State Records Committee Appeal 2013-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARK SHENEFELT, MANAGING EDITOR FOR THE STANDARD EXAMINER, Petitioner, vs.

WILLARD CITY, Respondent.

DECISION AND ORDER

Case No. 13-16

By this appeal, Petitioner, Mark Shenefelt, Managing Editor for The Standard Examiner, seeks access to records with Respondent, Willard City (“Willard”).

FACTS

On July 2, 2013, Mr. Shenefelt filed a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) with Willard for a police report and any associated documents regarding an incident occurring at a residence in Willard on June 27, 2013. Mr. Shenefelt stated that the incident was “newsworthy and of interest to the general public.” On July 8, 2013, Willard denied the records request claiming that the records were protected pursuant to Utah Code § 63G-2-305(10)(a). Mr. Shenefelt filed an appeal with Kenneth A. Braegger, Mayor of Willard, and the appeal was denied.

Petitioner now appeals the denial of Mr. Shenefelt’s request for records to the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony, and having reviewed in camera the disputed records, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“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. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, can be classified as protected records by a governmental entity if release of the records reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code § 63G-2-305(10).

3. Chronological logs and initial contact reports are normally public but to the extent that the record is expressly exempt from disclosure, access may be restricted under Utah Code § 63G-2-305. Utah Code § 63G-2-301(3)(g).

4. Counsel for Willard stated that the facts surrounding the incident that occurred on June 27, 2013, include a house fire and that the body of a man was discovered in the remains of the fire. Because of these circumstances, the Willard City Police Department is investigating the incident and the police investigation file should remain protected.

5. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, and reviewing a portion of the disputed records in camera, the Committee finds that the police investigation file was properly classified as a protected record pursuant to Utah Code § 63G-2-305(10)(a) except as otherwise hereafter noted.

6. An in camera review of a document characterized as an initial contact report shows that paragraphs 1, 2, 3, 5 & 6 involve information that should be public pursuant to Utah Code § 63G-2-301(3)(g), and release of the information would not reasonably be expected to interfere with Willard’s police investigation. However, Willard shall review paragraph 4 of the report for a determination of whether release of that information would reasonably be expected to interfere with the investigation and be protected pursuant to Utah Code § 63G-2-305(10)(a).

7. A copy of information supplied to a court for the purposes of obtaining a warrant, and a copy of the warrant issued by the court regarding this case was presented and reviewed by the Committee. Willard has represented that all of the information in these documents are already considered public by the court, and does not oppose releasing this document to Petitioner.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Shenefelt, Managing Editor for The Standard Examiner, is DENIED for a copy of the complete police investigation file, but is GRANTED for the initial contact report and the court warrant as detailed above.

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 3rd day of December 2013,

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Chairperson
State Records Committee