State Records Committee Appeal 01-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COLORADO LEGAL SERVICES, Appellant, vs.

UTAH DEPARTMENT OF AGRICULTURE, Appellee.

DECISION AND ORDER
Case No. 01-07

By this appeal, Colorado Legal Services ("CLS") seeks an order compelling the Utah Department of Agriculture ("Agriculture") to waive fees associated with producing certain records in its possession. These records concern the June 1998 death of migrant farm worker J. Antonio Casillas. CLS requested a fee waiver pursuant to Utah Code Ann. 63-2-203(4).

The State Records Committee, having reviewed the written materials submitted by the parties, and having heard testimony and argument on August 8, 2001, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Committee finds that the Department of Agriculture's charge of $53.65 reflects the actual cost to produce the records requested by CLS. Therefore, under Utah Code Ann. 63-2-203(6), Agriculture has the statutory discretion to fulfill the records request without charge. Specifically, this section of the Government Records Access and Management Act states as follows: A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that: (a) releasing the record primarily benefits the public rather than a person; (b) the individual requesting the record is the subject of the record is the subject of the record, or an individual specified in Subsection 63-2-202(1) or (2); or (c) the requester's legal rights are directly implicated by the information in the record, and the requester is impecunious. Id. (emphasis added). 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).

2. Accordingly, Agriculture is not required to compile or copy these records for CLS free of charge. For the foregoing reasons, Agriculture's decision to deny the CLS request for a fee waiver is affirmed. Since the Committee finds Agriculture's fee reasonable, it does not have the authority to order that the fee be waived.

ORDER

WHEREFORE, IT IS ORDERED THAT the appeal is denied and the Utah Department of Agriculture's decision to deny the requested fee waiver 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 13th day of August, 2001.

BY THE STATE RECORDS COMMITTEE

Cherie Willis, Chairperson

State Records Committee