State Records Committee Appeal Decision 2024-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

WEST VALLEY CITY, Respondent,

DECISION AND ORDER

Case No. 24-11

By this appeal, Brady Eames (“Petitioner”), requests a fee waiver and records allegedly held by West Valley City (“WVC”) (“Respondent”).

FACTS

On August 30, 2023, Petitioner submitted two requests to Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the “statutorily required public biannual report that reveals the public funds deposited and pooled in the [Public Treasurer’s Investment Fund] by the public treasurer of [West Valley City Municipal Corporation] for investment by the State Treasurer as of June 30, 2023 (D&I Report).” In conjunction with his request, he also asked for a fee waiver because Petitioner “believe[ed] that the D&I Report is a vital public record.”

However, in an email four days later, Respondent replied to Petitioner informing him that his request wouldn’t be processed because he never paid a $49.03 fee that was assessed on a record request he submitted back on January 10, 2019 (“2019 Request”). Respondent stated that it would not process the current request until that owing balance was paid. After an attempt to gain further information about the owing fee, Petitioner ultimately appealed to Respondent’s chief administrative officer who affirmed the decision not to process the request until that owing fee was paid.

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

We are asked to determine whether Respondent may refuse to process the current request due to a back-owing fee.

STATEMENT OF REASONS FOR DECISION

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 a governmental 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. Therefore, it stands to reason that if a governmental entity does not allow the requestor the opportunity to withdraw or modify the request after learning about the assessed fee, the Graham rule is violated and the fee cannot be enforced.

Here, the record reflects that upon Respondent informing Petitioner that a $49.03 fee would be assessed for the 2019 Request, Petitioner replied back saying,

“Before I pay any fees, please provide me the following:
(1) Standards of classification and designation with respect to each document that I’ve requested (UC 63G-2-701(3)(a).
(2) Consolidated fee schedule with respect to the actual cost of providing me each document that I’ve requested (UC 63G-2-203(3)(c) and -701(3)(c) and WVCMC Code 3-16a-302).
(3) An itemization of the actual cost of providing me each document that I’ve requested (UC 63G-2-203(2)). And
(4) Executive officer’s approval of each fee covering the actual cost of providing me each of the documents that I’ve requested. (UC 63G-2-203(1)).”

Upon receiving Petitioner’s reply, Respondent followed up the same day asking for clarification on whether Petitioner was making a new record request or merely suggesting that Utah law requires that such records must be provided with his requested records. But Petitioner never responded; he only commenced this appeal.

We find that Petitioner’s email stating “Before I pay any fees, please provide me [additional records]” indicated that Petitioner agreed to proceed with the 2019 Request after learning about the assessed $49.03 fee. As a result, GRAMA allows Respondent to require payment for the 2019 Request before beginning to process the current request.

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