State Records Committee Appeal No. 00-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ADRIAN HICKEY, Appellant, vs.
STATE OF UTAH, BOARD OF PARDONS & PAROLE, Appellee.

DECISION AND ORDER
Case No. 00-09

By this appeal, inmate Adrian Hickey seeks an order compelling Appellee, State of Utah, Board of Pardons & Parole (the "Board"), represented by Assistant Attorney General Sharel S. Reber, to allow him to ". . . inspect and copy all public decisions and rational sheets that the Bd. has issued to offenders that came before them on parole hearings from 1-92 till present." Mr. Hickey requested a fee waiver pursuant to Utah Code Ann. 63-2-203(4)(c). The Board denied his request.

The State Records Committee, having reviewed the written materials submitted by the parties, and having heard testimony and argument, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Mr. Hickey's appeal is denied. The Committee does not dispute the fact that the Government Records Access Management Act ("GRAMA") states that "[e]very person has the right to inspect a public record free of charge and the right to take a copy of a public record during normal working hours, subject to 63-2-203 and 63-2-204." Utah Code Ann. 63-2-201(1). GRAMA obviously does not, however, affect or in any way modify the terms of an offender's incarceration. Therefore, to the extent that Mr. Hickey is requesting transportation and security to allow him to inspect the records in question, he should direct that request to the Department of Corrections.

2. Mr. Hickey's right to inspect and/or copy the records at issue is limited by Utah Code Ann. 63-2-203 and 63-2-204. Subsections (1) and (2) of 203 both provide for the assessment of costs for either copying records or compiling them in a form other than that normally maintained. Where compilation of records is required to segregate public information from information that is not public, the costs of staff time to summarize, compile, tailor, search, and retrieve the record, as well as other administrative costs, may be charged. See Utah Code Ann. 63-2-203(2)(a) and (b).

3. Mr. Hickey argues he should not be charged for any of these costs because 203(4) provides that a record "may" be fulfilled without cost where "the requester's legal rights are directly implicated by the information on the record, and the requester is impecunious." The term "may," according to its ordinary construction "means permissive, and it should receive that interpretation unless such a construction would be obviously repugnant to the intention of the Legislature or would lead to some other inconvenience or absurdity." Crockett v. Crockett, 836 P.2d 818, 820 (Utah Ct. App. 1992). Accordingly, the Board is not required to compile or copy these records for Mr. Hickey free of charge even if it determined his legal rights were directly implicated by the information in the records he seeks. Given the extraordinary amount of records Mr. Hickey is requesting, and the amount of time and costs associated to produce the requested records, the Board is not required to comply with Mr. Hickey's request without charge.

4. In 1999 alone, the Board made more than 11,000 decisions, and the cost of photocopying only the 1999 documents requested would be approximately $2,000.00. This does not include the cost of employee time to research and copy all of the records within the scope of Mr. Hickey's request.

5. For the foregoing reasons, the Board's decision to deny Mr. Hickey's request for a fee waiver is affirmed.

6. Counsel for Appellee has represented that the Department of Corrections can provide the statistical data implicitly required by the Utah Supreme Court's decision in Monson v. Carver, 928 P.2d 1017, 1023 (Utah 1996). The Department of Corrections has a statistician. Counsel for Appellee has represented that this person has expressed a willingness to make reasonable efforts to cooperate with Mr. Hickey in obtaining summary statistical information regarding previous cases considered by the Board. Mr. Hickey may present this request to the Department of Corrections if he chooses to do so.

ORDER

WHEREFORE, IT IS ORDERED THAT Appellant's appeal is denied and the Board's decision is affirmed.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the district court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 and 63-2-502(7) (2000). The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

Entered this 4th day of December, 2000.

BY THE STATE RECORDS COMMITTEE

Betsy L. Ross, Chairperson
State Records Committee