This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The case of Kevin Tolton versus the Town of Alta is widely known as the mother of all records requests — the incident that access advocates, government officials and lawmakers alike hold out as the example of why Utah's open records law needs revision.
The case, which began in 2002, took seven years to play out, produced more than 250,000 documents and involved tens of thousands of dollars as it moved from the resort town to the state Records Committee and finally to 3rd District Court.
Long before it fizzled out in 2009 — and years before the recent debate over public records access — the case sparked proposed changes to the state's Government Records Access and Management Act.
In 2005, a legislative task force cited the case in considering a revision that would have allowed public employees to deny requests they deemed "harassing or otherwise unreasonably increasing the workload or causing unwarranted expense."
Paul Thompson, the town's attorney, explained at the time the provision was needed because "several frustrated developers would like to use the procedures in GRAMA to tie up the staffs of small towns."
The proposal was left out of a later bill that tweaked the act. But the Town of Alta case surfaced again in 2008, when the Utah League of Cities and Towns pushed lawmakers to remove the cap on what government entities can charge when faced with voluminous records requests.
This year, the case was the poster child for revisions encapsulated in the now-repealed HB477, which, among other things, would have allowed government entities to assess added fees for certain records requests.
Across the country, governmental entities are grappling with the questions at the heart of Tolton versus the Town of Alta: How do entities, especially those with small staffs, respond to massive requests? Who should bear the cost for voluminous document requests? What repercussions are there when an entity is unresponsive?
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A family legacy • Tolton's father, a former prosecutor of the Town of Alta, bought the property in the Cecret Lake area in the 1970s.
He "gave it to me on his death bed," Tolton said in an email to The Salt Lake Tribune. The dispute began when the Town of Alta informed Tolton he would have to show he had water and sewer service for the property before it could issue a building permit.
At the time, the town had already successfully fought two lawsuits related to water service brought by owners of property in the Albion Basin. It didn't take much for the town and Tolton to find themselves at odds.
Tolton sent a records request to the town in May 2002 seeking documents he claimed were critical to understanding the town's interest in curtailing development in the basin, including a wetlands study, a copy of the general plan, zoning ordinances and a wastewater disposal application. The town sent about 300 pages of documents but declined to provide others.
More requests followed, which the town denied, citing at one time or another Tolton's failure to provide a daytime phone number, the volume of records sought, and lack of clarity about what records he wanted.
In particular, the town refused to release documents detailing its water and sewer systems, which are classified as protected records in a section of GRAMA that deals with Homeland Security provisions.
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A first appeal • Tolton appealed the town's denial to the state Records Committee, which in 2003 ruled the town couldn't deny the request just because it was voluminous. The committee directed Tolton to refile a consolidated records request.
The committee also gave Alta three options: produce a document; show it had already given it to Tolton; or explain why, under the act, a requested record was not a public document. In an unusual move, the committee also designated its chairman to act as a mediator between Tolton and the town.
Days later, Tolton sent a nine-page request to the town that listed 89 different types of records he wanted to inspect. The list included engineering drawings, water usage records, septic plan drawings, water source surveys, budgets for the past 30 years, planning commission meeting minutes, and financial reports.
In April 2003, then-Mayor Bill Levitt responded point by point to each request, identifying some records as public, others as protected and claimed a number did not exist. The mayor told Tolton that the town would charge him $2,840 to fulfill his request, a fee that covered staff time — at the rate of $27 an hour — to "search, retrieve and compile" what amounted to virtually all of the town's records.
Tolton objected to the charge, but in a second hearing in May 2003, the records committee said a "reasonable" fee was justified; it also said the town appropriately withheld documents related to its water and sewer infrastructure.
But the situation deteriorated further.
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Judge orders documents, table • In June 2003, Tolton filed a lawsuit against the Town of Alta, the records committee and the state over records the town claimed were protected or unavailable.
In his complaint, Tolton said the town was attempting to stymie property development and "dodge and escape records requests by claiming they do not understand the nature of the requests and therefore they cannot respond to those records requests."
The records committee, Tolton claimed, had misinterpreted the GRAMA law, failed to impose sanctions against the town for failing to produce public documents and ruled inappropriately on the fee issue.
In April 2004, 3rd District Judge Robert K. Hilder ordered the Town of Alta to let Tolton review and copy public documents and make a log of records it considered private or protected.
The judge set up a schedule for Tolton's visits to the town office, ordered a table be provided for his use and said the town could charge him only for actual copying costs, not for staff time or copies made on his own equipment.
Tolton hired a private company, which went to work copying about 250,000 pages of documents. But there were several skirmishes requiring court intercession along the way. At one point, Hilder clarified the copying procedure and barred Tolton from entering town offices except to attend public meetings.
Twenty months later, the town sent Tolton a log of documents it was withholding as privileged and shortly after, asked the judge to dismiss the case.
The town's four full-time clerical employees had spent "more than a year of their time" producing "virtually every record of the town," its attorney wrote in a court filing. "The time has gone by to just say this is over."
But it wasn't over.
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$75,000 and counting • Tolton asked Hilder to review the town's classifications, claiming the log failed to provide dates and descriptions of each document, or explain why the item was privileged. Among the examples he cited: "PRIVLOG 000847: This document cannot be accessed due to software limitation."
"The documents claimed to be protected in the privilege log are, in fact, as far as I am concerned, the focal point of the entire GRAMA process," Tolton said in a court filing, which also noted he'd spent more than $75,000 as of August 2006 in his battle with the town.
Hilder then privately reviewed 18 attorney-client files, two boxes of personnel files and three boxes of government security records listed on the town's log. In late 2007, the judge determined the town had accurately identified privileged documents and had no obligation to produce any of its personnel records.
"Virtually nothing in the personnel files appears to be responsive to Dr. Tolton's stated objective to prove Alta's 'anti-development agenda,' or discover evidence of 'favoritism, arbitrary and unique access to utilities, [and the] fostering [of] private rather than public objectives.' "
As for the "government security" records, Hilder "reluctantly" concluded that a review was beyond his expertise. If Tolton wanted to continue to challenge the status of those documents, the judge said, he would have to hire an expert — an engineer, architect or lawyer trained in one of those fields — to conduct a confidential review.
"I cannot think of a more efficient way to review this class of documents, and also maximize the likelihood that Dr. Tolton will have access to documents that are, in fact, responsive to the need he articulates," Hilder said in his ruling.
Hilder also found the "vast majority" of attorney-client files were not subject to disclosure.
Another year passed, during which several more court hearings occurred. In November 2008, Hilder ordered a document company to produce a new index of the privileged documents for Tolton to use in challenging the status of specific documents. Among documents on the 9,000-item index are "Snowmaking Water Meter Reading for the Town of Alta," and "July Checks of June 1994 Town of Alta" as well as numerous entries with no title or description other than "financial" or "report."
But after receiving the index, Tolton raised no new challenges and, in June 2009, Hilder finally dismissed the case.
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Disruptive or unresponsive? • Town of Alta Clerk Kate Black estimates the town spent $37,000 in staff time and legal fees in the dispute with Tolton.
"It was totally disruptive and took an awful lot of staff time," said John Guldner, town manager. "Never, ever, had we had a record problem until development issues became more intense. Anybody, any time, could drop into the town office and say, 'I want to see this,' and they would get it immediately."
But Tolton was "asking for things that nobody would ever really need — checks written 40 years ago to some vendor working on our water system," Guldner said. "Nobody had ever asked for the world, out of order."
He said Tolton's complex GRAMA request posed trouble for the town no matter what it did. "If there is a very long and twisted paragraph requesting records and you answer it the best you can, you could miss something," he said. "And if you ask for clarification, boom, you end up in front of the records committee."
Guldner maintains the town never acted inappropriately or tried to withhold any public documents, state Records Committee and court rulings aside.
Tolton doesn't see it that way. "They tried every means at their disposal to hide records that should have been open to the public and tried to charge excessive fees to stop me and others from finding out what they were up to," Tolton said.
Tolton figures it would have cost him more than $100,000 to have an outside expert review the "government security" records, which he estimated totaled 40,000 pages.
"In essence, they tried to bankrupt me through the courts," Tolton said. "The average person trying to use the GRAMA statutes to shed light on the government wouldn't have a chance to find out what that corrupt government was doing. I spent tens of thousands of dollars, multiple of tens of thousands of dollars, but poor Alta was claiming all along they were the burdened party."
brooke@sltrib.comTwitter: @Brooke4Trib Some states bar 'disruptive' requests
Government entities in Utah can charge actual costs of producing documents but can't deny records requests because they involve a large number of records.
But some states like New Jersey allows denials of requests that have the potential to disrupt operations. According to a 2010 article in New Jersey Municipalities, that state's Government Records Council invoked the exclusion a handful of times. One instance involved a requester who made more than 200 "voluminous" requests for the same documents within the span of a year to a small municipality with a part-time staff. In another case, a requester sought building inspection records for more than 6,000 buildings, with each individual file containing 20 years' worth of reports.
Brooke Adams —
Working group to meet Wednesday
P The GRAMA Working Group will meet Wednesday at 9 a.m. in the Senate Office Building, Room 210, at the state Capitol.
The group will hear public comments and then meet in newly formed subcommittees, according to Lane Beattie, chairman. —
Editor's note
This is one in a series of occasional stories examining claims and issues being raised in the debate over modifying Utah's open records laws.