State Records Committee Appeal Decision 2017-32
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
HARSHAD P. DESAI, Petitioner, v.
GARFIELD COUNTY. Respondent.
DECISION AND ORDER
Case No. 17-32
By this appeal, Petitioner, the Harshad P. Desai, seeks fee waivers for copies of records held by Respondent, Garfield County.
In the month of May 2017, Mr. Desai made five records requests to Garfield County ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Desai also requested that the Respondent provide the records with “[z]ero charges.” In a letter dated May 22, 2017, Kim Brinkerhoff, custodian of the records for Respondent, stated that the cost for providing the records to Mr. Desai would be $15.00.
On or about July 12, 2017, Mr. Desai filed an appeal with the State Records Committee (“Committee”), claiming that the Respondent should have granted his request for a fee waiver. The Committee, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony on September 14, 2017, now issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. 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). Actual costs may include the cost of staff time searching, retrieving, and other direct administrative costs complying with the request. Utah Code § 63G-2-203(2)(a)(ii). An hourly charge may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). Additionally, no charge may be made for the first quarter hour of staff time. Utah Code § 63G-2-203(2)(c).
2. 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 Subsection 63G-2-202(1) or (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).
3. 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). The adjudicative body hearing the appeal shall review the fee waiver de novo, but shall review and consider the governmental entity’s denial of the fee and any determination under Utah Code § 63G-2-203(4)(a-c). Utah Code § 63G-2-203(6)(b)(i). 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).
4. Mr. Desai claimed that the Respondent “is engaged in deterrent approach demanding fees.” In response, the Respondent provided an affidavit from Ms. Brinkerhoff, who stated that she and other Garfield County employees “spent a minimum of 2 and half hours to respond to the requests, specifically, to review, search for, retrieve, and summarize the information for Mr. Desai.” Ms. Brinkerhoff also stated that Respondent charged Mr. Desai for only one hour of work, and that the rate of $15.00 per hour was less than the hourly rate of the lowest paid employee with the necessary skill and training to respond to the request.
5. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Mr. Desai failed to prove that he is entitled to fee waivers for appeal requests 2017-65, 67, 68, 69, and 70 pursuant to Utah Code § 63G-2-203(4).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner 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 25th day of September 2017.
BY THE STATE RECORDS COMMITTEE
DAVID FLEMING, Chairperson
State Records Committee
Page Last Updated September 25, 2017 .