Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Decision 2014-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SAM ALLEN, Petitioner, vs

EAGLE MOUNTAIN CITY, Respondent.

DECISION AND ORDER

Case No. 14-07

By this appeal, Petitioner, Sam Allen, seeks a fee waiver for records he received from Eagle Mountain City, Respondent.

FACTS

On November 21, 2013, Mr. Allen made a records request to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”), for: (1) Copies of Respondent’s credit card statements from 2010 to 2013 including any individual statements for all persons issued credit cards through Respondent (city employees, administrators, contractors, and/or public officials); (2) A copy of Respondent’s credit card policy during this time period; and (3) A copy of city directories that included employees, department heads, managers, administrators, and public officials during this time period. Additionally, Mr. Allen requested a waiver of any fees for these records claiming that the records were primarily for the benefit of the public.

In a letter dated November 25, 2013, the Eagle Mountain City Recorder denied Mr. Allen’s fee waiver request finding that the record request primarily benefited Mr. Allen and not the public, and estimated the fees to be $400.00 based upon staff time hourly rate of $31.15. Mr. Allen paid Respondent $400.00 and Respondent began processing Mr. Allen’s records request.

In an e-mail dated January 22, 2014, Mr. Allen questioned the $31.15 hourly rate claiming that it was an “exorbitant rate.” Mr. Allen also renewed his request for a waiver of the fees for fulfilling his records request. Mayor Chris Pengra denied Mr. Allen’s request to waive the fee and maintained that the $31.15 per hour fee was reasonable. The Mayor stated the hourly fee represented the actual hourly rate of the employee who completed his request. The hourly rate included the employee’s salary plus benefits. In total, the project took the employee 32.76 hours to complete with copying fees of $75.70.

Mr. Allen filed an appeal with the State Records Committee (“Committee”) pursuant to Utah Code § 63G-2-403(1). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on April 10, 2014, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Every 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, subject to Utah §§ 63G-2-203 and 63G-2-204. Utah Code § 63G-2-201(1).

2. 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). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, the actual costs may include: (1) The cost of staff time for compiling formatting, manipulating, summarizing, or tailoring the record either into an organization or media to meet the person’s request; (2) The cost of staff time for search, retrieval, and other direct administrative costs for complying with a request; and (3) The actual incremental costs of providing the electronic services and products together with a reasonable portion of the cost associated with formatting or interfacing the information for particular users. Utah Code § 63G-2-203(2)(a).

3. An hourly charge for providing a record may not exceed the salary of the lowest paid employee who, in the discretion of the custodian of the records, has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). No charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).

4. A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record or one specified in Utah Code § 63G-2-202(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4).

5. A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person who is denied access to a record. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b).

6. Mr. Allen argued that he should receive a fee waiver for his requested records because release of the records primarily benefits the public. Mr. Allen claims that the records show that credit card charges were made for non-essential governmental items such as meals, clothing, gifts, and events. Counsel for Respondent stated that Mr. Allen is primarily using the information for political purposes and not for the benefit of the public. Counsel also stated that the $31.15 per hour amount was determined based upon the salary plus the benefits of the lowest paid employee capable of providing the requested records.

7. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, the Committee concludes that the denial of the fee waiver by Respondent was not unreasonable. Utah Code § 63G-2-203(4) “encourages” a governmental entity to fulfill a records request without charge under certain circumstances, but GRAMA still gives a governmental entity the discretion to deny a fee waiver request as long as the denial can be considered reasonable.

8. The Committee also finds that the $31.15 per hour charge was unreasonable pursuant to Utah Code § 63G-2-203(2)(b), which states in part that the hourly charge “may not exceed the salary of the lowest paid employee.” “Salary” is not defined in GRAMA. However, “gross compensation” is defined in GRAMA as “every form of remuneration payable for a given period to an individual for services provided including salaries, commissions, vacation pay, severance pay, bonuses, and any board, rent, housing, lodging, payments in kind, and any similar benefit received from the individual’s employer.” Utah Code § 63G-2-103(12) (emphasis added). This definition of “gross compensation” makes it apparent that under GRAMA, “gross compensation” is broader than “salary” and should not be used as the sole basis for computing the “salary of the lowest paid employee” in Utah Code § 63G-2-203(2)(b). Accordingly, Respondent may only charge an hourly fee based upon the salary of the lowest qualified employee minus the first quarter hour of staff time, and not based upon the employee’s gross compensation.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sam Allen, of his denial of a fee waiver is DENIED. IT IS ALSO ORDERED THAT the Respondent’s hourly charge may not exceed the “salary” of the lowest paid capable employee and relief is GRANTED concerning the reduction of the per hour fee charged by Respondent.

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 21st day of April 2014.

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Chairperson
State Records Committee