Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2012-23

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL LUESSE, Petitioner, vs.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 12-23

By this appeal, Petitioner, Michael Luesse, seeks to appeal the denial of a fee waiver by the Utah Department of Corrections (“Corrections”) for his records requests.

FACTS

Between April 24, 2012 and May 10, 2012, Mr. Luesse, an inmate at the Utah State Prison, submitted multiple records requests pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Luesse requested copies of specific Corrections’ policy manuals and for his “c-note history.” Mr. Luesse also requested that the records be provided to him without any charge pursuant to Utah Code § 63G-2-203(4)(c). Corrections denied Mr. Luesse’s request for a fee waiver finding that pursuant to General Order # DIOGO 12-015 with the Division of Institutional Operations effective June 8, 2012, indigent inmates were allowed a maximum of 100 free pages per calendar year, requests above 100 pages had to be appealed to the Administrative Services Director, and that Mr. Luesse had already exceeded the 100 page limit.

Mr. Luesse filed an appeal with Mike Haddon, Executive Coordinator for Corrections in a letter dated June 28, 2012, contending that General Order # DIOGO 12-015 could not be applied retroactively. In a letter dated July 17, 2012, Mr. Haddon denied Mr. Luesse’s appeal finding that Mr. Luesse had received a fee waiver for “more than 100 pages this year” and based upon his review of the request, he did not “believe the fee waiver denial [was] unreasonable.”
Petitioner, Michael Luesse, now appeals the denial of his request for a fee waiver to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on November 15, 2012, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that every person has the right to inspect a public record free of charge subject to the requirements of Utah Code §§ 63G-2-203 and 63G-2-204.

2. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). However, a governmental entity may not charge a fee for: (1) reviewing a record to determine whether it is subject to disclosure except as provided in Utah Code § 63G-2-203(2)(a)(ii), or (2) inspecting a record. Utah Code § 63G-2-203(5).

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 requester’s legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4).

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

5. Mr. Luesse argued that his legal rights were directly implicated by the information in the records and that he was impecunious pursuant to the requirements of Utah Code § 63G-2-203(4)(c).

6. Counsel for the Utah Department of Corrections argued that each year, numerous requests for records are made by indigent inmates, and that General Order # DIOGO 12-015 was implemented as an attempt to provide “a clear threshold where [Corrections staff members] will no longer automatically grant a fee waiver to an indigent inmate” and encourage inmates “to be accountable for the number of GRAMA requests they submit” to Corrections in a given year. Evidence was presented that Mr. Luesse had already received 275 pages of free copies Counsel also stated that Mr. Luesse’s request for a fee waiver was reviewed by Mr. Haddon on the merits of the request notwithstanding General Order # DIOGO 12-015, and that Mr. Haddon has granted fee waiver requests for inmates who have exceeded the 100 page limit. In regards to the records being requested by Mr. Luesse, testimony was given that the policy manuals could be provided for Mr. Luesse’s review free of charge and Mr. Luesse could be allowed by Corrections to have access to review his “c-note history” with his case manager also free of charge.

7. After hearing the arguments of the parties, and having reviewed their submissions, the Committee is persuaded that the denial by the Utah Department of Corrections of Mr. Luesse’s request for a fee waiver was not an unreasonable denial. However, pursuant to Utah Code § 63G-2-201(1), Mr. Luesse should be given access to the requested public records in a secure manner as determined by Corrections.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Luesse 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 § 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 § 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 27th day of November 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee