State Records Committee Appeal Decision 2012-18

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CHRISTIAN PROBASCO, MANAGING EDITOR, SANPETE MESSENGER, Petitioner, vs.

UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.

DECISION AND ORDER

Case No. 12-18

By this appeal, Petitioner, Christian Probasco, Managing Editor for the Sanpete Messenger, seeks to appeal the denial of his request for records regarding the name of a minor involved in an auto-pedestrian accident occurring on June 5, 2012, near Fountain Green, Utah.

FACTS

On June 5, 2012, the Utah Highway Patrol responded to an auto-pedestrian accident which occurred near Fountain Green, Utah. The Department of Public Safety (“DPS”) subsequently held a press conference where a description of the accident was given but the name of the pedestrian was withheld. Mr. Probasco made a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to DPS on June 7, 2012 seeking all records and reports related to the accident. DPS denied Mr. Probasco’s request on June 11, 2012 indicating that accident reports were protected records pursuant to Former Utah Code § 63G-2-305(38). Mr. Probasco appealed this denial to Lance Davenport, DPS Commissioner, on June 13, 2012. In his appeal Mr. Probasco clarified that he was seeking the name of the pedestrian involved in the accident.

On June 27, 2012, Commissioner Davenport affirmed the previous denial and also indicated that release of the name of the minor’s name would be a “clearly unwarranted invasion” of his/her privacy pursuant to Utah Code §63G-2-302(2)(d). Petitioner now appeals DPS’s denial of the GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on September13, 2012, now issues the following Decision and Order:

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Subject to limiting provisions found in Utah Code § 41-6a-404, DPS or the responsible law enforcement agency employing the investigating peace officer, shall disclose an accident report to a member of the press or broadcast media. Utah Code § 41-6a-404(3)(a)(iv). Such release shall only include the name, age, sex and city of residence of each person involved in the accident, the make, model and year of each vehicle, the location and whether the individuals in the accident were covered by insurance. Utah Code § 41-6a-404(3)(d) (See also, Utah Code § 63G-2-305(37), “accident reports” are protected except as provided in Utah Code §§ 41-6a-404, 41-12a-202 and 78-18-13).

3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private if properly classified by the governmental entity. Utah Code § 63G-2-302(2)(d).

4. At the hearing, Counsel for DPS argued that while it had no specific policy regarding the release of names of minors, the release of the name of the pedestrian in this accident would constitute a “clearly unwarranted invasion” of the minor’s privacy because minors have heightened privacy protections and he/she was only injured. DPS further contended that the name could not be released because DPS did not have confirmation that the accident investigation had been concluded and that it was possible the pedestrian/minor was at fault and could be charged with a crime.

5. Mr. Probasco argued that he should be allowed access to the name of the minor in this accident because Utah Code § 41-6a-404(3) requires the release of the names of individuals involved in auto accidents and does not contain an exemption for the names of minors. Mr. Probasco also argued that he was entitled to receive the record/name of the minor involved in the accident pursuant to GRAMA § 63G-2-305(37) because it also does not contain an exemption to prevent the release of a minor’s name. Finally, Mr. Probasco argued that it had been a common past practice for law enforcement to provide the names of minors involved in auto accidents to the media and that DPS’s denial of access to this record was unusual and substantially deviated from past practices.

6. After hearing the arguments of the parties, and having reviewed their submissions, the Committee finds that DPS is required to release the names of individuals involved in auto accidents to the media pursuant to Utah Code §§ 63G-2-305(37) and 41-6a-404(3)(d). The Committee holds that insufficient evidence was presented to demonstrate that the release of the name of the minor involved in this case would constitute a “clearly unwarranted invasion of personal privacy” pursuant to Utah Code § 63G-2-302(2)(d), and that no credible evidence was presented that any investigations or criminal charges were pending against the minor in this case.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Christian Probasco, Managing Editor for the Sanpete Messenger, is upheld and that the Utah Department of Public Safety shall release all records responsive to Petitioner’s request after having first redacted any information required by Utah Code §41-6a-404.

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 24th day of September, 2012.

BY THE STATE RECORDS COMMITTEE

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BETSY ROSS, Chairperson
State Records Committee