State Records Committee Appeal Decision 2009-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ANTEO T. REESE, Petitioner, vs.

UTAH BOARD OF PARDONS AND PAROLE, Respondent.

DECISION AND ORDER

Case No. 09-08

By this appeal, Anteo T. Reese (“Reese”) seeks to receive, free of charge, a written transcript of the April 7, 2009 hearing of the Utah Board of Pardons and Parole (“Board”).

FACTS

On or about April 25, 2009, Reese requested a “written copy of my Board of Pardons Hearing transcript” held on April 7, 2009. In a letter dated May 4, 2009, the Board responded to Reese indicating that a cassette tape or an audio compact disc of the hearing would be provided to him for a prepaid fee of $10.00. The Board also indicated that it would provide a typewritten transcript at a cost of $2.25 per page, the rate charged by a court reporter.

Reese appealed the Board’s decision and requested a waiver of the fee for a written transcript. The appeal was denied by Curt Garner, Chairman of the Board, in a letter dated May 20, 2009. In his letter, Mr. Garner referenced Utah Code Ann. § 77-27-8(3) stating: “when a party in interest affirms by affidavit that he is unable to pay for a transcript or copy of the record, which is necessary for the further proceedings …the Board may order the reporter to furnish to the party in interest a transcript or copy of the record…” Mr. Garner indicated that the Board was not obligated to provide Reese with a written copy of the transcript free of charge and that the Board was not willing to do so in this instance. A tape or CD recording of the hearing could be provided free of charge in this instance. Reese now appeals the Board’s denial to the State Records Committee. After having reviewed the materials submitted by the parties, and having heard oral argument and testimony on July 9, 2009, the Committee 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. §§ 63G-2-302, -303, -304 and -305.

2. In response to a records request, a governmental entity is not required to: (1) create a record; (2) compile, format, manipulate, package, summarize, or tailor information; or (3) provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code Ann. § 63G-2-201(8)(a)(i-iii).

3. During the hearing, the Board claimed that it did not have a written transcript of Reese’s April 7, 2009 hearing, but it was willing to provide Reese with a transcript if Reese was willing to pay the costs of transcription.

4. A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that: (1) the individual requesting the record is the subject of the record; or (2) the requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code Ann. § 63G-2-203(4)(b) & (c).

5. Utah Code Ann. § 77-27-8(3) similarly provides that the Board: “may order the reporter to furnish to the party in interest a transcript, or a copy of the record, or so much of it as is reasonably applicable to any further proceedings, or a copy of the recording, at the expense of the state, to the party in interest.”

6. The Committee is persuaded that the Board does not maintain a written transcript of the April 7, 2009 hearing. Additionally, pursuant to the plain language of Utah Code Ann. §§ 63G-2-203(4) and 77-27-8(3), the Board has the discretion to determine whether to waive the fee for providing a written transcript to Reese. Although the Committee strongly encourages the Board to reconsider Reese’s request to provide a transcript free of charge, pursuant to Utah Code Ann. § 63G-2-203(4), the Board is not obligated to fulfill Reese’s request.

ORDER

THEREFORE, IT IS ORDERED THAT: (1) The determination of the Utah Board of Pardons and Parole to deny Anteo T. Reese’s request to receive a written transcript of the April 7, 2009 Utah Board of Pardons meeting is upheld Pursuant to Utah Code Ann. § 63G-2-201(8)(a)(i-iii); and (2) The determination of the Utah Board of Pardons and Parole to the deny the request for a fee waiver is upheld pursuant to Utah Code Ann. §§ 63G-2-203(4) and 77-27-8(3). Accordingly, the appeal of Anteo T. Reese is denied.

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. § 63G-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. § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) 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 Committee may do either or both of the following: (1) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) 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 20th day of July 2009.

BY THE STATE RECORDS COMMITTEE

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SCOTT WHITTAKER, Chairperson
State Records Committee