ALEC - AGs Request (Office of the Attorney General - Utah)

Dear Mr. Richardson,

On 5-8-15 the Utah Attorney General’s Office received your email requesting
the following records of the Attorney General’s Office:

“–All communications between members of this office and employees or
representatives of the American Legislative Exchange Council.

“–All communications containing the keywords ‘ALEC’ or ‘American
Legislative Exchange Council.’

“–Any files or documents attached to the above communications.”

I am writing back to you to address some important matters relating to your
request.

EXTENSION OF RESPONSE DEADLINE

The deadline for the Office to respond to your request is 5-22-15, which is
ten business days after it was received. The Office has begun to work on
its response to your request. Unfortunately, the Office is currently
processing a large number of records requests, and it will not be possible
to respond to your request by today. The response deadline is therefore
being extended as authorized by Utah Code Sections 63G-2-204(5)(d) and
63G-2-204(6)(c) (West Supp. 2014). Pursuant to Utah Code Ann. Section
63G-2-204(3)(b)(iv) (West Supp. 2014), I am notifying you that I estimate
that the Office will be able to respond to your request by 6-25-15. If at
some future date it appears that further extension of that deadline is
needed I will inform you. Your patience is appreciated.

You have the right to appeal this extension of the response deadline to the
chief administrative officer of the Office, as provided in Utah Code Ann.
Section 63G-2-401(1)(b) (Effective 5-12-15). The notice of appeal would
need to be sent to Attorney General Sean D. Reyes at following address:

(If by hand-delivery)

GRAMA Appeal
Office of the Attorney General
Utah State Capitol Complex
350 North State Street Suite 230
Salt Lake City, UT 84114

(If by mail)

GRAMA Appeal
Office of the Attorney General
PO Box 140860
Salt Lake City, UT 84114-0860

(If by email)

GRAMA Coordinator
grama_coordinator@utah.gov

To do so, you must file a Notice of Appeal with that officer within 30 days
after the date of this email. Your Notice of Appeal must contain your
name, your mailing address, your daytime telephone number, and a statement
of the relief you seek. With your Notice of Appeal, you may also file a
short statement of facts, reasons and legal authority in support of your
appeal. Please note that Utah Code Ann. Section 63G-2-
401(9) (Effective 5-12-15) provides that the duties of the chief
administrative officer for handling such appeals may be delegated.

FEES

It is apparent that you would like to have a waiver of fees for the
fulfilling of your request. You state that if fees cannot be waived, you
want to be informed in advance of the charges. At this point, you have not
stated a sufficient basis for a waiver of fees. Your statement that you
intend to make the requested documents available to the public and that you
are not making the request for commercial purposes is insufficient.

Before making a decision regarding your request for a fee waiver, however,
I am providing you an opportunity to present to me in writing any
additional facts or reasons you may have in support of your request. I do
not know what statutory basis you are claiming in support of your request
for a fee waiver, but in case you are relying on Utah Code Ann. Section
63G-2-203(4)(a) (West 2009), I have attached a copy of the Office’s policy
regarding fee waivers under that provision. That policy explains the
burden you must meet in order to support a request for a fee waiver under
that provision. If you are not relying on that statutory provision, you
will still need to provide additional facts and reasons to support your
request or it will be denied. If you wish to provide additional facts or
reasons to support your request for a fee waiver, please email them to me
by 6-1-15.

CONCERNS REGARDING LACK OF SPECIFICITY IN YOUR REQUEST

One of the requirements of the Utah Government Records Access and
Management Act (“GRAMA”) is that a request for a record identify the record
with reasonable specificity. Utah Code Ann. Section 63G-2-204(1)(b) (West
Supp. 2014). A governmental entity is not obligated to respond to a
request that does not comply with that requirement. See Utah Code Ann.
Section 63G-2-201(7)(b) (West Supp. 2014). Unfortunately, your request in
some respects is not sufficiently specific. For example, you have asked,
among other things, for communications with “employees or representatives
of the American Legislative Exchange Council.” You have not, however,
provided the names of any such employees or representatives. It is not
reasonable for you to expect the Office to know the names of those
persons. Without the names of those persons, every employee of the Office
would have to read every single piece of correspondence they have to
determine whether the sender or recipient was an employee or representative
of the American Legislative Exchange Council. Accordingly, that part of
your request is not a reasonably specific request and is subject to being
denied unless you make it more specific.

Not only does the lack of specificity of your request make part of it
subject to denial on that basis, but your request is so broad that it will
lead to substantial chargeable fees (if your request for a fee waiver is
not granted). As it is presently written:

1. Your request covers an unlimited period of time.

2. Your request covers all communications, so a search of both email and
hard-copy correspondence will be required.

3. Your request calls for every employee of the Office to perform a search
for responsive records. There are approximately 440 employees in the
Office, and that search will take considerable time. It will be necessary
for the Office to communicate with each of its 440 employees and ask them
to search for the communications. The hourly cost to the Office for the
collective salaries of all its employees is approximately $15,153.60. If a
fee waiver is not granted, you would be required to pay a fees deposit to
the Office before further process of your request could take place. The
amount of fees has not been calculated at this point but this hourly cost
should give you an idea of the potential fees that would be incurred with
the present wording of your request.

If there are any ways your request can be narrowed or clarified, that could
help in reducing the cost of responding to it. For example, a request that
focuses on searching for key words in emails, or a search of emails with
named persons, is much more narrow.

If you wish to provide any clarifications or narrowing of the scope of your
request, please send them to me so that I receive them by 6-1-15.

Sincerely,

Blaine Ferguson

--
Blaine R. Ferguson
Assistant Attorney General, State of Utah
Government Records Counsel
P. O. Box 140860
Salt Lake City, UT 84114-0860
Telephone: (801) 366-0209
Email: bferguso@utah.gov

*PRIVACY NOTICE: This email, from the Office of the Utah Attorney General,
contains information that may be confidential and/or legally privileged.
This email is intended only for the use of the person(s) named as intended
recipient(s). If you are not the intended recipient, you are hereby
notified that any disclosure, copying, distribution of or the taking of any
action in reliance on the contents of this email is strictly prohibited.
If you have received this email in error, you are hereby instructed to
delete it from your computer system immediately, and to also delete any
attachments to this email. The unauthorized disclosure, use or publication
of confidential or privileged information inadvertently transmitted to you
may expose you to criminal and/or civil liability.*

Dear Mr. Richardson,

Thank you for your emails dated 5-26-15 and 6-10-15.

As I indicated in my email to you of 5-22-15, the Attorney General's Office
is currently processing a large number of records requests and it has been
necessary to extend to 6-25-15 the deadline to respond your request. If it
becomes necessary to further extend that deadline I will let you know.

I am considering the additional information you provided to support your
request for a fee waiver and will inform you regarding my decision on that
request.

Sincerely,

Blaine Ferguson

--
Blaine R. Ferguson
Assistant Attorney General, State of Utah
Government Records Counsel
P. O. Box 140860
Salt Lake City, UT 84114-0860
Telephone: (801) 366-0209
Email: bferguso@utah.gov

*PRIVACY NOTICE: This email, from the Office of the Utah Attorney General,
contains information that may be confidential and/or legally privileged.
This email is intended only for the use of the person(s) named as intended
recipient(s). If you are not the intended recipient, you are hereby
notified that any disclosure, copying, distribution of or the taking of any
action in reliance on the contents of this email is strictly prohibited.
If you have received this email in error, you are hereby instructed to
delete it from your computer system immediately, and to also delete any
attachments to this email. The unauthorized disclosure, use or publication
of confidential or privileged information inadvertently transmitted to you
may expose you to criminal and/or civil liability.*

Dear Mr. Richardson,

The Utah Attorney General’s Office continues to be working through a large
number of records requests, including the one it received from you on
5-8-15. The Office appreciates your 5-26-15 amendment of your request,
which narrowed your request. As I understand your amended request, you are
asking for the following:

1. Electronic communications from 2010 to 5-26-15 to/from/cc/bcc employees
of the Office and the email domain @alec.org

2. Electronic communications from 2010 to 5-26-15 on the Attorney
General’s email address that contain the keyword “American Legislative
Exchange Council”

This email will address the status of your request for a fee waiver, and
the timing of the Office’s response to your request.

YOUR REQUEST FOR A FEE WAIVER

You have asked the Office to grant you a waiver of fees pursuant to Utah
Code Ann. Section 63G-2-203(4)(a). That provision encourages, but does not
require, a governmental entity to fulfill a record request without charge
when the governmental entity determines that releasing the record primarily
benefits the public rather than a person. I provided you with a copy of
the Office’s Policy for GRAMA Fee Waiver Requests under Utah Code Ann.
Section 63G-2-203(4)(a), and you have submitted information to me to
support your fee waiver request, based on the procedures and factors
specified in that policy.

As provided in that policy, you have the burden of demonstrating that (a)
releasing the record(s) primarily benefits the public rather than a person,
and that (b) the factors in the policy should be applied to grant your
waiver request.

Pursuant to that policy, I have the responsibility of making the decision
about your fee waiver request. In making my decision, I have considered
the information you have provided and have applied the procedures and taken
into account the factors specified in that policy.

DECISION ON YOUR FEE WAIVER REQUEST

Your request for a fee waiver is respectfully denied, because you have not
demonstrated that releasing the record to you will primarily benefit the
public rather than a person, and that the factors in the policy should be
applied to grant the waiver request. Although you have stated that there
is a public interest in the interactions between the American Legislative
Exchange Council and local government bodies and attorneys general, you
have not demonstrated that providing you with the requested records will
advance that public interest. For example, although you have stated that
the requested documents will be made available to the general public, you
have not demonstrated that you are a member of the public media or
otherwise have the capability to disseminate to the general public any
records you receive.

Based on the time required to search for and retrieve potentially
responsive records (not counting the first quarter hour), I estimate that
the Office will incur an expense of at least $80.48 in costs that are
properly chargeable to you. Since that amount exceeds $50.00, the Office
will require you to pay a fees deposit of $80.48 before further work will
be done by the Office in processing your request. See Utah Code Ann.
Section 63G-2-203(8) (West 2009). If you want us to proceed to complete
our response to your request, please send the requested deposit and we will
move forward with the processing of the request.

Your narrowing of your request has been most helpful. Thank you. Had you
not done so, the amount of the fees deposit would have been much greater.

Please do not send cash. The payment of the deposit should be in the form
of check or money order payable to “Utah Attorney General’s Office” and
should be sent to:

Tippy Khaysavang
Utah Attorney General’s Office
Administration Division
P.O. Box 140811
Salt Lake City, UT 84114-0811

On the check, please make reference to “Fees Deposit–Alex Richardson GRAMA
request--#15-52.

The amount of the requested deposit is a preliminary estimate of the fees
that will be due. Any prepaid amount in excess of the actual fees due will
be returned to you. Similarly, if it appears that the actual fees will
exceed the amount prepaid, we will require you to pay an additional
prepayment to cover those additional amounts.

If you believe there has been an unreasonable denial of your fee waiver
request, you have the right to appeal that denial to the chief
administrative officer of the Office. See Utah Code Ann. Sections
63G-2-203(6) (West 2009) and 63G-2-401(1)(a) (Effective 5-12-15). The
notice of appeal would need to be sent to Attorney General Sean D. Reyes at
following address:

(If by hand-delivery)

GRAMA Appeal
Office of the Attorney General
Utah State Capitol Complex
350 North State Street Suite 230
SLC UT 84114

(If by mail)

GRAMA Appeal
Office of the Attorney General
PO Box 140860
SLC UT 84114-0860

(If by email)

GRAMA Coordinator
grama_coordinator@utah.gov
To do so, you must file a Notice of Appeal with that officer within 30 days
of the date of this denial. Your Notice of Appeal must contain your name,
your mailing address, your daytime telephone number, and a statement of the
relief you seek. With your Notice of Appeal, you may also file a short
statement of facts, reasons and legal authority in support of your appeal.
Please note that Utah Code Ann. Section 63G-2-401(9) (Effective 5-12-15)
provides that the duties of the chief administrative officer for handling
such appeals may be delegated.

TIMING FOR COMPLETION OF RESPONSE

If you send the fees deposit described above, the Office will promptly
resume its work in processing your request after receiving it. I estimate
that the time needed thereafter to complete the response to your request
will be ten business days. If you send the fees deposit but wish to appeal
regarding that timing for the response, you may do so by submitting a
notice of appeal to Attorney General Sean D. Reyes in the same manner
specified above for appealing the denial of your request for a fee waiver.

Thank you for your patience and consideration.

Sincerely,

Blaine Ferguson

--
Blaine R. Ferguson
Assistant Attorney General, State of Utah
Government Records Counsel
P. O. Box 140860
Salt Lake City, UT 84114-0860
Telephone: (801) 366-0209
Email: bferguso@utah.gov

*PRIVACY NOTICE: This email, from the Office of the Utah Attorney General,
contains information that may be confidential and/or legally privileged.
This email is intended only for the use of the person(s) named as intended
recipient(s). If you are not the intended recipient, you are hereby
notified that any disclosure, copying, distribution of or the taking of any
action in reliance on the contents of this email is strictly prohibited.
If you have received this email in error, you are hereby instructed to
delete it from your computer system immediately, and to also delete any
attachments to this email. The unauthorized disclosure, use or publication
of confidential or privileged information inadvertently transmitted to you
may expose you to criminal and/or civil liability.*