Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2012-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KEN CROMAR, Petitioner, vs.

CITY OF CEDAR HILLS, Respondent.

DECISION AND ORDER

Case No. 12-11

By this appeal, Petitioner, Ken Cromar, on behalf of Cedar Hills Citizens for Responsible Government, appeals the denial of his records request for access to e-mails to and/or from certain members of the City of Cedar Hills governing body.

FACTS

On March 5, 2012, Mr. Cromar made records requests pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to the City of Cedar Hills, (“Cedar Hills”). Mr. Cromar wanted to view “[a]ll e-mails from Konrad Hilderbrandt and Eric Richardson to each other, and/or to any Council member, using whatever e-mail address, from January 1, 2011 to present.” Cedar Hills provided some records responsive to Mr. Cromar’s request for certain e-mails. However, Cedar Hills informed Mr. Cromar that although additional records/e-mails may be responsive to his request, Cedar Hills would require a pre-payment of the estimated cost of search, retrieval and compilation of the records pursuant to Utah Code § 63G-2-203(8). Mr. Cromar disagreed with this decision, claiming that he was entitled to view the records free of charge pursuant to Utah Code § 63G-2-201(1).

Mr. Cromar filed an appeal with the State Records Committee (“Committee”). The sole issue before the Committee relates to the remaining e-mails not yet provided by Cedar Hills from Konrad Hildebrandt and Eric Richardson to each other and/or the City Council. The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on June 15, 2012, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Every person has the right to inspect a public record free of charge, and the right to take a copy of the public record during normal working hours, subject to Sections 63G-2-203 and 63G-2-204. Utah Code § 63G-2-201(1).

3. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). The governmental entity may require payment of past and future estimated fees before beginning to process the request the fees are expected to exceed $50.00. See, Utah Code § 63G-2-203(8).

4. A governmental entity may not charge a fee for inspecting a record or reviewing a record to determine whether it is subject to disclosure. See, Utah Code § 63G-2-203(5).

5. At the hearing, counsel for Cedar Hills argued that they have determined that records/e-mails responsive to Mr. Cromar exist and in fact, they have gathered “over two thousand” documents and determined the cost alone of copying the documents would exceed $500.00. Cedar Hills indicated that it would provide the records upon payment of their fees pursuant to Utah Code § 63G-2-203(8). Counsel also argued that the record series retention for the e-mails requested is one year and that e-mails requested prior to March 5, 2011 could not be provided to Mr. Cromar.

6. Mr. Cromar argued that he should not be charged for the cost of searching and compiling the records he seeks because pursuant to Utah Code § 63G-2-203, his request primarily benefits the public. Mr. Cromar also claimed that pursuant to Utah Code § 63G-2-203(2), the records should be normally maintained by the governmental agency and as such he should not be charged for the cost of searching and compiling the records.

7. After hearing the arguments of the parties, and having reviewed their submissions, the Committee makes the following findings: (1) Because the requested e-mails are not normally maintained in the format being requested, Cedar Hills may charge for search and compilation to locate and make the documents available to Mr. Cromar; (2) Since the estimated cost of fulfilling Mr. Cromar‘s remaining request would exceed $50.00, Cedar Hills may require prepayment of its estimated fees pursuant to Utah Code § 63G-2-203(8); (3) After paying said fees, Mr. Cromar is entitled to receive public records from Cedar Hills of all correspondence between Konrad Hildebrandt and Eric Richardson and/or to any member of the City Council, using whatever e-mail address, since March 5, 2011; and (4) that after providing a reasonable estimate and collection of a pre-payment of estimated fees, Mr. Cromar should be allowed to view the records relevant to his request or receive paper copies of the records at Mr. Cromar’s discretion.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ken Cromar is upheld as outlined in paragraph 7 above.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) a notice of intent to appeal. If the government entity 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.

Entered this 26th day of June, 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee