State Records Committee Appeal 2007-04

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL MCAINSH, Petitioner, vs.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 07-04

By this appeal, Michael McAinsh seeks access to records containing raw data used in the 2005 sex offender treatment and recidivism report. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on April 12, 2007, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act ("GRAMA") specifies "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. The Department denied Mr. McAinsh the records he seeks on the grounds that said raw data does not meet the definition of a record. The Department is entitled to charge for the actual cost of performing the request per Utah Code Ann 63-2-203 (3)(a).

2. The Committee is persuaded that the data sought by Mr. McAinsh is in fact classified as a record as defined in Utah Code Ann. 63-2-103 (22) and is reproducible as defined by Utah Code Ann. 63-2-103(22)(a)(iii), regardless of the manner in which the data is retrieved. The Committee is further convinced that access to the records should be granted to the Petitioner. However, pursuant to Utah Code Ann. 63-2-203(2)(a)(iii) these records are the result of computer output other than word processing, and the Department is entitled to charge the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information for particular users, and the administrative costs as set forth in Subsections 63-2-203(2)(a)(i) and (ii). The Committee is not convinced that Mr. McAinsh's request would primarily benefit the public rather than an individual as contemplated by Utah Code Ann. 63-2-203(4)(a) and therefore there is no basis for a waiver of the fee.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Mr. McAinsh is affirmed in part and denied as to the waiver of fees. The Department will begin fulfilling Petitioners request as soon as the minimum fee is received from Petitioner.

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 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.

Entered this 19th day of April 2007.

BY THE STATE RECORDS COMMITTEE

Carl Albrecht, Chairperson
State Records Committee