State Records Committee Decision 2015-17

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NATE CARLISLE, SALT LAKE TRIBUNE, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 15-17

By this appeal, Petitioner, Nate Carlisle, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.

FACTS

On January 23, 2015, Mr. Carlisle made a records request, via email, to the Utah Attorney General’s Office ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Carlisle requested “[a]ll incoming and outgoing correspondence concerning Cameron Noel originating in 2014 or 2015 including, but not limited to, letters, emails, text messages and instant messaging programs” and “[t]he letter deputizing Troy Rawlings to consider criminal charges against Cameron Noel and any related instructions to Mr. Rawlings.” On February 17, 2015, Respondent denied Mr. Carlisle’s records request, claiming that the records were either protected or private pursuant to Utah Code §§ 63G-2-305(10)(a-c), -302(2)(d) and -302(1)(b).

Mr. Carlisle filed an appeal with Respondent and in a letter dated March 17, 2015, Parker Douglas, General Counsel and Chief of Staff for Respondent, denied Mr. Carlisle’s appeal stating that pursuant to Utah Code § 63G-2-305(10), the records were protected. Mr. Douglas also indicated that Respondent was withdrawing its claim that some of the records were classified as private records. However, during testimony the Respondent reinstated the privacy classification for two records that were provided for in camera review. On April 11, 2015, Mr. Carlisle filed an appeal on behalf of the Salt Lake Tribune with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having review the materials provided for in camera review, on May 14, 2015, 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 Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303, -304 and -305.

2. Records that are created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are properly classified as protected records if release of the records: (a) reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; (c) would create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10).

3. Counsel for Respondent argued at the hearing that the records were properly classified as protected because they are related to a current ongoing investigation of Cameron Noel, Beaver County Sherriff. Counsel could not provide specifics concerning the investigation including what entity was investigating or the scope of the investigation, and then later stated that he could neither confirm nor deny if an investigation was “pending or ongoing.”

4. The Committee reviewed the disputed records in camera. The Committee found the records were improperly classified as protected records pursuant to Utah Code § 63G-2-305(10), and should be considered public records with the exception of the records numbered 3 and 4. The Committee held that Records 3 and 4 were properly classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(10)(a) and (c) because release could be expected to interfere with investigations and would create a danger of depriving a person of a right to a fair trial.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is GRANTED except for the records numbered 3 and 4 as stated above.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14) (2015). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a) (2015). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2) (2015). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6) (2015). 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(15)(c) (2015), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i) (2015). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii) (2015).

Entered this 26th day of May, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee