State Records Committee Appeal Decision 24-68

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BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ADAM HERBETS (Fox 13), Petitioner, v.

SANDY CITY, Respondent,

DECISION AND ORDER

Case No. 24-68

By this appeal, Adam Herbets (“Petitioner”), requests a fee waiver and records allegedly held by Sandy City (“Respondent”).

FACTS

On February 28, 2024, Petitioner submitted a request to Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). He also requested a waiver of any fees assessed for producing the records. Specifically, Petitioner requested:

Copies of all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2019, through March 1, 2025.

Greg Severson
Monica Zoltanski

On February 28, 2024, Respondent wrote back to inquire: “Just to clarify, you want every record regarding calendars and/or appointments for Monica Zoltanski and Greg Severson, not just regarding a specific topic?” Petitioner responded on March 1, 2024, “Correct.”

Respondent pulled the responsive calendars for the time period requested, which amounted to over 30,000 responsive calendar events. On March 6, 2024, Respondent informed Petitioner that the cost to process the record request would be approximately $1,215.64.

Petitioner treated the City’s March 6, 2024, communication as a denial of the fee waiver request and appealed to the Respondent’s Chief Administrative Officer (“CAO”), which resulted in an eventual denial.

Petitioner treated Respondent’s April 11, 2024, communication as a denial of his purported appeal to the Respondent’s CAO and appealed to the State Records Committee (“Committee”). On September 19, 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 fee waiver denial was 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). If the governmental entity must compile the record in a form other than how it is normally maintained, then the entity may charge for “the cost of staff time for search, retrieval, and other direct administrative costs for complying with a request.” Utah Code § 63G-2-203(2)(a)(ii). Fees for such compilation can also include the costs for “extract[ing] materials from a larger document or source” when it is not reasonable to allow the requester to compile the records. Graham v. Davis County Solid Waste Mgm’t and Energy Recovery Special Service Dist., 1999 UT App 136, ¶28. If the information in a record would primarily benefit the public, then the governmental entity may fulfill the record request without a fee “and is encouraged to do so.” Utah Code § 63G-2-203(4)(a). When a governmental entity suspects that fees will exceed $50.00, the entity may require payment of future estimated fees before beginning to process the request. Utah Code § 63G-2-203(8)(a)(i). When we decide disputes over fee waivers, our directive is to determine whether the government’s decision to deny the fee waiver was reasonable. Salt Lake City Corp. v. Jordan River Restoration Network [JRRN], 2018 UT 62, ¶80.

In this matter, Respondent received the request and outlined the tasks needed to process the request. Those tasks included retrieving responsive records by extracting them from a larger database and then converting them to a deliverable format and redacting private information. The lowest-paid employees who could conduct that effort were the subjects of the records themselves since only they could know which calendar entries and appointments were private and which were pertinent to their official duties. The record shows that Respondent informed Petitioner of the fee and made efforts to open a dialogue on how to narrow or modify the request, which would help drive the costs down, but the efforts failed.

Even if we accepted Petitioner’s argument that the information in the requested records primarily benefits the public, GRAMA still permits Respondent to charge a fee for its compilation efforts. See Utah Code § 63G-2-203(4)(b); and Salt Lake City Corp. v. JRRN, ¶83 (holding that the decision to deny the fee waiver was reasonable despite the records primarily benefiting the public). That is, while GRAMA might “encourage” a fee waiver, it doesn’t require it. And in our analysis of determining whether the denial of the fee waiver was reasonable, we are to look beyond Subsection 203(4) and examine any other evidence [we] find relevant to the reasonableness of the entity’s denial.” JRRN, ¶54. As a result, our findings are here nearly identical to those in JRRN: That, despite the public benefit, the time and effort required of the City to fulfill the request, and the extreme breadth of the request, are enough here to support Respondent’s determination. See JRRN, ¶54.

Respondent’s decision to deny the fee waiver was reasonable under the circumstances pursuant to Subsections 203(1) and 203(2)(a). Because Respondent has agreed to disclose the requested records as long as the fee is paid, we express no opinion on the classification or status of the calendars themselves in light of GRAMA’s recent legislative change.

ORDER

THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby DENIED.

Entered this 30 day of September 2024.

BY THE STATE RECORDS COMMITTEE

Marie Cornwall
Chair Pro tem, Utah State Records Committee

Committee members Heidi Stringham, Ed Biehler, Mark Buchanan, Nova Dubovik, and Linda Peterson voted in favor of this Decision and Order.

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).