State Records Committee Appeal Decision 2017-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROBERT BAKER, Petitioner, v.

BOARD OF PARDONS AND PAROLE, Respondent.

DECISION AND ORDER

Case No. 17-14

By this appeal, Petitioner Robert Baker seeks access to records held by Respondent, the Board of Pardons and Parole (“Board”).

FACTS

In a letter dated September 15, 2016, Mr. Baker made a request to the Board for records pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Baker requested “Copies of 200+ case files supplied by PEW Research Foundation” and “Copies of Correlation Analysis” for the purpose of “Civil Litigation”. In a letter dated September 29, 2016, Mr. Greg Johnson, Director of Administrative Services, acting on behalf of the Board, required a prepayment of $510 pursuant to Utah Code § 63G-2-203(8) in order to provide the public portions of 204 files, and indicated that processing the voluminous request would take longer than 10 days.

On December 19, 2016, Mr. Baker amended his GRAMA request clarifying what information he is requesting. He also suggested, the fee could be reduced by providing the files on a compact disc as per Utah Code § 63G-2-201(11), and asserted that the fee should be waived because he is impecunious and his legal rights are directly implicated by the requested information under Utah Code § 63G-2-203(4)(c). Mr. Johnson, in a letter dated December 22, 2016, denied the amended request, noting that additional information would be necessary to determine that Mr. Baker’s legal rights are implicated and that he is impecunious. Mr. Baker appealed this denial to Ms. Angela Micklos on January 7, 2017, claiming he needs the requested information for his federal civil rights case and his inmate account confirms that he is indigent. Ms. Micklos affirmed the fee waiver denial on January 30, 2017, and indicated that due to the voluminous quantity of files the Board will treat them as separately requests and will respond to each sequentially in accordance with Utah Code §§ 63G-2-204(5)(c) and -204(6)(c)(iv). On February 7, 2017, the Board sent a letter to Mr. Baker informing him that the Department of Correction’s policy prohibits him from receiving the public records from the first file processed by the Board because of prison security concerns.

Mr. Baker filed an appeal with the State Records Committee (“Committee”). On April 13, 2017, the Committee held a hearing where the parties presented their arguments. After considering the arguments and reviewing all written materials, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Utah Code Subsection 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. The governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that: (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).

3. GRAMA specifies “A person who believes that there has been an unreasonable denial of a fee waiver under Subsection (4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Section 63G-2-205.” Utah Code § 63G-2-203(6)(a).

4. Concerning the Board’s claim of extraordinary circumstances, GRAMA allows a governmental entity to delay approval or denial for an additional period of time as specified in Subsection (6) if the governmental entity determines that the request is voluminous quantity of records or a record series containing a substantial number of records…” Utah Code § 63G-2-204(5).

5. GRAMA further specifies that a governmental entity may treat a request for multiple records as a separate record requests, and respond sequentially to each request;” Utah Code § 63G-2-401(1)(b).

6. Counsel for the Board indicated they will provide the Public portions of records to Mr. baker at a rate of one file per week, and bill him for each response. The board stipulated that Mr. Baker is indigent, but argued that his legal rights are not directly implicated by the information in the record and he is therefore not entitled to a fee waiver.

7. The Committee determined that a governmental entity has discretion to grant or deny a fee waiver. The Committee noted Salt Lake City Corporation v. Jordan River Restoration Network, 3rd Judicial Dist. Case No. 100910873 (Utah Dec. 31, 2015), where the Court found that it was reasonable to deny a fee waiver request and delay disclosure “given the voluminous nature of the request and the effort necessary to compile the requested documents.”

8. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the Petitioner’s legal rights are not directly implicated by the information. The Committee also determined that the Board’s method of response is also reasonable.

9. The Committee notes they have no authority over whether the Department of Corrections allows a prisoner to possess records, and the issue of the classification and redaction of the requested records is not before them.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner Robert Baker 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 April 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee