What is GRAMA?
The Government Records Access and Management Act (GRAMA)
allows the public access to public records while at the same time protecting
certain records that are considered private, controlled, or protected. Most
records are public and are available to anyone who requests a record. The person requesting records is required to
describe the desired documents with reasonable specificity.
The City generally is allowed up to ten business days to
provide records once a GRAMA request has been submitted; however, the City is
allowed to exceed the ten days under extraordinary circumstances, such as if
the request contains a voluminous quantity of records, or if the City is
processing a large number of requests all at the same time.
Can the City charge a fee?
The City may charge a reasonable fee to cover the actual
cost of providing a record. If the City compiles a record in a form other than
that normally maintained by the City then the fee may include:
·
the cost of staff time to compile the data,
·
the cost of staff time to search and retrieve
the records contained in the request,
·
in the case that the record is the result of a
computer output other than word processing, the actual incremental cost of
providing the record together with a reasonable portion of the costs associated
with formatting or interfacing the information.
What records are not public?
Some records are considered private, controlled, or
protected. The City is not allowed to provide access to any record that fits
into these three categories and any person who knowingly does provide these
records can be subject to criminal penalties. The GRAMA law contains 10 pages of items that are considered private, controlled and protected. A very brief summary of those types of records is as follows:
Private Records – Examples of
private records include, but are not limited to records about a person’s
welfare benefits; medical history; library records; current and former
employee’s home addresses, social security numbers, and marital status; email
addresses; and driver license numbers.
Controlled Records – Examples of
controlled records include records that contain medical, psychiatric, or
psychological data about an individual.
Protected Records – Examples of
protected records include, but are not limited to trade secrets; test questions
and answers used for licensing or employment; records that contain information
which, if disclosed, would impair governmental procurement proceedings; records
that contain information which, if disclosed, would impair the acquisition of
property; information on security systems; records prepared for or by an
attorney; and records involving a criminal investigation.
What is the history behind a recent request for emails?
There are six different GRAMA requests for emails that have been mentioned. The first was filed by Ken Cromar in March of 2012. That request has been fulfilled. A detailed timeline of that request can be found in the 2012 State of the City magazine that was mailed to all residents and is also online at http://www.cedarhills.org/state-of-city. It starts on page 19. Mr. Cromar received approximately 6,000 pages of emails with that request.
A second request for emails was filed by Mr. Cromar on October 1, 2013. In that request he asked for all email and text records, from whatever source city, and/or personal email and text accounts etc. from April 1, 2012 to present, in their current form, between any and/or all of the following individuals before, after, or during their term of Cedar Hills public employ: Mayors and City Council Members, City Managers, Assistant City Managers, City Recorder or any assistants, Finance Director and/or CFO positions and department assistants, Golf Course managers and assistant managers, Greg and Gretchen Gordon, and Brad Sears. Mr. Cromar wanted all of these records provided for free.
There were several issues with this request and so the city issued a denial on October 14th. Some of the issues include:
- The request is for all emails and text, even personal email on personal accounts;
- The request asks for text messages, which the city doesn't have access to and isn't required to as they are transitory in nature;
- The request asks for texts and emails on personal accounts of a private citizen;
- The request asks for emails that extend beyond the city retention policy;
- The request asks for emails and texts in their current form. This is not possible as redaction of private, controlled, and protected information must occur before the records are provided;
- The request asks for all records to be provided at no cost, even though the State Records Committee had previously told Mr. Cromar that the city could require prepayment of compilation costs prior to fulfilling a request.
After receiving the denial Mr. Cromar requested a phone call with the city and the State Records Ombudsman, who serves as a mediator. This call occurred on October 18, 2013. Mr. Cromar was given the opportunity to appeal the denial, but chose not to so the request expired.
On December 9, 2013 Mr. Cromar filed another request for emails. This time his request was to inspect free of charge all email and text records, from whatever source city, and/or personal email and text accounts, etc. from April 1, 2012 to present, in their current form, between any and/or all of the following individuals before, after, or during their term of Cedar Hills public employ: Mayors, City Managers, City Recorders, Golf Course Managers, Greg & Gretchen Gordon, and Brad Sears. The issues with this request are the same as listed above so the city issued a denial on December 20, 2013.
Mr. Cromar then asked for a meeting between himself, Jerry Dearinger, the city manager David Bunker, Mayor Gygi, and myself. He reached out to me on Christmas Day asking if I would be willing to meet the next morning. We agreed and had a meeting on December 26th. We explained the issues with the request and the process for fulfilling these requests and again stated we were willing to provide the public records once the compilation costs had been paid, but would not begin working on the request until that time.
Mr. Cromar did not agree to pay anything and filed an appeal on January 17, 2014. He also asked for another mediation meeting to occur. We agreed to another meeting only if Mr. Cromar would provide the following:
- A written proposal with a clear and distinct solution to resolve the GRAMA request, which includes his desired outcome, what he believes the city should do to fulfill the request, and an acknowledgement that he will be responsible to prepay the compilation costs prior to fulfillment;
- The proposal had to include an acknowledgment that a fee would be required for compilation;
- That the mediation meeting would include Mayor Gygi, city manager David Bunker, and city attorney Eric Johnson;
- The City Council would identify which two council members would attend the meeting;
- An acknowledgement that emails cannot be provided "as is" as redaction of private, controlled, and protected information is required by law.
This was not agreeable to Mr. Cromar and he received another denial from the city on January 22, 2014. On February 21, 2014 he filed a request for a hearing before the State Records Committee. The city provided a response to the appeal on March 13, 2014 and the hearing was scheduled for April 10, 2014. On March 31, 2014 the city received a letter from the State Records Committee changing the hearing to May 8, 2014. The city and the city attorney spent many hours preparing for the hearing.
During the first week in April Mr. Cromar reached out to the State Records Committee and the city asking that his hearing be cancelled because he found a better way to have his request fulfilled. The hearing was cancelled and on April 8, 2014 the city received three identical GRAMA requests; one from the Daily Herald, one from Sam Bushman and Tim Alders, and one from Jerry Dearinger and signed be several other individuals. Mr. Cromar's request was now expired as he cancelled his appeal.
The new requests asked for all city business related emails and text records, from whatever source, including but not limited to city and/or personal email and text accounts, from April 1, 2012 to present as "normally maintained" between any and/or all of the following individuals before, after, or during their term of Cedar Hills public employ: Mayors, City Managers, City Recorders, Golf Course Managers, Greg & Gretchen Gordon, and Brad Sears.
Again, there were issues with the requests. Bushman and Dearinger were each only willing to pay $87 for fulfillment and the Daily Herald was asking for the records to be provided at no cost. Again, the request asked for email on the personal account of a private citizen and again asked for text messages.
The city reached out to all of the individuals to setup a meeting to discuss the issues. The Daily Herald agreed and a meeting was scheduled for April 15. 2014. During that meeting the Daily Herald editor understood the issues and revised his request to eliminate text messages, any emails on the personal email account of a private citizen, agreed that the records must be reviewed and redacted before being provided, and agreed to pay approximately $900 for the request. The city agreed to provide all public records once payment was received. As of today the city has not yet received payment from the Daily Herald, but has been told it is being processed by their corporate offices.
Our city recorder worked to setup meetings with the other requestors but also issued a denial on April 22, 2014 due to the points I mentioned above. On April 28, 2014 Mr. Bushman issued an appeal of the denial. There were some conversations back and forth regarding the request and the city issued another denial on May 14, 2014. During this time the Mayor reached out to those who signed Mr. Dearinger's request to setup a mediation meeting. I was not involved in those conversations so don't have all the dates they occurred. A mediation meeting was setup with the State Records Ombudsman to meet in Salt Lake with Mr. Bushman and Mr. Dearinger. Some of the signers of the request asked that Mr. Dearinger represent them at the mediation, at least one other stated she did not ask for Mr. Dearinger to represent her and wanted to be at the meeting scheduled in Cedar Hills. Eventually the Salt Lake meeting was cancelled as Mayor Gygi requested that a mediation meeting be held in Cedar Hills in the evening so that all the requestors could attend. There was concern expressed that Cedar Hills wasn't a "neutral" location so it was agreed that the mediation would take place at the Highland fire station on the evening of June 11, 2014.
That mediation took place. Included were Mr. Bushman, Mr. Dearinger, the MacPhersons, the Fotheringhams, Mr. James, Mrs. Loosli, Mr. Cromar (even though he is not one of the current GRAMA requestors), the city attorney, the city manager, Mayor Gygi, myself, CM Zappala, the city recorder, Rosemary (the mediator) and Cathy Allred with the Daily Herald. I am going from memory so I may have missed a few names, but needless to say not everyone who signed the request attended the mediation. Details of the mediation are intended to be confidential, but in the end the city agreed to provide the public records that it had always agreed to provide once all of the payments have been received. Mr. Bushman did ask that those listed in the GRAMA request sign affidavits stating that they did not have any city related email or text messages on their personal accounts that had not been turned over to the city as per GRAMA law and the city agreed to this. Originally the city provided signed declarations but this wasn't enough for the requestors as they weren't notarized and didn't state "under penalty of perjury". The affidavits have been updated to include both items and will be resent once we receive word from the mediator that she is fine with the language. All current employees and officials listed in the request have agreed to sign. I do want to point out that this is not required by GRAMA law and that staff and officials are already obligated to uphold GRAMA law, which includes sending to the city recorder any emails and/or texts that are required to be kept as a record. All city employees and officials are adhering to GRAMA laws so the affidavits are a goodwill gesture above and beyond what the law requires.
At this point Mr. Bushman and Mr. Dearinger have both paid their $87 and the city is waiting for the Daily Herald payment of $900 before fulfilling the request. As we've mentioned in the past, the biggest cost comes in the review and redaction of each and every email. This cost cannot be passed to the requestor so is paid for by you, the taxpayers of Cedar Hills.
The city has never denied anyone the right to receive public records. We have consistently stated that all requested records that are maintained as part of our retention schedule will be provided once compilation costs are paid, as allowed by law. This is how every GRAMA request is treated, regardless of who the requestor is. There are some who claim the city is hiding information and/or withholding the public record. That is simply not true.
As always, you are welcome to contact me or any other member of the Council with questions.
