State Records Committee Appeal Decision 2015-23

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JAMIS JOHNSON, Petitioner, v.

UTAH DEPARTMENT OF CORRECTIONS Respondent.

DECISION AND ORDER

Case No. 15-23

By this appeal, Petitioner, Jamis Johnson, seeks a fee waiver for access to records allegedly held by Respondent, Utah Department of Corrections.

FACTS

On or about April 30, 2015, Mr. Johnson submitted two records requests to the Utah Department of Corrections ("Corrections"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Johnson requested “detailed field notes” and emails “sent & received by AP&P officers – Mark Breinholt, Troy Staker, Unknown Wilson (Millard County)” wherein Mr. Johnson was subject matter of the records. In response to Mr. Johnson’s requests, Corrections’ responses can be summarized as follows: (1) Corrections has located approximately 94 pages of records in response to the request; and (2) Mr. Johnson is not entitled to fee waivers for the requested records, and the fee must be paid prior to the records being released pursuant to Corrections’ policies.

Mr. Johnson filed an appeal with the State Records Committee (“Committee”) concerning Corrections denial of his fee waiver request. The Committee having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, on August 13, 2015, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Every 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 Utah Code §§ 63G-2-203 and -204. Utah Code § 63G-2-201(1). Utah Code § 63G-2-203(1) provides that a governmental entity “may charge a reasonable fee to cover the governmental entity’s cost of providing a record.” Actual costs may include the cost of staff time for “compiling, formatting, manipulating, packaging, summarizing or tailoring the record” into an organization to meet the person’s request, and the cost of staff time for search, retrieval, and other direct administrative costs for complying with the request. See, Utah Code § 63G-2-203(2)(a)(i) & (ii).

2. 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 § 63G-2-203(4)(b) & (c).

3. Under GRAMA, the discretion for granting a fee waiver is essentially left to the governmental entity providing the record. Corrections outlined its procedures for granting fee waivers including a policy decision to not charge impecunious prisoners copy costs for the first 100 pages of documents received from Corrections annually. The standard of review for the Committee is to determine whether Corrections’ decision denying Mr. Johnson’s request for a fee waiver was an “unreasonable denial of a fee waiver.” See, Utah Code § 63G-2-203(6)(a). After reviewing the arguments of the parties, the Committee finds that Corrections’ decision denying Mr. Johnson’s request for a fee waiver was not an unreasonable denial.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jamis Johnson, is DENIED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 24th day of August, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee