State Records Committee Appeal Decision 25-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ADAM HERBETS (Fox 13), Petitioner, v.

VANGUARD ACADEMY, Respondent,

DECISION AND ORDER

Case No. 25-07

By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Vanguard Academy (“Respondent”). 

FACTS

On February 20, 2024, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested “copies of all records showing the disclosure of family relationships as required by Vanguard Academy’s charter agreement.” 

Respondent assessed a $48.75 fee to produce the records and, once paid, delivered responsive records that pertained to the 2022-23 school year. Respondent also instructed Petitioner to inform them “right away if you want Vanguard to search for disclosures for earlier school years.” Petitioner then responded by explaining that he didn’t realize the records would be different each year and then asked a series of questions that related to the cost in relation to the revelation that the records are ever-changing. When his email went unanswered, Petitioner treated the overall response and delivery of the 2022-23 records as a partial denial since he expected more replete records, and he appealed to Respondent’s chief administrative officer (“CAO”).

In his response, the CAO said that “Vanguard did not deny your request, in whole or part. Vanguard provided responsive disclosures for the last school year for which you were charged (and paid) $48.75. Additionally, you were informed that searching for earlier years would take time and be costly and asked you to confirm whether you wanted Vanguard to conduct those searches. In response, you asked a number of questions but did not state whether you wanted Vanguard to conduct the earlier searches.” Notwithstanding that position, the CAO went on to inform Petitioner that another reasonable search was performed and he was supplementing the response with additional documents.

Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On January 16, 2025, 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 a reasonable search was performed for the 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 request for public records, “[a] governmental entity shall conduct a reasonable search for a requested record.” Utah Code § 63G-2-201(7)(b). When determining whether the governmental entity possess or maintains the requested records, “the governmental entity must show by a preponderance of the evidence that its search for the requested records was reasonable.” Utah Administrative Rule R35-1-3(1)(a). If the government makes such a showing, the burden then shifts to the requester “who must show by a preponderance of the evidence that the search efforts were not reasonable.” Utah Administrative Rule R35-1-3(1)(b).

    Petitioner questions if he isn’t getting the full scope of records that he requested due to a dispute over the fee that he was charged for the records he did receive, or if the records just don’t exist. Respondent claims that during the appeal to the CAO, it performed a search for all responsive records regardless of the year and produced whatever additional responsive records it had.

    During the hearing, Respondent testified that the record officer got the disclosure statements for the 2022-23 school year and then notified Petitioner that the records were available for a fee. From there, an additional search for prior years was conducted that consisted of staff searching through all paper records they had stored and then searching Respondent’s Google Drive through all electronic records. The additional search yielded more responsive records dating back to 2019, which were produced and delivered to Petitioner. Respondent has confirmed that through a search of both hard copy records and electronic files all responsive records found have been delivered. 

    We believe that a thorough search through both the paper and electronic records is sufficiently reasonable. Whether or not requested records exist is not the issue in these types of cases, nor is the issue whether a perfect search was conducted where there is no reasonable doubt that additional records don’t exist. See Trejos v. Weber County, Decision and Order no. 24-55, Utah State Records Committee (July 20, 2024) (“In an appeal concerning the existence of records, the issue is not whether the records exist, nor is it that the governmental entity performed a perfect search.”). Instead, the law requires only that the search was reasonable, and the entity shoulders that burden. Respondent has demonstrated that, although it charged a fee for only the 2022-23 records, it voluntarily performed an additional search and produced additional documents at no charge to Petitioner. In response, Petitioner has offered no evidence to show that searching through the hard copy and Google Drive records was not a reasonable search. Accordingly, we find that Respondent has satisfied its obligations.

ORDER

In accordance with our Decision, Petitioner’s appeal is hereby DENIED 

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, Biehler, E., Peterson, L., Wilde, L., Marshall, J., and Sheeran T., 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. 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).