State Records Committee Appeal 01-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ADRIAN HICKEY, Appellant, vs.

UTAH DEPARTMENT OF CORRECTIONS, Appellee.

DECISION AND ORDER
Case No. 01-03

By this appeal, inmate Adrian Hickey seeks an order compelling that Appellee, Utah Department of Corrections ("Corrections"), provide him with copies of "his" strip cell logs and recreation out-of-cell-time logs. He also requested copies of twenty-four (24) Utah Department of Corrections contracts. In conjunction with these requests, Mr. Hickey sought a fee waiver pursuant to Utah Code Ann. 63-2-203(4) and -203(6). Alternatively, Mr. Hickey requested that Corrections be ordered to make copying facilities available to him. See Utah Code Ann. 63-2-201(9). Finally, Mr. Hickey requested that Corrections make the requested documents available to him for inspection purposes pursuant to Utah Code Ann. 63-2-201(1) and -203(5)(b). Corrections denied all Mr. Hickey's requests.

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. The Utah Department of Corrections correctly denied Mr. Hickey's appeal. Regarding the logs Mr. Hickey contends are his, the Committee finds that these records were created by corrections personnel and are properly classified as protected records. If disclosed, the committee is persuaded that these records would jeopardize the safety or security of a correctional facility. See Utah Code Ann. 63-2-304(12). Among other things, these records would give an inmate the ability to predict guard patrol schedules, learn risk assessments and understand protected inmate management practices, all of which would jeopardize the security of the prison. Id.

2. Regarding the 24 contracts Mr. Hickey has requested, the Committee acknowledges that the Government Records Access Management Act ("GRAMA") states "[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).

3. Mr. Hickey's right to inspect and/or copy the contracts at issue is limited by Utah Code Ann. 63-2-203. 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).

4. 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: "(b) the individual requesting the record is the subject of the record, or an individual specified in Subsection 63-2-202(1) . . . ." 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, Corrections is not required to compile or copy these records for Mr. Hickey free of charge. For the foregoing reasons, Corrections' decision to deny Mr. Hickey's request for a fee waiver is affirmed.

5. Mr. Hickey also argues that neither the State Records Committee nor the Utah Department of Corrections has the authority to deprive of his right to inspect the contracts in question. As we have indicated in a prior appeal involving Mr. Hickey, however, GRAMA does not affect or in any way modify the terms of an offender's incarceration. Simply because an inmate has a "right" to inspect public records (or for that matter, attend a public library or drive on a public street), the exercise of this right is still subject to the terms of his or her incarceration.

6. This rationale is consistent with the recent decision of District Court Judge Frank G. Noel, in the case of Hickey v. Clinton Friel, Warden, et al., Third District Court Case No. 01090127 (Feb. 8, 2001). In that case, Mr. Hickey argued that the Department of Corrections and the Board of Pardons were obligated to transport him to the offices of the Board of Pardons so he could inspect a large volume of records. Dismissing the petition sua sponte, the court held that the Petition was without merit. Specifically, the court held: . . . more importantly, however, is that the Court feels the Petition on its face is without merit. The State Records Committee and the Chief Executive Officer of the Board of Pardons are correct as a matter of law when they state that GRAMA does not require them to transport Mr. Hickey to the location of the records . . . . Id. at 3. It is therefore reasonable to conclude that Mr. Hickey's statutory right of inspection under GRAMA remains subject to the terms of his incarceration. In the absence of the payment of a reasonable fee, it is the Committee's opinion that nothing in GRAMA requires Corrections to provide Mr. Hickey with the necessary security personnel, facilities or transportation to review the two dozen original contracts at issue this appeal. See Utah Code Ann. 63-2-201(7)(c) and -203.

7. At the hearing, Mr. Hickey explained that he may use the logs and contracts he has requested to support a civil case currently pending in District Court. He or his attorney may request these records as part of the discovery process in a manner consistent with the Utah Rules of Civil Procedure and Utah Code 63-2-207(2)(a).

ORDER

WHEREFORE, IT IS ORDERED THAT Appellant's appeal is denied and the Utah Department of Corrections' 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). 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______ day of March, 2001.

BY THE STATE RECORDS COMMITTEE

Cherie Willis, Chairperson
State Records Committee