State Records Committee Appeal Decision 24-62

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

IAN COOPERSTEIN, Petitioner, v.

UNIVERSITY OF UTAH, Respondent,

DECISION AND ORDER

Case No. 24-62

By this appeal, Ian Cooperstein (“Petitioner”), requests records allegedly held by University of Utah (“Respondent”). 

FACTS

To date, Petitioner has submitted more than 200 record requests to the University under the Government Records Access and Management Act “GRAMA”), 90% of which were submitted in 2020. He submitted 114 of those requests in a span of less than three days. When the Respondent received the 114 requests in July of 2020, it communicated to Petitioner that it was experiencing extraordinary circumstances and couldn’t fill them within the 10 days prescribed by GRAMA. The Respondent further explained to Petitioner that it anticipated that responding to all of his requests would take more than a year. In response to the University’s communication, Petitioner appealed the estimated time to respond to his requests and the Respondent’s chief administrative officer denied the appeal. 

Afterward, the parties agreed to mediate regarding the processing of his requests. The mediation resulted in Petitioner creating a list where he prioritized the order in which the Respondent would process his requests, consecutively one after another instead of their submission (“Prioritization Agreement”). In filling some of these requests, the Respondent assessed fees which Petitioner either paid and then canceled the payment or never paid at all. From there, the relations between the parties further eroded, resulting in the Respondent appealing to declare Petitioner a vexatious requester, and Petitioner filing his own appeal seeking our review of the outstanding record requests. 

On August 15, 2024, the Committee held a hearing on Petitioner’s appeal 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 the propriety of the Respondent’s responsiveness to the pending requests.

STATEMENT OF REASONS FOR DECISION

    When a governmental entity receives a request for records, it has 10 business days to either approve the request and produce the record, deny the request, or inform the requester that because of extraordinary circumstances it cannot fill the request at the time. Utah Code § 63G-2-204(4)(b)(i)-(iv). If extraordinary circumstances do exist, the governmental entity must include in its response (a) a description of the circumstances that constitute the extraordinary circumstances; and (b) the date when the records will be available. Utah Code § 63G-2-204(4)(b)(iv)(A)-(B). Under Subsection 204(6), GRAMA prescribes what may be considered an extraordinary circumstance, among that list, and pertinent to this appeal, are when “the request is for a voluminous quantity of records . . . containing a substantial number of records,” “the requester seeks a substantial number of records . . . within five working days of each other,” and when “the governmental entity is currently processing a large number of record requests.” Utah Code § 63G-2-204(6)(c)-(d).

    Additionally, in processing a request, GRAMA allows a governmental entity to charge a reasonable fee for records when the request requires the entity to “compile a record in a form other than that normally maintained by the governmental entity.” Utah Code § 63G-2-203(2)(a). If a fee isn’t paid, a governmental entity may then require payment of the back-owing fee before beginning to process a future request. Utah Code § 63G-2-203(8)(a)(ii).

    In looking at the evidence and hearing the testimony, it’s apparent that there is a misunderstanding of the Prioritization Agreement between the parties. Petitioner seems to have understood that the prioritized records would be released according to a set schedule, whereas the Respondent understands their duty is to provide timely updates and notices as they worked to process the requests. Moreover, Petitioner expected communications via direct emails whereas Respondent provided required notices through the records portal. Since the agreement was not made available for review, we direct the parties to review the agreement to ensure the parties are in agreement, and we advise Petitioner to regularly check the records portal for communications and updates from the University concerning his request. 

    We find it concerning that the Respondent cites “extraordinary circumstances” to delay processing a record request and the result is delaying the records’ production for several years. While we’re sympathetic to the Respondent being burdened with a substantial number of requests to fill, we are skeptical at the apparent inefficiency at not even filling half of the requests in a four-year period. With that degree of backlog occurring, it seems that as much as the problem is a large number of requests, it’s also an operational problem that needs to be adequately addressed and remedied. GRAMA was intended to “promote the easy and reasonable access” to public records, and a governmental entity should reasonably be prepared for large amounts of record requests from time to time. For an individual to have to wait several years for requests to be filled is anything but easy and reasonable.

    With that said, we find Petitioner has his own responsibility in ensuring delivery of the records he seeks. As there are outstanding fees and payments he’s voided after submission, the Respondent has the right to withhold records until those fees are paid and his account for records already received is brought current. 

    With that said, we address the parties’ situation moving forward. We remind the Respondent that as much as it has the right to charge fees for having to compile responsive records in a form other than how they are normally maintained, the fee must still be reasonable and in accordance with the instructive guidance set forth in Graham v. Davis County Solid Waste Mngm’t and Energy Recovery Special Service Dist., 1999 UT App 136. In that case, the Court held that “sound public policy requires an agency, prior to compiling records and imposing a fee, 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. ¶27. Additionally, Graham also makes clear that the burden is on the governmental entity to show that the records had to be compiled in an irregular form. Id. ¶¶26-28. If Petitioner believes a fee is improper under Section 203 and Graham, he may appeal for our review.

    In conclusion, we find that, with the Respondent keeping in accordance with Graham, and Petitioner paying the appropriate fees and regularly checking the portal for communicative updates concerning the requested records, the Respondent shall continue processing the requests as quickly as possible so as to effectuate GRAMA’s intent. 

ORDER

THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED. The Respondent shall work diligently to quickly deliver the responsive records provided that Petitioner pay the back-owing fees and all proper fees moving forward. 

It is so ordered.

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).