when the records will be available. . . . Utah Code § 63G-2-204(4)(b)(i)-(iv).

Thus, under the law, a governmental entity’s response to a records request, must fall into one of these four types of responses. Of the four that the statute outlines, only Subsection (4)(b)(iv)’s response is for a situation where the governmental entity can neither approve or deny the request, but for the government to lawfully utilize a non-approval/non-denial response, its reasoning must comport with Subsection 204(6). Therefore, if the Respondent is correct that it can neither approve or deny Petitioner’s request because of a back-owing fee, then non-payment for a previous record request would have to be listed as an extraordinary circumstance under Subsection (6).
Subsection 204(6) states:

The following circumstances constitute “extraordinary circumstances” that allow a governmental entity to delay approval or denial by an additional period of time . . . if the governmental entity determines that due to the extraordinary circumstances it cannot respond within the time limit provided in Subsection (4):

(a) another governmental entity is using the record . . . ;
(b) another governmental entity is using the record as part of an audit, and returning the record before the completion of the audit would impair the conduct of the audit;
(c) (i) the request is for a voluminous quantity of records or a record series containing a substantial number of records; or
(ii) the requester seeks a substantial number of records or records series in requests filed within five working days of each other;
(d) the governmental entity is currently processing a large number of records requests;
(e) the requests requires the governmental entity to review a large number of records to locate the records requested;
(f) the decision to release a record involves legal issues that require the governmental entity to seek legal counsel . . . ;
(g) segregating information that the requestor is entitled to inspect from information the requester is not entitled to inspect requires extensive editing; or
(h) segregating information that the requester is entitled to inspect from information the requester is not entitled to inspect requires computer programming. Utah Code § 63G-2-204(6)(a)-(h).

Noticeably absent from the list is the circumstance where the requester has not paid an owing fee connected to a previous records request. Because such a situation is not listed within Subsection (6) as a reason permitting the entity to delay approval or denial, we cannot agree with the Respondent’s claim that Petitioner’s appeal rights have not been made effective by virtue of it delaying its response. The law is equally clear that when the Respondent received Petitioner’s request, it had ten business days to issue a formal approval or denial. Utah Code § 63G-2-204(4)(b). If the Respondent “fails to provide the requested records or issue a denial within the specified time period, that failure is considered the equivalent of a determination denying access to the record.” Therefore, because the Respondent didn’t have a statutorily permitted circumstance by which to delay its formal response, and it didn’t formally approve or deny Petitioner’s request within ten business days, we find that the Respondent has effectively denied Petitioner’s request by operation of law. As a result of the legal denial, Petitioner’s appeal rights sprung into effect and this Committee has jurisdiction to hear and decide his appeal.

2. The Respondent May Deny the Request Due to the Owing Fee
GRAMA provides 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, in enacting GRAMA, the legislature also sought to balance the public’s right to access records with the burden shouldered by government in receiving “time-consuming and burdensome records requests.” Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist., 1999 UT App 136, ¶23. This balance is struck by the government’s ability to assess fees for certain requests. See Utah Code § 63G-2-203. If a fee is assessed on a request and the requestor files a new request in the future, the governmental entity “may require payment of past fees . . . before beginning to process the request if: (ii) the requester has not paid fees from previous requests.” Utah Code § 63G-2-203(8)(a)(ii).

When it comes to fees, the Graham court instructed that when a governmental entity imposes a fee on a requester, the entity must “prior to compiling records and imposing a fee, [ ] inform the requester that fees will be assessed and, if so desired, allow the requestor to modify or withdraw the request based on this information.” Id. ¶27. Thus, whether a governmental entity may demand payment for past owing fees before filling a new records request depends on whether the past fees were assessed in accordance with Graham’s instruction.

In this case, the record reflects that when Petitioner submitted his 2022 Request, the Respondent uploaded the responsive records through its electronic record portal. In addition to the uploaded records, the portal also produced a notification of the fee that the Respondent assessed for producing the records. As Graham clearly requires that a requester be given notice of an assessed fee and the opportunity to modify or withdraw the request before the records are compiled, the fact that the Respondent used the records portal to deliver the records and notify Petitioner of the fee does not lend to the cleanest demarcation between fee notices and record delivery as Graham suggests. However, we do find it material that in order to retrieve the records from the portal, Petitioner had to take the affirmative action of downloading the file. That is, the portal essentially makes the records available for retrieval; it does not actually send the records to the requester. Thus, Petitioner was made aware of the fee when the records were offered for download. As Petitioner admitted in the hearing that he downloaded the records that were made available to him, we find that he consented to the fee by doing so. At any time prior to downloading the records Petitioner could have contacted the Respondent to object to the fee, modify, or withdraw his request. Nor did Petitioner ever appeal the assessed fee. Instead, he proceeded to download the available records. Accordingly, we find that the past owing fee was permissibly levied and the Respondent may refuse to process the current request until the 2022 Request fee is paid.

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