State Records Committee Appeal Decision 2019-02
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JANAE WAHNSCHAFFE, Petitioner, v.
HIGHLAND CITY Respondent.
DECISION AND ORDER
Case No. 19-02
By this appeal, Petitioner, Janae Wahnschaffe, seeks access to records allegedly held by Respondent, Highland City.
On or about July 31, 2018, Petitioner made a records request to Highland City ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). The requested records included correspondences to and from specific individuals including the mayor of Highland City, copies of investigative written reports, signed affidavits, a presentation given during a board meeting, and copies of outgoing text messages from a specific person. Petitioner asked only to view or inspect the records and requested a fee waiver because she was the subject of the record.
In a letter dated August 1, 2018, Respondent’s City Recorder stated that the estimated cost for provided the requested records would be $2,021.30 based upon 72.5 hours of staff time at $27.88 per hour. Petitioner was informed that she would be required to pay Respondent $2,021.30 before her request would be processed, and if “this request takes more time to process we will notify you of the additional cost before proceeding.” However, if “it takes less time to process [Respondent] will reimburse [Petitioner].”
Petitioner filed an appeal with the mayor of Highland City on August 1, 2018, urging the mayor to “reconsider the [fee waiver] denial since I am the subject of the material requested.” Petitioner also stated that she believed “it’s in the public interest that the residents of Highland City know [whether Respondent] violated the terms of the settlement agreement [and] whether your actions will cost the taxpayers more money.”
In a letter dated August 14, 2018, the City Administrator for Respondent denied Petitioner’s request for a fee waiver. The letter stated that Respondent’s GRAMA Fee Policy and Procedure states that if the requestor is the subject to the records, “the cost of two hours of staff time is waived.” The letter further stated that if the request is of a personal matter of private interest, “there is no established reason to why the request benefits the public rather than a person.” The letter then stated that her “request is for a voluminous amount of records that qualify as an extraordinary circumstance.”
Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 10, 2019, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. 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). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. GRAMA also specifies that 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 an individual specified in Subsection 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)(a-c).
3. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). Additionally, the adjudicative body 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)(ii). The reviewing body should view the entity’s decision in the context of the governing statute and assess “whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶ 53, __ P.3d __.
4. After having reviewed all written evidence and hearing arguments by the parties during the hearing, the Committee finds that Respondent’s denial of Petitioner’s request for a fee waiver was an unreasonable denial. Based upon the evidence presented, the Committee is convinced that granting Petitioner’s fee waiver request would benefit the public more than a person. For example, several articles had been written in the Daily Herald newspaper regarding the subject matter of the requested records showing that public interest already exists. The Committee also finds that release of the records would allow the public to have access to important information concerning the conduct of the public’s business, which is one of the constitutional rights recognized by the Legislature as the basis for GRAMA. See, Utah Code § 63G-2-102(1)(a). Accordingly, the Committee finds that granting of the request for a fee waiver by Petitioner allowing release of the records would benefit the public consistent with Utah Code § 63G-2-203(4)(a).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Janae Washnschaffe is GRANTED.
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 a parties’ rights on appeal, a party may wish to seek advice from an attorney.
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 17th day of January 2019.
BY THE STATE RECORDS COMMITTEE
TOM HARALDSEN, Chair
State Records Committee
Page Last Updated January 24, 2019 .