Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2010-3

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LAWRENCE JACKSON, Petitioner, vs.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 10-3

By this appeal, Petitioner, Lawrence Jackson, seeks a waiver of fees charged by the Utah Department of Corrections (“Corrections”) to cover the actual cost of providing Mr. Jackson records he has requested.

FACTS

On or about November 3, 2009, Mr. Jackson submitted a request to Corrections for ten separate statistical data sets regarding prison inmates confined at Utah State Prison located in Draper, Utah. Mr. Jackson requested in part: (1) the number of “black inmates at the Utah State Prison; (2) the “number of black inmates that work for [Corrections];” (3) a list of “black inmates who work at skilled job positions;” (4) a list of inmates working for Corrections with high school and post-high school education; (5) a list of “highest payed (sic) inmates positions of employment, and how many of these employed are black;” (6) how many recently hired inmates for the Corrections furniture and upholstery shop were more qualified for the job positions than Mr. Jackson; and (7) of those recent hires, “how many were black.”

In a letter dated November 24, 2009, Mike Haddon, Deputy Director for Administration of Corrections, responded to Mr. Jackson’s request. Mr. Haddon provided records and/or statistical information as to the number of inmates housed at the Draper prison location and the percentage of inmates who were “black.” In his letter, he indicated that the majority of Mr. Jackson’s requests could only be fulfilled and/or provided after lengthy statistical analysis and writing multiple data extraction programs. He further indicated that while Corrections was not required to compile, format, manipulate, package, summarize, or tailor information pursuant to Utah Code Ann. § 63G-2-201(8), Corrections would perform the statistical analysis requested by Mr. Jackson upon receipt of the future estimated fees/costs of $150.00 pursuant to Utah Code Ann. § 63G-2–203(8)(a)(i).

Mr. Jackson subsequently re-submitted his requests requesting the data be provided without charge citing Utah Code Ann. § 63G-2-203(4). This request was rejected by Mr. Haddon in a letter dated December 5, 2009. Mr. Haddon indicated that based on his review of the issues and applicable GRAMA statutes, Mr. Jackson’s request did not primarily benefit the public, Mr. Jackson was not the subject of the requested records, and his legal rights were not directly implicated. Mr. Haddon further indicated that while Mr. Jackson may be indigent, Utah Code Ann. § 63G-2-203(4) gave Corrections the discretion concerning whether or not to fulfill his request without charge, and based upon policy reasons, Corrections would not waive the $150.00 fee.

Mr. Jackson now appeals to the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on February 11, 2010, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that a governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code Ann. § 63G-2-203(1). This fee shall be approved by the governmental entity’s executive officer. Id.

2. In the case of fees for a record that is the result of computer output other than word processing, 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 a particular user may be charged. Utah Code Ann. § 63G-2-203(2)(a)(iii).

3. A governmental entity may fulfill a record request without charge, and is encouraged to do so when it determines that: (1) releasing the record primarily benefits the public rather than a person; (2) the individual requesting the record is the subject of the record; or (3) the person’s legal rights are implicated. Utah Code Ann. § 63G-2-203(4).

4. A governmental entity may require payment of past fees and future estimated fees before beginning to process a request if the fees are expected to exceed $50.00. Utah Code Ann. § 63G-2-203(8).

5. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code Ann. § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code Ann. § 63G-2-205. See, Utah Code Ann. § 63G-2-203(6). The adjudicative body hearing the appeal “has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied,” Utah Code Ann. § 63G-2-203(6)(b).

6. At the hearing, Corrections argued that it would incur actual costs of at least $150.00 because it would be required to expend several hours programming, compiling, formatting, and packaging Mr. Jackson’s requests. Because of the significant cost and time associated with fulfilling Mr. Jackson’s requests, Corrections determined that it was proper to require Mr. Jackson to pay the estimated future fees of $150.00 before beginning to process his request pursuant to Utah Code Ann. § 63G-2-203(8).

7. Corrections further argued that the language of Subsections –203(1) and (2) and the use of the word “may” denotes the Legislature’s intent that governmental entities have discretionary authority as to whether or not records should be provided without charge. Therefore, Corrections was not statutorily obligated to provide the records requested by Mr. Jackson without charge, even if he met all the conditions of Utah Code Ann. § 63G-2-203(4).

8. The Committee having reviewed the submissions of the party’s and having heard argument at the hearing of this matter, finds that based upon the circumstances of the present case, Corrections’ denial of Mr. Jackson’s request for a fee waiver was unreasonable. Mr. Jackson is impecunious, Mr. Jackson’s legal rights may be directly implicated by the information in the records he seeks, and Mr. Jackson’s request may primarily benefit the public rather than himself because of the subject matter of the request. Accordingly, because Mr. Jackson meets the criteria of Utah Code Ann. § 63G-2-203(4)(a) and (c) and because Corrections offered no reason for the denial other than that the decision is discretionary with the agency, and would result in requiring Corrections to do research for any prisoner wanting any statistical analysis, the Committee finds the determination by the Department to deny Mr. Jackson a waiver of fees to fulfill his request was not “reasonable.”

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Lawrence Jackson is upheld and the $150.00 estimated fee for actual costs of Respondent, the Department of Corrections shall be waived and Corrections shall provide Mr. Jackson the records/data responsive to his request without charge.

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 governmental 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 Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental 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.

Dated this 18th day of February 2010.
____________________________
SCOTT WHITTAKER, Chairman
State Records Committee