Navigating the GRAMA Appeals Process
A GRAMA request is a written request for access to government records pursuant to Utah’s Government Records Access and Management Act. A governmental entity that receives a request can respond in one of the following ways: 1) provide the requested record, 2) provide a notice of denial that explains why all or part of the record should be withheld, 3) provide a referral if they do not have the record, or 4) provide notification that because of extraordinary circumstances more time will be required in order to respond (Utah Code 63G-2-204(3)).
If the requestor is not satisfied with the response, GRAMA has provided a way to appeal. Here is how to navigate that process.
What can be appealed?
1. Denial of access to records can be appealed. Disagreement over restricted access based on the record’s classification or a confidentiality agreement is the most common reason to appeal a notice of denial. Since all records are presumed to be open to the public unless there is a reason in law to restrict access, the governmental entity’s notice of denial should include reference to the law that authorizes restriction. The legal reference will provide justification for the governmental entity’s reason for denying access and also a basis upon which the requester can respond.
Restricted classification is not the only reason for denying GRAMA requests. For example, an entity may claim that it does not have any records responsive to the request, or that the request is too broad. An entity may deny a request if it duplicates an earlier request from the same person. Any of these denials can be appealed. A requester can argue, for example, that the request is not too broad or that the governmental entity does have records it claims not to have.
2. Denied requests for fee waivers or reductions can be appealed. Although a governmental entity cannot charge for allowing someone to inspect a public record, GRAMA provides details about fees that can be charged for responding to GRAMA requests (Utah Code 63G-2-203). The spirit of the law is that access to records should be provided as reasonably as possible while still allowing government to recoup direct costs associated with providing records. Governmental entities are encouraged, though not required, to waive fees for GRAMA requests if releasing the record is in the public interest, if an impecunious person’s legal rights are affected, or if the requester is the subject of the record. Because determining public interest as well as setting reasonable fees is subjective a governmental entity’s decision about fees is subject to appeal.
3. Claims of extraordinary circumstances can be appealed. GRAMA specifically identifies a number of extraordinary circumstances which, if present, can be the basis for extending the deadline for responding to a records request (Utah Code 63G-2-204(5). When extraordinary circumstances are present the governmental entity should advise a requester when to expect a response. A requester who believes that extraordinary circumstances do not exist or that the timeframe for response is unreasonable can make an appeal.
What is required to make an appeal?
GRAMA outlines an appeals process that can be applied when a records request does not result in the satisfactory production of records. The basis for every appeal is the written copy of the original request or requests along with the notice or notices of denial. These records document the request and corresponding response, and establish a foundation for appeal. Utah Code 63G-2-401(2) states, “The notice of appeal shall contain the following information: (a) the petitioner’s name, mailing address, and daytime telephone number; and (b) the relief sought.”
The appeal should include the requester’s argument, including a statement of the facts, reasons, and legal authority that support the requester’s position (Utah Code 63G-2-401(3)). If a requester appeals a denial based on the entity’s statement that responsive records do not exist, then the appeal must include some evidence that the records do or should exist. If an appeal challenges denial based on a particular restricted classification then the appeal should substantiate why the entity’s classification is inappropriate. When fees are at issue, a requester may explain why filling the request without charge is in the public interest or explain another appropriate reason. The appeal should include the requester’s best argument for why his or her request should be granted.
To whom is appeal made?
1. The first appeal is made to the chief administrative officer. (see Utah Code 63G-2-401) Each denial notice must state that the requester has the right to appeal with instructions for making an appeal to the chief administrative officer (CAO). The CAO is the highest ranking member of the governmental entity. For example, in state government it is the division director or department head. A mayor or city manager is the CAO for a municipality.
Upon receiving the appeal, the chief administrative officer will weigh options and make a determination. It is worth noting that the chief administrative officer is authorized to disclose records that are properly classified as private or protected if he or she believes that, in the specific instance, interests favoring disclosure are greater than or equal to the interests favoring restriction. This allows him or her to satisfy a specific request without generally overruling the restricted classification that has been applied to a set of records.
If the CAO does not release the requested records, he or she must provide a written notice of denial. The notice must include the statement that the requester has the right to appeal the denial either to the State Records Committee or to district court. If the request is for multiple records the requester may ask for an inventory of the records being denied along with the associated reason for denial in each instance.
This process is tempered by the fact that, because GRAMA provides local governments the opportunity to adopt ordinances or policies applicable within their jurisdictions, some local governments have, by ordinance, established a separate appeals board. If the request is to a local government that has established a board other than the State Records Committee, then the notice of denial will provide alternate instructions for appeal. Local government records ordinances or policies are filed with the State Archives. (see local government ordinances)
2. The second appeal is directed to the State Records Committee. (see Utah Code 63G-2-403) The CAO’s denial notice must include notice of the requester’s right to appeal to the State Records Committee or other local appeals board and provide time limits for making the appeal. The State Records Committee, which typically meets monthly, is made up of peoplefrom diverse backgrounds in order to provide different perspectives. A request for a hearing should be directed to executive secretary, Susan Mumford. Upon receipt, Susan will schedule a hearing at a regularly scheduled meeting. Alternately, appeals can be made to the district court.
How does the State Records Committee appeals process work?
1. A hearing is scheduled. A request for a State Records Committee hearing should include notices of denial from both the records officer and the chief administrative officer as well as copies of the original records requests. In addition the request should include a short statement of the facts, reasons, and legal authority why the appeal should be granted. The request must also include the petitioner’s name, mailing address, and daytime telephone number.
All of these should be mailed to: State Records Committee Executive Secretary
346 South Rio Grande Street
Salt Lake City, Utah84101
On the same day that a petitioner requests a hearing, he or she must also provide a copy of the appeal to the governmental entity to put them on notice. This will allow government time to prepare for the hearing. Within five days of receiving the request, Susan will schedule a hearing and will notify both the petitioner and the governmental entity of the hearing date.
2. Arguments are shared. After scheduling the hearing, Susan will send the notice of appeal with its supporting documents and statement to everyone who was involved in the GRAMA request process, and also to each member of the State Records Committee, as well as to anyone who made a business confidentiality claim associated with the request .
Before the hearing the governmental entity will provide a written statement of its argument supporting denial. All involved parties, including committee members, will be able to review arguments supporting both positions before the hearing. If the denial involves denial of access to records, the governmental entity must bring the records in question to the hearing.
3. A hearing is held. At every State Records Committee hearing both sides are allowed to testify and present evidence in support of their position. Beginning with the petitioner, each side is allowed to make a five-minute opening statement, after which each side is allowed twenty or thirty minutes to develop an argument. Committee members will ask questions as they arise. The committee may allow witnesses to testify or other interested parties to comment. If they choose to do so, committee members may review requested records in camera (closed session). On both sides, a clearly defined objective and a well prepared oral argument is very helpful to the process.
At the conclusion of each hearing committee members openly deliberate on the matter before them until a committee member formulates a motion. If the motion is seconded the committee will discuss and then vote on it. If the motion passes with a majority vote, then that motion will be drafted into an order. If the motion fails, then the committee will continue to deliberate until an alternate motion becomes successful.
4. The Committee’s decision is drafted into an order. Representative counsel from the Attorney General’s office is present at every State Records Committee hearing to provide support and draft orders. After each hearing the State Records Committee issues an order expressing the determination of the committee. A governmental entity that does not wish to comply with an order to disclose records may appeal the State Records Committee’s decision in district court. Likewise, a petitioner may continue to pursue a denied appeal in district court.
The State Records Committee has been listening to GRAMA request appeals since GRAMA was enacted in 1992. Each of the committee’s decisions and orders is posted on the Utah State Archives website. These decisions and orders can be a model and a resource for both government and the public as similar situations arise. (see State Records Committee Decisions and Orders)
Anyone who needs help with the GRAMA appeals process is invited to contact the state records ombudsman, Rosemary Cundiff at (801) 531-3858 or firstname.lastname@example.org.