State Records Committee Appeal Decision 24-44
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
RYAN MILLER, Petitioner, v.
UNIVERSITY OF UTAH, Respondent,
DECISION AND ORDER
Case No. 24-44
By this appeal, Ryan Miller (“Petitioner”), requests records allegedly held by the University of Utah (“Respondent”).
FACTS
After filing a complaint with the Respondent concerning an alleged failure of student safeguards he witnessed and experienced, Petitioner grew frustrated at being unable to obtain information about the investigation. On August 24, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested “all records pertaining to this investigation.” In his request, Petitioner also asked eleven questions to the Respondent in which he hoped records could answer.
On October 20, 2023, the University provided the Petitioner access to “a written report and findings” and explained that, due to extraordinary circumstances, it needed more time to process the remainder of his request. Petitioner appealed the University’s need to extend the response time to the Respondent’s chief administrative officer (“CAO”). The CAO responded on February 7, 2024, denying Petitioner’s appeal and indicating that the “University has responded to a substantial portion of your request to include providing the final report.” Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”).
During the pendency of the appeal, the Respondent continued to work diligently on the Petitioner’s broad request, providing records in batches with the first set of records being delivered on May 3, 2024, and the final batch being provided on June 3, 2024. According to the Respondent, by June 3rd, it had delivered all responsive records.
On June 20, 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 Respondent performed a reasonable search for responsive records.
STATEMENT OF REASONS FOR DECISION
Under GRAMA, “a 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, . . .” Utah Code § 63G-2-201(1)(a). In response to a record request, a governmental entity “shall conduct a reasonable search for a requested record.” Utah Code § 63G-2-201(7)(b). In cases where the requester challenges whether all responsive records have been disclosed, the governmental entity must show “by a preponderance of the evidence that its search for the requested records was reasonable.” Utah Administrative Rules R35-1-3(1)(a). If the governmental entity preponderates such a showing, then the burden shifts to the requester who must show “by a preponderance of the evidence that the search efforts were not reasonable.” Utah Administrative Rules R35-1-3(1)(b).
At the hearing, it became clear that Petitioner’s expectations on this matter were frustrated by his understandable lack of knowledge about GRAMA. His frustration appeared to be sourced in the Respondent’s continual delays to provide records along with the record production itself. Petitioner received only some of the records he sought, not understanding why others were withheld and what exactly those withheld records were.
We sympathize with Petitioner. The Respondent’s processes in responding to his GRAMA request resulted in a delay of approximately 200 days before Petitioner received his records. This of course severely overshoots GRAMA’s timeframe of 10 business days to produce a record. See Utah Code § 63G-2-204(4)(b). It also seems to exceed the reasonableness deadlines found in Utah Code § 63G-2-204(7) that warrant a delay due to “extraordinary circumstances,” which we give no opinion on whether the Respondent’s delay was due to the extraordinary circumstances Section 204 contemplates. See Utah Code § 63G-2-204(6). And certainly a 200-day response time with numerous delays and extensions cuts squarely against GRAMA’s explicit policy to “promote the public’s right of easy and reasonable access to unrestricted public records.” Utah Code § 63G-2-102(3)(a). Unfortunately, however, we are powerless to help the public right the wrongs that governmental entities may commit under GRAMA. We note that Petitioner is not alone in his frustration as his complaints about the Respondent’s GRAMA violations echo similar complaints made by other requesters against the governmental entities in their cases. But our power to fine a governmental entity is designated only for noncompliance with our orders. The legislature has not created a way to enforce GRAMA beyond that. Consequently, the public is at the mercy of the governmental entities and must endure potential non-compliance conduct until we are given the tools necessary to enforce the requirements GRAMA imposes.
Because we cannot effectively address the main thrust of Petitioner’s complaint, we turn our focus to whether the Respondent fulfilled its duty in responding to the request at all, and we find that it did.
At the hearing, the Respondent’s record officer testified that in processing the request, she and her colleagues sought out the records that Petitioner specifically requested, including emails, communications, documents, and the final report concerning the investigation. They asked each relevant department to review the request themselves and determine if there were responsive documents that could be produced. She further testified that she did her best to interpret the request broadly enough to ascertain the records he sought.
Given the records officer’s testimony in conjunction with the fact that responsive records were ultimately produced and some were classified in a way to be withheld, we’re satisfied that the Respondent’s search efforts were reasonable.
From there, the burden shifts back to Petitioner to show that the search efforts were not reasonable, a showing he hasn’t made. As a result, we find that the Respondent performed a reasonable search and, by disclosing the responsive records that it did, has satisfied its duty to Petitioner.
In conclusion, we note that as Petitioner now better understands the distinction between record production and restriction, he may still appeal the classifications of those records that were withheld if he desires to challenge the validity behind why the Respondent restricted access to some of the records he seeks. We also encourage the Respondent to proactively seek clarification on confusing record requests rather than rely on its own devices to interpret what may be difficult to understand. We believe that, although there is no duty in GRAMA to do so, cooperative collaboration will not only better effectuate GRAMA’s core policies, but it will also make processing record requests more efficient and cost-effective for governmental entities than to go through a cumbersome appeals process. See Utah Code § 63G-2-102; and cf Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25 (“GRAMA does not contemplate adversarial combat over record requests.”).
ORDER
THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.
Entered this 1st day of July 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, Pro Tem, Utah State Records Committee
Committee members Cornwall, M., Chair Pro Tem, Williams, K., Biehler, E., Buchanan, M., and Peterson, L. voted unanimously in favor of and joined in this Decision and Order.
enclosed: Right to 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).