State Records Committee Appeal Decision 2014-04

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JESSICA PHILLIPS, Petitioner, vs.

WEST JORDAN POLICE DEPARTMENT, Respondent.

DECISION AND ORDER

Case No. 14 - 04

By this appeal, Petitioner, Jessica Phillips (“Ms. Phillips”), seeks access to records from Respondent, West Jordan Police Department (“Department”), pursuant to Utah’s Government Records Access and Management Act (“GRAMA”).

FACTS

By letter dated November 11, 2013 the Petitioner, by and through her attorney, submitted a GRAMA request to the Records Custodian of the West Jordan Police Department requesting “a copy of any video and audio recording from Officer D. Saunders’s patrol vehicle dashboard or any other camera and any video and/or audio recordings from any other officer who responded to the scene” of the petitioner’s DUI arrest on October 12, 2013. Additionally, the following records were also requested - “any audio and video of the room in which the intoxilyzer was administered or any other room, e.g. the booking area, in which the [Petitioner] was held.”

The Petitioner, by and through her attorney, had previously requested on October 16, 2013 these very same records through the rules of criminal discovery in the matter of West Jordan City v. Jessica Phillips, in the West Jordan Justice Court, Case No. 135307985.

On November 14, 2013 the West Jordan Police informed the Petitioner, “At this time, the case is still active. Any and all information received at this time must be done through our attorney’s office via discovery”. By letter dated November 19, 2013, Robert Thorup, Deputy City Attorney for the City of West Jordan, additionally informed the Petitioner that “We are declining to respond to your Government Records Access and Management Act request because it seeks production of records relevant to litigation in which the City and the requestor’s client are parties. The requested records are properly sought by means of the discovery provisions of the Utah Rule of Criminal Procedure.”

On or about December 2, 2013 Petitioner appealed this matter to the City Manager of the City of West Jordan.

On December 5, 2013 the City Manager determined the appeal was moot, stating that the City Manager was “informed that the requested audio and video records were sought by [Petitioner] through discovery filed pursuant to the Utah Rules of Criminal Procedure, and that the audio and video records that exist have been sent to [Petitioner] by the City Prosecutor in response to said discovery requests. Therefore I find the appeal under GRAMA to be moot, and it is therefore denied.”

On December 10, 2013 the West Jordan City Prosecutor sent the audio/video records to the Petitioner’s attorney pursuant to the criminal discovery process.

Petitioner now appeals the denial of the GRAMA request to the State Records Committee (the “Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument of the parties on March 19, 2014, 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).

2. GRAMA further provides that “[t]he disclosure of records to which access is governed or limited pursuant to court rule....is governed by the specific provisions of that....rule....” Utah Code Ann. §63G-2-201(6)(a). GRAMA applies to records which are governed by a court rule insofar as GRAMA is not inconsistent with the court rule. Utah Code Ann. §63G-2-201(6)(b)

3. GRAMA addresses discovery in the courts at Utah Code Ann. §63G-2-207 stating that “Subpoenas and other methods of discovery under the state .....rules of ....criminal procedure are not written requests under Section 63G-2-204.” And at §63G-2-207(c)(1) “Unless a court or administrative law judge imposes limitations in a restrictive order, this section does not limit the right to obtain records through procedures set forth in [GRAMA].”

4. While the Petitioner did eventually receive the requested records through the criminal discovery process, the matter is not moot for determination by the Committee since the obligation of the Committee is to address the appeal of denial of public records in this matter. The Committee concludes the requested records are public under Utah Code 63G-2-301(3)(g) and not classified by the City of West Jordan as other than public and should have been provided through the GRAMA process. In general, the right to access public government records is not lost, and may not be impaired, when a citizen is involved in litigation with a governmental entity that maintains those records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of the Petitioner, Jessica Phillips, is GRANTED and the City shall provide the Petitioner with a copy of the records pursuant to the GRAMA request.

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.1

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 28th day of March, 2014
BY THE STATE RECORDS COMMITTEE

_________________________________________
LEX HEMPHILL, Chairperson
State Records Committee