State Records Committee Appeal Decision 24-61

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

UNIVERSITY OF UTAH, Petitioner, v.

IAN COOPERSTEIN, Respondent,

DECISION AND ORDER

Case No. 24-61

By this petition, the University of Utah (the “University”) seeks a formal order declaring Ian Cooperstein (“Cooperstein”) a vexatious requester for a 12-month period.

ISSUES FOR REVIEW

    We must determine whether Cooperstein is a vexatious requester under Section 63G-2-209, and, if so, the proper amount of time which the University may be relieved from responding to his record requests.

STATEMENT OF REASONS FOR DECISION

    Utah Code § 63G-2-209 grants the Utah State Records Committee (“Committee”) the authority to declare an individual a “vexatious requester” and grant relief to a governmental entity from having to respond to the individual’s record requests for a period of time that may not exceed one year. Utah Code § 63G-2-209(8)(b). In determining whether an individual is a vexatious requester, this Committee must consider the following factors prescribed by statute:
(a)    the interests described in Section 63G-2-102;
(b)    as applicable:
(i)    the number of requests the individual has submitted to the governmental entity, including the number of pending requests;
(ii)    the scope, nature, content, language, and subject matter of record requests the individual has submitted to the governmental entity;
(iii)    the name, content, language, and subject matter of any communications to the governmental entity related to a record request;
(iv)    Any pattern of conduct that the committee determines to constitute:
(A)    an abuse of the right of access to information under GRAMA; or
(B)    substantial interference with the governmental entity’s operations; and
(c)    any other factor the Committee considers relevant.

Utah Code § 63G-2-209(9)(a)-(c). When we examine these factors, we keep in mind that the governmental entity need not prove each individual factor. Rather, the evidentiary burden on the government is to prove through a totality of the circumstances that the individual is a vexatious requester. Utah Administrative Rule R35-1-3(2). This means that we focus on the factors listed in Subsection 209(9) in the aggregate. Thus, we look at each of the statutory factors individually but consider their total weight in light of the relevant facts and circumstances giving rise to the petition before us.

    I.     The Interests Described in 63G-2-102

    The interests outlined in Section 102 are an individual’s right to access information concerning the public business, and the public policy interest in allowing government to restrict access to certain records. Utah Code § 63G-2-102(1) & (3). In essence, the legislature intended to balance the public’s right of “easy and reasonable access” to public records with allowing restrictions on records where the policies support restricting access. Utah Code § 63G-2-102(3)(a)-(b).

    The University has been responding to Cooperstein’s for several years, long before GRAMA’s Section 209 was enacted. The requests stem from Cooperstein’s desire for records that are related in one way or another to him and his employment termination from the University. GRAMA seeks to protect governmental employee records by classifying them as private under Section 302. However, because Cooperstein is the subject of the records, he is entitled to them under Subsection 63G-2-202(1)(a)(i), which allows the subject of the record the right to obtain records classified as private. If the records were properly classified as controlled under Section 304 or protected under Section 305, Cooperstein would not be entitled to them since being the subject of protected and controlled records has no bearing on whether controlled and protected records may be released to the requester. See generally Utah Code § 63G-2-202(2) & (4). Consequently, because Cooperstein is the subject of the records he’s sought, his right to reasonable and easy access to the records prevails over the public policies supporting the University’s right to restrict access.

    II.     Number of the Requests

     Cooperstein has submitted over 200 GRAMA requests to the University. However, the vast majority of these were submitted between 2 – 4 years ago, and he has not submitted a new request in almost a year. The University claims that embedded within those 200 requests he has submitted “many additional and duplicative requests.” University’s Petition at 3. The University also argues that GRAMA “requires the Committee to consider the number of pending requests” in our analysis, which, according to the University still hovers above 130. 

    But the University’s position is fixed on requests and events that occurred prior to the enactment of Section 209. It is well settled that newly created statutes do not apply retroactively; and therefore, the “parties’ substantive rights and liabilities are determined by the law in place at the time” when the procedural action arises. Waddoups v. Noorda, 2013 UT 64, ¶6. The exception to this rule is when “the [statutory] provision is expressly declared to be retroactive.” Utah Code § 68-3-3. This, of course, makes sense since individuals must be able to rely on the laws that are in effect at the time of their actions without worry that a future law could reach back and penalize them for what was legal at the time. Since nothing in Section 209 indicates that it may be applied to individuals who might have abused GRAMA years ago, we find that this factor cannot be weighed against Cooperstein today.

    To be clear, we think that an individual who submits hundreds of requests over a short period of time may warrant consideration under Section 209, but not in this case. Had Cooperstein filed his numerous requests since Section 209 was enacted, we might come to a different conclusion and be more sympathetic to the University’s argument on this point. However, the law on statutory retroactivity is clear and well-settled. Therefore, the requests Cooperstein made prior to the statute’s enactment cannot be weighed against him, and we find the University’s argument unpersuasive on this point.

    III.     Scope, Nature, Content, Language, and Subject Matter of the Requests

    The next factor we are to consider is the scope and nature of the requests. The University’s argument primarily centers on how Cooperstein has created a “false narrative about the termination of his employment.” Id. at 4. As a result, the University argues, he “incorrectly asserts that records exist based solely on his erroneous beliefs,” and the “flawed information [Cooperstein] regularly provides in his requests often requires substantial additional effort by the University.” Id. Ultimately, the University argues that because of this, there is a large amount of time spent trying to decipher what it is Cooperstein actually wants. Id. 

    Nowhere in GRAMA does it state that a person’s perception of events must be correct in order to obtain access to records. In fact, GRAMA is also silent on the importance or relevance of a requester’s motivation behind the record request. Thus, even if Cooperstein has created a false narrative surrounding his employment termination, and even if his perceptions of the events were entirely incorrect, we fail to see how that would weigh against him in his right to seek records, especially records in which he is the subject. True as it may be that his requests are difficult to understand, it doesn’t follow that such requests are a sure sign of a vexatious requester. 

    As for the language of the requests, we do see some degree of concern. At times, the requests are unnecessarily lengthy with some containing strong language. However, we note that the problematic language may in part be due to Cooperstein’s frustration with how the University has handled his record requests over the years. What may have started four years ago as an initial attempt to explain his motivation for and attempt to obtain certain records has, over time, morphed into a 4-year backlog of unfilled record requests which has angered Cooperstein. 

In considering these facts, we don’t consider Cooperstein’s motivations or “false narratives” critical to a Section 209 analysis. Indeed, we find the language of some of the requests to be of some concern but not enough to overshadow the fact that, though lengthy and reflecting an alleged “false narrative,” the nature, scope, and subject matter of his requests do not rise to the level of abusing the right to public records.

    IV.    Nature, Content, Language, and Subject Matter of Communications

    The University has presented sufficient evidence to show that Cooperstein’s communications with its staff is at times unnecessarily hostile and unprofessional. While Cooperstein’s frustrations in having his requests be delayed for years is certainly understandable, that does not justify the personal attacks inserted in his communications. 

    “GRAMA does not contemplate adversarial combat over record requests.” Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25. Although the Supreme Court’s statement in Deseret News was contextually in application to the governmental entity’s handling of record requests, we think it applies just as evenly to the requester and how he treats the entity. Here, even though the requests pre-date Section 209’s enactment, Cooperstein has had communications with the University since 209 became law that defy the directive in Deseret News. Accordingly, we find that this factor weighs for the University.

V.    Patterns of Conduct that Constitute an Abuse of GRAMA or Substantial Interference with the Entity’s Operations

    For this factor, the University essentially argues that Cooperstein has abused his right of access to information and created substantial interference with its operations by frivolously appealing the denials and responses he receives in relation to his numerous record requests. For instance, among several examples the University points out, is that over the years, Cooperstein was dissatisfied with a number of the University’s determinations that the records he sought didn’t exist. He then appealed to the State Records Committee where, on numerous occasions, we ruled against him. The University claims that because these continuous appeals are denied at each step of the administrative process, and because we ruled in their favor, Cooperstein’s many appeals have been and are obviously meritless and do nothing but interfere with their operations. 

    But even if his appeals were meritless, may we punish an individual for exercising their right to appeal? We think not. Under GRAMA, each and every final decision on a record request—from the initial denial, to the chief administrative officer’s decision, to our decision—informs the requester of the right to appeal to a higher decision maker. See Utah Code §§ 63G-2-205(2)(c); -401(1)(a); -402(1)(a); -403(12)(c).  The right to appeal an administrative GRAMA decision is the check and balance on government control and record access determinations. Penalizing a citizen for appealing adverse decisions on a right to information is a concerning request even if the appeal lacks sufficient evidence of records’ existence. 

    In this case, again, most of the appeals to this point have occurred prior to the enactment of Section 209. However, some appeals have since occurred. And while it’s true that Cooperstein has lost a number of appeals before us, the University fails to acknowledge that he has also prevailed in several. Consequently, we decline the University’s request to look only at the appeals he’s lost and make a blanket statement that because those appeals were without merit, Cooperstein has abused the GRAMA process. Because the law permits GRAMA appeals at each administrative decision, and because Cooperstein has prevailed in multiple cases before us contradicts the University’s position. Thus, this factor does not weigh in favor of the University.

CONCLUSION

    In examining the statutory factors in their totality and weighing the respective evidence, we find that the University has not met its burden; that although Cooperstein’s patterns of behavior might have been considered vexatious prior to Section 209’s enactment, they don’t now. 

    We take a moment to publicly voice our displeasure at the communications he has had with the University and give him a strong reminder to not engage in combat in the GRAMA process. But we also remind the University that his frustrations in having to wait over four years for records is understandable and that the University should focus more time on improving its systems to more efficiently handle requests than working to prohibit a citizen who’s frustrated with its inefficiency from receiving the records he has a right to receive.
 
ORDER

THEREFORE, in accordance with this Decision, the petition is DENIED.

Entered this 26 day of August 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., Dubovik, N., and Peterson, L. unanimously voted 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).