State Records Committee Appeal Decision 24-38

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COREY COLEMAN, Petitioner, v.

VERNAL CITY, Respondent,

DECISION AND ORDER

Case No. 24-38

By this appeal, Corey Coleman (“Petitioner”), challenges the fee for records charged to him by Vernal City (“Respondent”).[1]  

FACTS

On October 26, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested account ledgers, receipts, invoices, and contracts associated with multiple city account numbers, for the period from January 1, 2017, to September 1, 2023. The account numbers specified in the request are detailed as follows:

a. 10-414-3160 Special Legal Services
b. 10-414-3150 Conflict Prosecution
c. 10-414-3110 Prosecution Attorney
d. 10-414-3100 Professional Services
e. 10-414-2400 Office Supplies

In his request, Petitioner asserted that he was willing to pay a total fee of $250 for the requested records.

On November 6, 2023, Respondent informed Petitioner of the following critical aspects regarding his request:

1.    Because of Respondent’s retention policy, records older than five years had been disposed of and no longer exist;
2.    The estimated total cost for retrieving, compiling, and redacting the requested records from the remaining period (November 6, 2018, to September 1, 2023) was $750. 

Petitioner filed an appeal of the denial to Respondent’s chief administrative officer (“CAO”), who failed to respond to the appeal. Because Utah Code § 63G-2-401(5) provides that a CAO’s failure to respond is equivalent to a denial, Petitioner has now appealed the CAO’s constructive denial to the State Records Committee (“Committee”). 

On May 16, 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

    The Committee is asked to determine whether the assessed fee for the requested records is reasonable.

STATEMENT OF REASONS FOR DECISION

    Under GRAMA, “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)(a). Additionally, when a governmental entity must extract records from a larger source and compile them in a different form, a fee may be assessed. Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist., 1999 UT App 136, ¶26; see also Utah Code § 63G-2-203(2). However, the government “bears the burden of establishing the necessity of ‘compiling’ the records in a manner so as to justify the charging of fees to the public.” Id. at ¶27. And in all cases, “sound public policy requires an agency, prior to compiling records and imposing a fee, to inform the requestor that fees will be assessed and, if so desired, allow the requestor to modify or withdraw the request based on this information.” Id.

    Respondent asks us to take its written statement and rule in its favor. But that endeavor is easier said than done. As Graham gives guiding interpretation of Section 203 and when fees may be properly assessed, we are beholden to follow its guidance. Thus, we are to check the imposed fee against Respondent’s burden to show that (1) the fee is permissible; and (2) the fee is reasonable. Since Respondent desired to rest on its written statement, we rely solely on that and are mindful moving forward that it shoulders the burden of convincing us that Graham’s test is satisfied and the fee is reasonable. Without being present for the Committee’s examination, we are initially curious if the written statement alone can sufficiently demonstrate what it needs to.

    In its written statement, Respondent justifies the $750 fee with the following four points.

1.    Respondent’s accounting clerk had already expended 16 hours on searching and retrieving relevant documents. This effort included compiling information from “different aspects of city operations” and was “time-consuming and complex.”
2.    Respondent estimated that an additional 4 to 6 hours was required to complete the retrieval of all responsive documents. This estimate was based on “a detailed analysis of the remaining records and the specific years involved.”
3.    Following retrieval, “significant staff time is necessary to review the documents and redact any sensitive or protected information.”
4.    The records “must also be formatted and compiled in a manner that makes them accessible and usable to the Appellant, which requires additional staff time.”

The problem is that these four points are largely conclusory and, if we are to do the job Graham requires us to do, we must question these claims. For instance, what is meant by “different aspects of city operations” and why would that be “complex” and “time-consuming”? What was the “detailed analysis of the remaining records,” and how did that determine the time remaining? How “significant” would the staff time be to review the records for possible redactions? That is, how many documents must be reviewed, and, according to the nature of the records, what is the likely amount of redactions for these types of records? And, what justifies the claim that the records “must also be formatted and compiled in a manner that makes them accessible and usable” to Petitioner? Notably, Graham specifically holds that, if the requestor doesn’t specify that the records be delivered in a particular format, then the government bears the burden of proving that, to fill the request, the records must be compiled in a format not regularly maintained. 

    In relying solely on the written statement, we find that Respondent has not met its burden to justify the $750 fee. 

    With that said, we do observe that Petitioner has agreed to pay a fee of $250 for the records and that the records are being extracted from a larger source with need for redaction. Accordingly, we find that $250 is a reasonable fee for all responsive records given the evidence we have to go on. 

ORDER

THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED. The $750 fee is unreasonable and may not be charged to Petitioner. Respondent may assess a fee of $250 as authorized by Petitioner in his initial GRAMA request.

It is so ordered. 

Entered this 24 day of May 2024.

BY THE STATE RECORDS COMMITTEE

     Nancy Dean
Chair, Utah State Records Committee

Committee members Dean, N., Chairperson, Cornwall, M., Biehler, E., Buchanan, M., and Peterson, L. voted unanimously in favor of and joined in this Decision and Order.

Enclosed: Right of Appeal; Penalty Notice

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).

1. Respondent informed the Committee’s executive secretary that it would not be attending the hearing due to a scheduling conflict and that it agreed to rest on its written statement and would allow the hearing to proceed despite its absence. At the hearing, the Committee informed Petitioner that Respondent had waived its right to appear personally at the hearing and that it desired to rest on its written statement. The Committee asked Petitioner how he would like to proceed and he asked to move forward. The Committee then elected to proceed based on Petitioner’s request and Respondent’s waiver.