State Records Committee Appeal Decision 25-24

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PHILIP LYMAN, Petitioner, v.

LIEUTENANT GOVERNOR’S OFFICE, Respondent,

DECISION AND ORDER

Case No. 25-24

By this appeal, Petitioner, Philip Lyman, seeks a fee waiver and access to records held by Respondent, the Lieutenant Governor’s Office (“LGO”). 

FACTS

On July 20, 2024, Mr. Lyman submitted a request to the LGO Respondent for records pursuant to the Government Records Access and Management Act (“GRAMA”).  Specifically, Mr. Lyman requested “all/every communication including texts, emails, memos, attachments, and electronic meeting invites” received by and sent from Deidre Henderson, Lieutenant Governor for the State of Utah (“Lieutenant Governor”) to sixteen specific individuals.  Mr. Lyman requested paper copies of the requested records and authorized costs up to $500.00.  

 In an email dated July 26, 2024, Collin Tanner, Public Records Specialist for the LGO, stated that “it is apparent that you are seeking a potentially voluminous quantity of records.”  Mr. Tanner also stated that Mr. Lyman’s records request did not provide searchable keywords or a date range.  Mr. Tanner further stated that if Mr. Lyman did not choose to modify his request, “it will be considered denied.”

On July 28, 2024, Mr. Lyman responded to Mr. Tanner’s suggestion to modify his request by specifying the search period to be between July 1, 2023 and July 27, 2024, and also identified 111 search terms.  Mr. Tanner sent an email response to Mr. Lyman on July 29, 2024, stating that the new date range and search terms resulted in “approximately 4,000 unique email threads” which would result in a fee of $5,300.00 for approximately 130 hours of time.  Mr. Tanner asserted that this amount would need to be paid prior to the LGO fulfilling the records request.  When Mr. Lyman requested a fee waiver request, Mr. Lyman’s request was denied by Mr. Tanner.

Mr. Lyman thereafter appealed the fee waiver denial to Mallory Underwood, Office Administrator for the LGO.  Ms. Underwood upheld the fee waiver denial in an email dated July 31, 2024, stating “our office’s initial decision still stands.”  Ms. Underwood encouraged Mr. Lyman to “reduce any fees by reducing the amount of sought keywords in the request.”  Ms. Underwood then stated that Mr. Lyman as “the requester…has the right to appeal this decision” to either the “State Records Committee or district court as provided” in Utah Code § 63G-2-402.

On August 8, 2024, Mr. Lyman filed an appeal with the State Records Committee (“Committee”).  On March 20, 2025, the Committee held a public hearing during which the parties presented evidence and arguments to the Committee.  After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1.    GRAMA specifies that a governmental entity “may fulfill a record request without charge” and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Utah Code § 63G-2-202(1) or -202(2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).  A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2-203(6)(a). 

2.    The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2-203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189.  Additionally, the adjudicative body has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b)(ii).

3.    In the present case, the LGO argued that Mr. Lyman failed to specifically articulate how the requested records would benefit the general public other than general allegations of public benefit.  The LGO claimed that it “properly exercised its discretion to deny [Mr. Lyman] a fee waiver based on consideration of the factors laid out in GRAMA and controlling case law, as well as the LGO’s Records Management Policy for GRAM Fee Waiver Requests.”

4.    After having considered all the arguments presented by both parties, the Committee finds that the LGO’s decision to deny Mr. Lyman’s request for a fee waiver denial was not an unreasonable denial of a fee waiver pursuant to Utah Code § 63G-2-203(4).  A careful review of the written evidence submitted to the Committee, fails to show Mr. Lyman claiming with his records request to the LGO that he would be entitled to a fee waiver based upon any of the factors found in Utah Code § 63G-2-203(4)(a-c).  Accordingly, the Committee finds that the LGO’s decision to deny Mr. Lyman’s request for a fee waiver was not an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4).

5.    Additionally, Utah Code § 63G-2-704 was added to GRAMA by Senate Bill 231, the “Government Records Access and Management Act Amendments”, during the Utah Legislature’s 2023 General Session.  Utah Code § 63G-2-704(2)(a)(i) states that the “lieutenant governor, and the office of the lieutenant governor are not subject to” Utah Code § 63G-2-203.  The Lieutenant Governor shall establish policies to handle requests for “classification, designation, fees, access, denials, segregation, appeals to the chief administrative officer, management, retention, and amendment of records.” Utah Code § 63G-2-704(3)(a)(i).

6.    The LGO adopted on May 3, 2023, the “Office of the Lieutenant Governor of Utah, Records Management Policy” (“LGRMP”), which states that a records officer “may grant a fee waiver request only as provided in this section.” LGRMP § G-302(1).  A records officer may partially or fully grant a fee waiver request and waive some or all of a response fee “only if the requester demonstrates to the satisfaction of the records officer that”: (1) In light of all applicable circumstances, requiring the requester to pay the response fee would place an exceptional burden on the requester; (2) The benefit to the Utah public derived from responding to the record request and providing access to the requested records without payment of the response fee substantially outweighs the interest in recovering the response fee to cover some of the cost to the public of the LGO responding to the record request; or (3) there are significant circumstances justifying a waiver. LGRMP § G-302(5)(a-c).

7.    A denial of a fee waiver request is not a record access denial. LGRMP § G-302(7).  Unless overridden by the chief administrative officer as provided in LGRMP § G-302(9), “a records officer’s denial of a fee waiver request stands and is final.” LGRMP § G-302(8).  The denial by the chief administrative officer to affirmatively decline the fee waiver request “stands and is final.” LGRMP § G-302(9)(d)(i).  According to the LGRMP, only a record request access denial may be appealed to the State Records Committee. LGRMP § G-402(4).

8.    Although Ms. Underwood’s denial of Mr. Lyman’s request for a fee waiver stated that Mr. Lyman had a right to appeal her decision to either the “State Records Committee or district court as provided in § 63G-2-402”, a review of the applicable provisions of the Office of the Lieutenant Governor of Utah, Records Management Policy as allowed by Utah Code § 63G-2-704(3)(a)(i), shows that Mr. Lyman did not have a right to an appeal to either the Committee or District Court.  In fact, based upon the plain language of Utah Code § 63G-2-704 (2)(a)(i), it is questionable whether this Committee or a District Court has jurisdiction over an appeal from the Chief Administrative Officer for the LGO because the “lieutenant governor, and the office of the lieutenant governor are not subject to” Utah Code § 63G-2-203. See also, Orten v. Salt Lake Cty., State Records Case No. 22-12 (June 21, 2024, remand order), ¶¶ 1-3.  If the LGO is not subject to Utah Code § 63G-2-203 pursuant to Utah Code § 63G-2-704(2)(a)(i), it logically follows that a records requestor cannot claim appeal rights pursuant to Utah Code § 63G-2-203 from a decision by the LGO to deny a fee waiver request.

9.    Accordingly, the Committee finds that the LGO’s decision to deny Mr. Lyman’s request for a fee waiver denial was not an unreasonable denial of a fee waiver pursuant to Utah Code § 63G-2-203(4).  The Committee also finds that pursuant to Utah Code § 63G-2-704, that the decision of the Chief Administrative Officer for the LGO should be upheld and not reversed.
    
ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Phil Lyman, is hereby DENIED.

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 pursuant to Utah Code § 63G-2-404(1)(a) subject to the exceptions provided in Utah Code §63G-2-404(1)(b). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure 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 a party’s 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).

Entered this 31 day of March 2025.

BY THE STATE RECORDS COMMITTEE
 
TODD SHEERAN
Chair pro temp, Utah State Records Committee