State Records Committee Appeal 03-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SEAN TIMOTHY HUGHES, Appellant, vs.
UTAH DEPARTMENT OF CORRECTIONS, Appellee.

DECISION AND ORDER
Case No. 03-06

By this appeal, inmate Sean Timothy Hughes seeks copies of the audio tapes made during nine disciplinary hearings. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on April 23, 2003, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act ("GRAMA") specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). Records that are not public are designated as either "private," "protected," or "controlled." See Utah Code Ann. 63-2-302, -303 and -304.

2. The Department does not maintain that the records sought by Mr. Hughes are private, protected or controlled in their entirety. Indeed, the Department expressed a willingness to segregate those portions of the record to which Mr. Hughes was entitled to from the portions of those tapes to which he was not entitled. See Utah Code Ann. 63-2-307(1) ("the governmental entity shall allow access to information in the record that the requester is entitled to inspect . . .").

3. The central issue in this case is whether the Department unreasonably denied Mr. Hughes a fee waiver under Utah Code Ann. 63-2-203(4). This provision of the Act states: (4) 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, 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. Utah Code Ann. 63-2-203(4).

The Department did not dispute the fact that Mr. Hughes is impecunious and, based on the evidence presented, the Committee is persuaded that his legal rights are directly implicated by the information in the record.

4. Specifically, the Committee heard compelling testimony that the information sought supported a specific legal theory that Mr. Hughes intends to present in an upcoming parole hearing. Furthermore, the Department acknowledged that the starting and ending points of the tape to which Mr. Hughes was entitled could be identified by a tape counter. Finally, Mr. Hughes is not seeking a voluminous amount of information that is not easily obtained by the Department. Rather, Mr. Hughes' request is for specific portions of nine tapes which are owned and stored by the Department.

5. The Committee acknowledges that the Department is not required to grant a fee waiver in all cases. Under these unique circumstances, however, the Committee believes that the Department's failure to grant a fee waiver was unreasonable. See Utah Code Ann. ' 63-2-203(6).

ORDER

WHEREFORE, IT IS ORDERED THAT the Department of Corrections unreasonably denied Appellant a fee waiver for copies of nine tapes which directly implicate his legal rights. The decision of the Department to deny Mr. Hughes copies of the portions of these tapes to which he is entitled is reversed.

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. 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.

PENALTY NOTICE

Pursuant to Utah Code Ann. 63-2-403(14), the government entity herein shall comply with the order of the records committee and, if records are ordered to be produced, file: (i) a notice of compliance with the records committee upon production of the records; or (ii) a notice of intent to appeal. If the government entity fails to file a notice of compliance or a notice of intent to appeal, the Records Committee may do either or both of the following: (a) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (b) send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies entities.

Entered this 29th day of April, 2003.

BY THE STATE RECORDS COMMITTEE

Robert Woodhead, Chairman
State Records Committee