State Records Committee Appeal Decision 2019-37
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
MCKHELYN JONES on behalf of the UVU REVIEW, Petitioner, v.
UTAH VALLEY UNIVERSITY, Respondent.
DECISION AND ORDER
Case No. 19-37
By this appeal, Petitioner, Mckhelyn Jones, on behalf of the UVU Review student newspaper, seeks access to records held by Respondent, Utah Valley University (“UVU”).
On or about February 8, 2019, Ms. Jones made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Jones requested eight initial contact reports from the UVU Police Department regarding specific incidents involving the UVU Police Department. She also made a request for a fee waiver stating “I am a member of the media who is collecting data that will be used for publication.”
Except for one report which was still under active investigation, UVU fulfilled Petitioner’s records request without redactions, but denied the fee waiver request. Ms. Jones appealed the denial of the fee waiver to UVU’s Chief Administrative Officer, Val Peterson, claiming that “unreasonable fees” were being placed on Petitioner regarding access to initial contact reports. On or about April 2, 2019, Mr. Peterson upheld the fee waiver denial, stating that the fee being charged was a reasonable fee because it did not exceed the salary of the lowest paid employee who had the necessary skills and training to perform the records request.
On April 23, 2019, Petitioner filed an appeal with the State Records Committee (“Committee”) regarding the denial of the fee waiver request. After hearing oral argument and testimony on October 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). When a governmental entity compiles a record in a form other than that normally maintained by the governmental entity, 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). A governmental entity may not charge a fee for inspecting a record. Utah Code § 63G-2-203(5)(b).
2. Initial contact reports are normally public. Utah Code § 63G-2-301(3)(g). Additionally, a governmental entity may not use the physical form, electronic or otherwise, in which a record is stored, to deny or unreasonably hinder the rights of a person to inspect and receive a copy of a record under GRAMA. Utah Code § 63G-2-201(13). If a governmental entity receives a request for access to a record that contains both information that the requester is entitled to inspect, and information that the requester is not entitled to inspect, the governmental entity shall allow access to the information the requester is entitled to inspect and also deny access to the information that is exempt from disclosure. Utah Code § 63G-2-308.
3. GRAMA 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).
4. 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).
5. In the present case, Ms. Jones argued that Petitioner is a student paper of UVU with limited resources, and the records are needed in order to do newspaper stories concerning the UVU Police Department. Ms. Jones stated that prior to the Fall of 2017, Petitioner had been allowed to inspect and take photographs of UVU Police Department initial contact reports free of charge. However, a change in UVU policy required a payment of $5.00 per incident report. Ms. Jones argued that charging a flat fee for access to each report “makes it difficult for the general public to access this information and difficult for reporters to report on it.”
6. Counsel for UVU argued that the right to inspect a public record free of charge does not apply to records only accessible by a computer or other electronic device owned or controlled by the governmental entity when part of the electronic file contains non-public information that cannot readily be segregated. See, Utah Code § 63G-2-201(1)(b). Counsel stated that a fee of $35.00 for the requested records was a reasonable fee since the reports had to be obtained from a software system used by other law enforcement agencies.
7. After having reviewed the written arguments of the parties and considering the evidence presented by the parties during the hearing, the Committee finds that UVU’s denial of Petitioner’s request for a fee waiver was an unreasonable denial.
8. The Committee is not persuaded that the records are only accessibly by a computer. The records system provides output to formats normally maintained by the governmental entity. Further, the governmental entity has established a standard process to readily segregate information within the initial contact report. The slowness of the record keeping system, allowing the responder fulfilling the request also to do other governmental duties while fulfilling the request, cannot be considered actual costs of providing a record.
9. Petitioner was able to demonstrate that the requested records primarily benefits the public and not a person in that the records were to be used by the UVU student newspaper. The subject matter of the requests (harassment, stalking, fraud, alcohol offense, disorderly conduct, criminal mischief) are subjects of interest to UVU students. Further, Ms. Jones’ argument that “reporting on campus crime is critical to inform the campus of safety risks; it helps inform students, staff, and faculty about the types of crime happening on their campus so that they might take safety precautions” is persuasive. Given the nature of the requests, the purpose of the requests, and past procedures of UVU responding to similar requests, the Committee believes UVU should allow Petitioner to have access to the requested public records free of charge after being segregated from any non-public records as allowed by Utah Code § 63G-2-308.
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is hereby 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 22nd day of October 2019
BY THE STATE RECORDS COMMITTEE
TOM HARALDSEN, Chairperson
State Records Committee
Page Last Updated October 23, 2019 .