Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 94-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

THOMAS R. GARCIA, Appellant, v.

UTAH DEPARTMENT OF CORRECTIONS, Appellee.

DECISION AND ORDER, Case No. 94-14

Appellant Thomas R. Garcia, through counsel, seeks an order reversing Appellee's denial of a fee waiver for copying and providing to Appellee, through counsel, certain medical records regarding Appellant that are held by Appellee.

The indicated medical records were requested by counsel in behalf of Appellant under the Utah Government Records Access and Management Act, Utah Code Ann. 63-2-101 et seq. (GRAMA). A waiver of fees for copy costs was incorporated in the request for the records. Appellee perceived the governing statute to be Utah Code Ann. 78-25-25 and supplied records to Appellant's counsel under that section, which requires requesting attorneys to pay the cost of copying all medical records copied and supplied under the section. A bill in the amount of $194.90 for copying the records was sent to Appellant's counsel along with the records. Appellee did not inform Appellant's counsel prior to copying and sending the records that it was processing the request under 78-25-25 rather than GRAMA, that it was denying the request for a fee waiver, or what the copy costs would be.

The State Records Committee, having reviewed the written materials submitted by the parties, and having heard testimony and argument, now issues the following decision and order.

STATEMENT OF REASONS FOR DECISION

The appeal is granted. Section 78-25-25 is inapplicable because the records are not held by persons covered by that section, and release of the records under that section was improper. The request for records was made under GRAMA, along with a request for a waiver of copy costs under Utah Code Ann. 63-2- 203(4). For Appellee to process the request under another statute that required the requesting attorney to pay copy costs, and impliedly deny the request for a fee waiver by making and sending the copies without first informing Appellant's counsel 1) that the copies would not be provided under statutory provisions cited in the request, 2) that the fee waiver was denied, and 3) what the cost of the copies would be, is contrary to the interest of justice. Therefore, Appellant is estopped to deny the fee waiver requested by Appellant.

ORDER

WHEREFORE, it is ordered that Appellant's appeal is granted and the denial of the fee waiver reversed. Since the records improperly supplied under 78-25-25 include records not properly releasable under GRAMA, Appellant is ordered to return to Appellee all records, or copies thereof, that Appellee supplied under 78-25-25, not making or retaining any copies thereof. Appellee is ordered promptly to sift the records returned and delete any not properly releasable under GRAMA and then promptly supply to Appellant, or his counsel if he is represented by counsel, all of the copies of records properly releasable pursuant to Appellant's request based on GRAMA.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to District Court. The petition for review must be filed no later than 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 by Utah Code Ann 63-2-402 and 63-2-502(7). 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.

Entered this 20th day of October, 1994.

MAX J. EVANS,
Chair, State Records Committee.