State Records Committee Appeal Decision 2017-17
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
PAUL AMANN, Petitioner, v.
UTAH ATTORNEY GENERAL’S OFFICE, Respondent.
DECISION AND ORDER
Case No. 17-17
By this appeal, Petitioner Paul Amann, seeks access to records held by Respondent, the Utah Attorney General’s Office (“AG’s Office”).
On February 27, 2017, Mr. Amann sent an email to the AG’s Office requesting records pursuant to the Utah Government Records Access and Management Act (“GRAMA”). On March 20, 2017, Mr. Amann sent an email to Attorney General Sean Reyes’ office email account which included an email attachment titled “GRAMA appeal to Reyes.pdf.” On March 31, 2017, Mr. Amann filed an appeal with the State Records Committee (“Committee”). Subsequent to the appeal being filed with the Committee, the AG’s Office’s Government Records Counsel Lonny Pehrson sent an email on April 3, 2017, to Mr. Amann apologizing for the miscommunication related to his records request stating that he was “completely unaware of your 2/27/17 requests prior to receiving your SRC appeal.” Mr. Pehrson added that the AG’s Office “intends to review and respond to your requests as quickly as possible” but “this will obviously require some time.” Based upon Mr. Amann’s March 31, 2017, appeal to the Committee, the Committee held a hearing on May 11, 2017, where the parties presented their arguments. After considering the arguments, reviewing all written materials, and reviewing some of the records in camera, the Committee now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Every 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, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1).
2. A person making a request for a record shall submit the request to the governmental entity that prepares, owns, or retains the record. Utah Code § 63G-2-204(2)(a). After receiving a request for a record, a governmental entity shall as soon as reasonably possible, but no later than 10 business days after receiving a written request: (1) Approve the request and provide a copy of the record; (2) Deny the request in accordance with the procedures and requirements of Utah Code § 63G-2-205; (3) Notify the requester that it does not maintain the record requested and provide, if known, the name and address of the governmental entity that does maintain the record; or (4) Notify the requester that because of extraordinary circumstances, it cannot immediately approve or deny the request. Utah Code § 63G-2-204(3)(b).
3. The first issue before the Committee is whether the Committee has jurisdiction to consider the present matter. If the governmental entity fails to provide the requested records or issue a denial within the specified time period, that failure is considered the equivalent of a determination denying access to the record. Utah Code § 63G-2-204(8). If on appeal, the chief administrative officer fails to make a timely decision on an appeal of an access denial, the failure is the equivalent of a decision affirming the access denial. Utah Code § 63G-2-401(5)(b)(i). An appeal may be filed with the executive secretary of the Committee: (1) No later than 30 days after the date of issuance of the decision being appealed; or (2) 45 days after the day on which the record request is made if the circumstances described in Utah Code § 63G-2-401(1)(b) occur and the chief administrative officer fails to make a decision under Utah Code § 63G-2-401. Utah Code § 63G-2-403(1)(a) and (b).
4. Mr. Amann filed his GRAMA request on February 27, 2017, filed his appeal with Attorney General Sean Reyes on March 20, 2017, and then filed his appeal with the Committee’s executive secretary on March 31, 2017. The AG’s Office’s failure to respond to Mr. Amann’s initial GRAMA requests, his timely appeal of the equivalent denial, and his timely appeal to the Committee’s executive secretary of the second equivalent denial, complied with the statutory requirements of GRAMA. Accordingly, the Committee finds that it has the jurisdiction to consider the merits of the present case.
5. The second issue is whether “extraordinary circumstances” exist allowing the AG’s Office to have additional time to respond to Mr. Amann’s records requests. The AG’s Office presented testimony, affidavit evidence, and copies of emails, showing that the initial failure to respond to Mr. Amann in a timely manner was because of an “apparent technical problems with [their] email.” According to Mr. Pehrson, Mr. Amann’s email “was identified by Google as spam and sent to a spam box where it was eventually automatically deleted unread.” Mr. Pehrson further stated that since learning of Mr. Amann’s requests, the AG’s Office has been attempting to respond to his requests, but have only been able to complete seven of the 56 records requests at the time of the hearing. For the remaining 49 requests, Mr. Pehrson has requested to have additional time to respond to the requests, claiming that “extraordinary circumstances” exist allowing the AG’s Office to respond to the requests outside of GRAMA’s statutory time requirements.
6. After receiving a written request for a record, a governmental entity may notify the requester that because of “extraordinary circumstances,” it cannot immediately approve or deny the request. Utah Code § 63G-2-204(3)(b)(iv). “Extraordinary circumstances” is defined by GRAMA to include a request that is voluminous in quantity of records or when the requester is seeking a substantial number of records in requests filed within five working days of each other. Utah Code § 63G-2-204(5)(c).
7. For claims of extraordinary circumstances pursuant to Utah Code § 63G-2-204(5)(c), the governmental entity shall “complete the work and disclose those records that the requester is entitled to inspect as soon as reasonably possible.” Utah Code § 63G-2-204(6)(c)(iii). However, the governmental entity must also provide the requester with an estimate of the amount of time it will take to finish the work required to respond to the request. Utah Code § 63G-2-204(6)(c)(ii).
8. If a governmental entity claims extraordinary circumstances and the requester believes the extraordinary circumstances do not exist, the requester may appeal the governmental entity’s claim of extraordinary circumstances. Utah Code § 63G-2-401(1)(b).
9. Mr. Pehrson stated extraordinary circumstances existed for the AG’s Office to respond to Mr. Amann’s records request because he made 56 separate records requests and he is seeking a substantial number of records. Mr. Amann disagreed with the AG’s Office’s claim of extraordinary circumstances, and instead requested that the Committee order the AG’s Office to provide him with all of the requested records.
10. After having reviewed the written materials, exhibits, the arguments of the parties, and the testimony presented at the hearing, the Committee finds that “extraordinary circumstances” exist allowing the AG’s Office to have more time to respond to Mr. Amann’s records requests. The Committee is persuaded by the testimony presented that Mr. Amann’s remaining 49 records requests will require additional time for the AG’s Office to provide the voluminous quantity of records. Additionally, a review of the remaining 49 records requests show that they are not simple records requests and fulfilling his requests will require administrative resources greater than the 10 business days allowed by GRAMA. Further, when considering all of the circumstances of the present case, it would be improper for the Committee to order the AG’s Office to provide records to Mr. Amann even though the AG’s Office has not had the opportunity to review and determine whether the records should be classified as public or non-public records. Such an order could make available to the public a record that should have been classified as a non-public record.
11. The third issue is whether the AG’s Office has properly responded to Mr. Amann’s first seven records requests. The Committee finds that all documents responsive to the seven records requests (Bates Stamped 2A, 2B, 2C, 2D, 2E, 2F & 2G) have been provided to Mr. Amann. Additionally, after having reviewed the document in camera, the Committee finds that the redactions made by the AG’s office for Document 2A were proper pursuant to Utah Code § 63G-2-302(2)(d) (data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner Paul Amann is 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. 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 its rights on appeal, a party may wish to seek advice from an attorney.
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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities. Utah Code § 63G-2-403(15)(d)(i). 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 22nd day of May 2017.
BY THE STATE RECORDS COMMITTEE
DAVID FLEMING, Chairperson
State Records Committee
Page Last Updated May 22, 2017 .