Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2004-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JEREMY BECKHAM, Appellant vs.
UNIVERSITY OF UTAH, Appellee.

DECISION AND ORDER
Case No. 04-09

By this appeal, Jeremy Beckham seeks an order requiring that the University of Utah waive fees associated with producing "all approved protocols for all research currently utilizing baboons and/or macaques." In Case No. 04-01, the Committee agreed that at least some of the information sought by Mr. Beckham has properly been classified as protected, but was not convinced that the University has fulfilled its responsibility under Utah Code 63-2-307(1) to "allow access to information in the record that the requester is entitled to inspect under [GRAMA] . . . ." The Committee then ordered the University to redact the information it believed was necessary to maintain its protected status under Utah Code 63-2-304(40), as well as -304(36) and -304(10) and (11). The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on September 16, 2004, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Committee finds that the University of Utah has the statutory right to charge a reasonable fee to cover the actual cost of segregating information Mr. Beckham is entitled to inspect from information that Mr. Beckham is not entitled to inspect. See Utah Code Ann. 63-2-203 and 63-2-307. The actual costs under Section 203 may include the following:
(a) the cost of staff time for . . . tailoring the record either into an organization . . . to meet the person's request; [and]
(b) the cost of staff time for search, retrieval, and other direct administrative costs for complying with a request. The hourly charge may not exceed the salary of the lowest paid employee who, in the discretion of the custodian of records, has the necessary skill and training to perform the request; provided, however, that no charge may be made for the first quarter hour of staff time . . . .Utah Code Ann. 63-2-203(2) (emphasis added).

2. We note that "a governmental entity may not charge a fee for: (a) reviewing a record to determine whether it is subject to disclosure, except as permitted by [63-2-203(2)(b)]; or (b) inspecting a record." Utah Code Ann. 63-2-203(5). Although the University has not made such a determination in this case, "[a] government entity may fulfill a record request without charge and is encouraged to do so when it determines that releasing the record primarily benefits the public rather than a person . . . ." Utah Code Ann. 63-2-203(4).

3. The term "may," according to its ordinary construction "means permissive, and it should receive that interpretation unless such a construction would be obviously repugnant to the intention of the Legislature or would lead to some other inconvenience or absurdity." Crockett v. Crockett, 836 P.2d 818, 820 (Utah Ct. App. 1992). Given the permissive language of the statute, the University is not required to compile, redact and copy these records for Mr. Beckham free of charge.

4. In this unique circumstance, scientists, technicians and lawyers are the lowest paid employees of the University who have the necessary skill and training to perform the review of the requested records necessary to identify the portions that must be redacted to protect the University's intellectual property and other information protected by GRAMA. After considering the evidence, the Committee is persuaded that the segregation and redaction fees detailed by the University are reasonable. Therefore, we affirm the University's decision to deny Mr. Beckham's request for a fee waiver.

ORDER

WHEREFORE, IT IS ORDERED THAT Mr. Beckham's appeal 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 Ann. 63-2-404. 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.

Entered this 21st day of September, 2004.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chair
State Records Committee