State Records Committee Appeal Decision 25-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

TOOELE CITY, Petitioner, v.

KEVIN SULLIVAN, Respondent,

DECISION AND ORDER

Case No. 25-01

By this petition, Tooele City (“Petitioner”) seeks a formal order declaring Kevin Sullivan (“Respondent”) a vexatious requester “for the maximum time allowed by law,” including relief from the legal duty to respond further to the 21 Records Requests and other requests (if any) that have been filed and are currently pending with Petitioner. 

ISSUES FOR REVIEW

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

STATEMENT OF REASONS FOR DECISION

    First and foremost, we note that Respondent failed to attend the hearing for this matter, nor did he submit any materials or evidence for us to review. As a result, we are left with no choice but to take and accept Petitioner’s submitted evidence at its face. 
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 as 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;
(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, able to consider the weight of each factor on its own and then decide the cumulative result.

    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 government’s interest in being allowed to restrict access to certain records under the provisions of GRAMA. Utah Code § 63G-2-102(1)-(2). So strong is the individual’s right to access information that the legislature codified it as a “constitutional right.” Id. In doing so, the legislature explicitly stated that its intent for GRAMA was to “promote the public’s right of easy and reasonable access to unrestricted public records,” “prevent abuse of confidentiality by governmental entities by permitting confidential treatment of records only as provided by [GRAMA],” and “favor public access when, in the application of this act, countervailing interests are of equal weight.” Utah Code § 63G-2-102(3)(a), (c), & (e).

    However, an individual’s “constitutional right” to access information is not without its counterbalance. The legislature also codified another constitutional right as applied to the government: “the right of privacy in relation to personal data gathered by governmental entities.” Utah Code § 63G-2-102(1)(b). As it relates to governmental entities, the legislature’s explicit intent was to “specify those conditions under which the public interest in allowing restrictions on access to records may outweigh the public’s interest in access,” and to provide guidelines for disclosure and restrictions on access to records that are based on equitable weighing of interests and also “consistent with nationwide standards of information practices.” Utah Code § 63G-2-102(3)(b), (d). Given these strong legislative declarations for both the public and the government, we take on vexatious requester petitions solemnly, fully aware of the interests at stake.

    II.     Number of Requests
    In the time spanning from December 2023 to August 2024, Respondent filed 21 record requests with Petitioner. That breakdown is as follows:

  • December 2023: One request
  • June 2024: Eighteen requests (on a single day)
  • July 2024: One request
  • August 2024: One request

While nothing in GRAMA indicates the magic number where an ordinary requester’s requests reach the volume that warrants a vexatious label, we find that 21 requests is simply not enough. 

In our previous vexatious requester decisions, we decided cases that dealt with a far larger volume of requests. For instance, in Logan City v. Eames, Decision and Order no. 24-22, Utah State Records Committee (Apr. 29, 2024), the requester had submitted over 100 record requests to the city in 2023, and nearly 20 in the first 4 months of 2024 alone. Id. The evidence also showed that since 2016, the requester had filed over 500 record requests since 2016. Id. Further, the requester would regularly file multiple requests within a short period of time (e.g., 35-40 requests within two days of each other) resulting in an administrative bottleneck in handling the requests. Id.

Also, in Office of State Treasurer v. Eames, Decision and Order no. 23-60, Utah State Records Committee (Nov. 28, 2023), we found the requester vexatious when, among other things, he submitted 43 requests over a period of nine months. We found that for 43 requests, the Treasurer’s Office had to reallocate its existing resources to process and respond to each request. Such efforts in handling the GRAMA requests were in addition to the staff’s regular job duties and caused a substantial burden on the Office’s resources. 

Here, Petitioner concedes that 21 requests are a far cry from 500. Indeed, it’s obviously much closer to the 43 requests we examined in Office of State Treasurer. However, although we respect that 21 requests do impose an administrative burden on Petitioner and its staff, especially when 18 of those were filed on a single day, we don’t view them as significant enough to weigh in favor of Petitioner. Excepting the June 18th requests, Petitioner submitted only 3 record requests over the 9-month period. Additionally, we find it noteworthy that Respondent has not filed a new GRAMA request since August 2024. Clearly, he is concerned only with records concerning cases he is directly connected with and is not seeking more generalized records pertaining to other government business. Accordingly, this factor does not weigh in favor in Petitioner’s request.

    III.     Scope, Nature, and Subject Matter of the Record Requests

    The 21 requests all concerned records related in some way or another to Respondent himself. The events precipitating the record requests were an assault case, a dog bite case, and a disorderly conduct case. The requests largely sought documents and internal correspondences concerning those cases (e.g., correspondences with certain named officers, the Mayor, and prosecutors). We view these types of requests as normal for someone involved in cases and wanting information. Indeed, nothing about the requests themselves seems scandalous, improper, or intended to throw a wrench in the administrative gears of Petitioner’s operations. This evidence also parts ways with our previous vexatious decisions.

    For instance, in Office of the State Treasurer v. Eames (supra), the evidence showed that the respondent’s record requests were made in a “convoluted outline format that reads more like a lengthy statutory scheme than a record request.” Id. The requests were “riddled with acronyms” and difficult to read. Id. They often sought records that were already available publicly through online requests which caused a large waste of administrative time and resources to review the complaints. 

    In Logan City, the requester submitted requests that were broken up into confusing parts and subparts. The requests were unnecessarily lengthy and, especially upon appeals to the chief administrative officer, were overly complicated and unnecessarily burdensome to decipher. Logan City v. Eames (supra). 

    Here, we see no such hallmarks of problematic requests. The nature of the requests seems relatively normal. The scope is reasonably calculated to isolated events to which Respondent was either a party to or otherwise connected with. The subject matter all concerned events and individuals that had a direct connection with events concerning Respondent in one way or another. This also departs from our previous vexatious requester decisions which both involved record requests from a self-proclaimed “government watchdog” whose requests were an attempt to discover potential governmental improprieties. With such requests, the respondent showed no evidence in his defense that he had any actual or indirect knowledge that any improprieties in fact existed. His numerous convoluted requests were more of a fishing expedition that bogged down the government offices. Whereas in this case, with the requests being relating solely to events and issues that Respondent has a personal interest in, we find the requests themselves to be without significant concern.

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

    Petitioner has submitted ample evidence that demonstrates troublesome communications from Respondent to Petitioner. These communications occurred in various mediums, such as in-person meetings, phone calls, and in writing. The subject matter of the communications spanned from complaints on how his case and various issues were handled to demands that certain employees and officers be terminated. Respondent even filed a complaint against Petitioner’s attorney with the Utah State Bar. Attached to Petitioner’s complaint are notarized affidavits from nine of Petitioner’s employees all attesting to either the hostile interactions they witnessed from Respondent, or the aggressiveness they received from him directly. Those interactions include demands to city officials that certain named personnel be terminated from their employment, and even a complaint filed with the Utah State Bar against Petitioner’s attorney. 
    Importantly, our brief description above of the hostility Respondent directed toward Petitioner is only a general synopsis. We acknowledge that the evidence Petitioner submitted to us in thorough and overwhelming, all showing that Respondent is cantankerous with Petitioner at best and unnecessarily belligerent and aggressive at worst. 

In our previous vexatious decisions, we reviewed conduct that exhibited rudeness and even demands that employees be terminated, but the evidence in this case illustrates an even more truculent requester. We therefore find that Respondent’s continual harassment of Petitioner’s employees constitutes an abuse of the right to information under GRAMA. Accordingly, this factor is heavily weighted in Petitioner’s favor.

    V.    Other Relevant Factors

    Another significant issue this Committee sees as favorable to Petitioner is how Respondent’s conduct has given Petitioner a reasonable concern for the physical safety of its employees. We’ve already addressed how we view “alarming and potentially dangerous” fixations on government employees as extremely troublesome. Logan City v. Eames (supra). And the evidence supplied here supports that employee safety is of reasonable concern. 

    For instance, some of Petitioner’s documented hostilities include:

  • Screaming profanities at the other party in his assault case in front of witnesses and children while begging for a fight.
  • Explaining to a witness of the accident with Mr. Garrett, “Mother fucker is lucky I was not carrying my gun. He’d be dead.”
  • Directing loud profanities and belittling language at Petitioner’s legal secretary, Kailee Benson, which left her feeling abused and afraid for her safety.
  • Aggressive demands that the following city employees be fired: Lt. Benson, Kailee Benson, Sgt. Mableson, Officer Sharp, Officer Johnson, and Attorney Derrick Larson (by implication).

From these actions and the abusive tone of other correspondences Respondent had with other city employees, we find that Petitioner’s employees’ concerns were reasonable. We find the behavior problematic as it created an ever-present cloud of concern over city workers in responding to the GRAMA requests and dealing with Respondent concerning them. Consequently, these facts weigh for Petitioner. 
     
CONCLUSION

    The primary purpose of Section 209 is to relieve governmental entities of the duty to respond to public record requests of vexatious requesters. Thus, Section 209 is most meaningful when the requester shows a pattern of submitting voluminous requests that abuse the GRAMA process and unnecessarily burden the governmental entity. In this case, however, we don’t see a strong pattern of that behavior. With the exception of the June 18th record requests, Respondent has submitted only 3 requests in a period of 9 months, with no requests since August 2024. Instead, we see a different pattern, one of unnecessary hostility and abuse toward Petitioner’s employees. This pattern creates a different burden on the governmental entity that can affect its efficiencies and procedures in filling record requests. Therefore, upon examining the totality of the circumstances and reviewing the evidence before us, we find that Respondent is indeed vexatious. 

    However, we find that the limited record requests over 9 months and the recent lack thereof mitigates our determination of how long Petitioner should be relieved of its responsive duties. We agree that Petitioner and its employees need some measure of assurance that it can proceed with its operations free of concern for any future record requests from Respondent because of the interactions with him that come with those requests. Consequently, in light of the forgoing facts and analysis, we conclude that Petitioner is relieved of its duty to respond to Respondent’s record requests for a period of 6 months from the date of this order. This includes the pending requests Petitioner has received from Respondent but not yet filled.

ORDER

In accordance with this Decision, the petition is hereby GRANTED. Petitioner has no legal obligation to respond to any record requests submitted by Respondent for 6 months from the date of this order, including currently pending requests. 
It is so ordered. 

Entered this 28 day of January 2025.

BY THE STATE RECORDS COMMITTEE


 
Kenneth Williams
Chair Pro Tem, Utah State Records Committee


Committee members, Williams, K., chair pro tem, Peterson, L., Wilde, L., Sheeran, T., and Marshall, J. voted in favor of and joined in this Decision and Order.

Committee member Biehler, E. voted in opposition.


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. Utah Code § 63G-2-404(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).