(dissenting):
I respectfully dissent from the majority opinion. In particular, I disagree with the majority’s characterization of the issues presented on appeal. The majority focuses primarily on “whether the Board has a constitutional duty to continue a parole hearing when the inmate notices a document is missing from his file, even if the inmate does not request a continuance when given the opportunity.” I essentially agree that the Board has no such “constitutional duty.” However, I do not agree that the Board gave Peterson an opportunity to request a continuance once he alerted the hearing officer that his file lacked the Felton information or that he waived his right to have that information before the Board. Thus, our focus should be whether Peterson’s due process rights were violated and, if so, whether he waived them in light of the colloquy between Peterson and the hearing officer concerning the Felton materials.1
In State v. Rawlings, 893 P.2d 1063 (Utah App.1995), this court noted:
“a defendant may waive his or her constitutional right to due process. However, ‘[ujnder the due process clause, [a defendant is] entitled to have [adequate notice] imparted to him [or her]; that he [or she] might make an intelligent and informed decision as to whether to waive his [or her] constitutional right to a ... hearing.’ ”
Id. at 1070 (alterations in original) (citation omitted). Moreover, the propriety of extending due process to Board proceedings has been established by the Utah Supreme Court, which declared: “[D]ue process pursuant to article 1, section 7 of the Utah Constitution requires that the inmate know what information the Board will be considering at the hearing and that the inmate know soon enough in advance to have a reasonable opportunity to prepare responses and rebuttal of inaccuracies.” Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 909 (Utah 1993) (emphasis added) (footnote omitted).
At his hearing, Peterson was given materials not previously disclosed to him. He summarily reviewed the materials and then, after a lengthy colloquy during which the hearing officer carefully protected Peterson’s due process rights, acknowledged he was ready to proceed. The hearing officer noted Peterson’s participation in certain prison programs, invited him to tell her about other programs, and gave him two opportunities to make “any other comments.” Yet, as the hearing progressed, Peterson noted that reports from Felton, his therapist, were not in the file.2 The Board argues that both Peterson’s statements and his colloquy with the hearing officer amount to a waiver of any claim he has to have the Board consider the Felton documents in a hearing context in his presence. However, Peterson’s statements and colloquy about the Felton documents are, at best, ambiguous and in no way amount to a knowing and intelligent waiver of his due process claim. At one point during the hearing Peterson noted,
What get’s me with um, all of the paper work that I’ve received, there is nothing in there from my psychologist’s [sic].... I’ve been seeing a therapist name Tom Felton for two years now. And there is no records [sic] in here what-so-ever that I’ve been seeing him. Lynette3 made a comment throughout the report saying that there was no record showing that I had been seen by Tom Felton. She is the one that recommended me to him, referred me to him. So I don’t know what kind of, why she would even type something like that when she knows for a fact that I see this *154man once a week, and um, at one point, I was actually seeing him twice a week....
Despite this revelation, the hearing officer did not even make a simple inquiry of Peterson to determine whether he wished to proceed in the absence of the Felton documents, let alone continue the hearing. Instead, the hearing officer simply said “Okay, thank you. Anything else before we get to the psychological assessment that you want to state as far as your institutional report goes?”
This exchange stands in stark contrast to the colloquy that occurred at the onset of the hearing. There, the hearing officer went to great lengths to ascertain whether Peterson wanted to continue his parole hearing because he was handed materials upon entering the hearing, giving him insufficient time to prepare. No such protection was given after Peterson informed the hearing officer of the missing Felton information that, allegedly, Ms. Vance had erroneously excluded from his record.4
The Utah Constitution guarantees prisoners the right to rebut inaccuracies in the information considered at the inmate’s hearing. See Utah Const, art. I, § 7; Labrmn, 870 P.2d at 909. As the majority notes, the likelihood of errors in an inmate’s file renders it
“essential to both the form and substance of a fair proceeding that the defendant have the right to point out errors, misinterpretations, or even to demonstrate that he is not in fact the person who is the subject of the report. Such errors are not unknown. Particularly when the criminal justice system is being pressed to deal with ever more criminal defendants on an impersonal basis ..., the possibility of error becomes even greater.”
Labrmn, 870 P.2d at 909 (quoting State v. Casarez, 656 P.2d 1005, 1008 (Utah 1982)). The majority opinion also cites Neel v. Holden, 886 P.2d 1097, 1103 (Utah 1994), and Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 13, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979), for the proposition that erroneous decisions based on inaccurate factual information compel the extension of due process rights to parole hearings. Obviously, Peterson highlighted a significant inaccuracy in his file.
Though the record does not show when or how Peterson discovered the inaccuracy and omission, under the circumstances, the hearing officer could easily have ascertained whether Peterson wanted to proceed in the absence of the Felton documents, and whether he waived any due process claim, by the simple expedient of asking him a couple of questions specifically addressing his concerns.5 The majority notes that “Peterson did point out inaccuracies in his file during his discussion with the hearing officer regarding the missing Felton information. Peterson told the hearing officer the file erroneously stated he had not counseled with Felton, and then, in detail, explained how often he had seen Felton.” However, at a minimum, Peterson should have been permitted to obtain the omitted documentation. It makes little sense to carefully protect Peterson’s due process rights with reference to documents containing facts with which he was familiar and ignore those rights with reference to information totally omitted.
The Board’s subsequent Special Attention Review consideration of the Felton evidence, out of Peterson’s presence, does not remedy the due process violation committed here.6 *155As determined in Labrum, an inmate must be provided a reasonable opportunity, with proper notice having been given, to “prepare responses and rebuttal of inaccuracies.” 870 P.2d at 909. Because the Board’s Special Attention Review does not require the presence of the inmate, that proceeding gave Peterson no opportunity to challenge inaccuracies, and thus did not remedy the initial due process violation.
Obviously, the foregoing analysis does not remotely suggest an affirmative obligation on the Board’s part to continue a hearing, nor does it suggest that a constitutional right cannot be waived. It does, however, suggest that where waiver is relied upon (as here by both the Board and the majority), that waiver must have in fact occurred.
Addressing Peterson’s concerns regarding the rehearing, the trial court determined that he was entitled to a new hearing to “appear in person to address evidence related to his counseling with Thomas Latón Felton, and the possible affect [sic] this evidence may have on the Board’s consideration of [him].” Peterson contends that it would be meaningless to hold another hearing unless it was plenary. I disagree. Peterson’s only complaint with the proceedings before the Board was its failure to consider evidence from Mr. Felton under circumstances where he can participate. Peterson fails to explain why the evidence regarding his sessions with Fel-ton must be heard in conjunction with evidence given at his first hearing. Moreover, he fails to persuasively demonstrate why, if at all, a plenary hearing, rather than a hearing to consider the Felton evidence alone, is necessary to remedy the due process violation in this instance.7 Thus, he has not supported his request for a plenary hearing. Unlike his previous hearing, Peterson would have the opportunity to appear before the Board and present evidence concerning his counseling sessions at a hearing for that specific purpose, thereby remedying the due process violation about which Peterson complains.
Accordingly, I would affirm the trial court’s order in its entirety.
.On appeal, the Board claims the trial court imposed an “affirmative constitutional duty to seek out and obtain evidence that an inmate mentions but does not present." In response, Peterson argues that the trial court did not impose an affirmative information gathering duty on the Board. I agree. The subject order merely states that "[t]he Board should have provided additional time to Mr. Peterson to acquire information and prepare.” Thus, the question of the Board's constitutional duty, if any, to assist in information gathering in preparation for a parole hearing is not before us, and does not warrant consideration.
. It is undisputed that Peterson was entitled to have the Board consider the Felton reports.
. At the relevant time, Lynette Vance was Peterson's caseworker. The record does not reflect when or how Peterson became aware of the inaccuracy.
.The trial court recognized the hearing officer’s disinterest in Peterson’s concern over the Felton information:
Moreover, [Peterson] recognized at the hearing that Mr. Felton’s information wasn't in the file at all, and he brought that to the Hearing Officer's attention. The Hearing Officer saw that need for a continuance. And instead of doing what procedurally was correct, the Hearing Officer laid it on his lap. And that is backwards. They know what procedural due process is about, and they ought to afford it without the prisoner being put in that position.
. Contrary to the Board's assertion, this would not create an affirmative obligation on the Board to request a continuance sua sponte.
. While the matter was pending in the trial court, the Board held a Special Attention Review to review evidence from Mr. Felton. Pursuant to Utah Administrative Code Rule 671-311-3, a Special Attention Review is “processed administratively based on written reports supplied to the Board without the personal appearance of the offender.”
. Peterson relies on Labrum v. Utah State Board of Pardons, 870 P.2d 902, 914 (Utah 1993), and Neel v. Holden, 886 P.2d 1097, 1105 (Utah 1994), to support his assertion that “the Utah Supreme Court has ordered full rehearings before the Board in cases where due process was denied.” However, the due process violations at issue in both Labrum and Neel were far more egregious than the relatively minor violation presented for our review.