State Records Committee Appeal 2015-31

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KURT BAILEY, Petitioner, v.

PERRY CITY POLICE DEPARTMENT. Respondent.

DECISION AND ORDER

Case No. 15-31

By this appeal, Petitioner, Kurt Bailey seeks access to records allegedly held by Respondent, Perry City Police Department.

FACTS

On or about July 20, 2015, Mr. Bailey made a records request to the Perry City Police Department ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Bailey requested “[a]ll written reports, notes [and] video” for a specific citation that occurred on July 18, 2015. On or about July 27, 2015, Respondent provided Mr. Bailey with a copy of the written report, and notified Mr. Bailey that “the video is evidence and could not be released.” On or about July 27, 2015, Mr. Bailey made a second records request, pursuant to GRAMA, and requested “[a]ll video and recordings including but not limited to dash cam, body camera, and any other audio and[/]or video taken or used. Radar training certificate for the officer [and] vehicle radar equipment certificated used” for a specific citation. Mr. Bailey further requested Respondent to provide “written detailed explanation as to why being denied to anything stated above.” On or about July 29, 2015, Respondent notified Mr. Bailey that he could file a motion of discovery with the Justice Court.

Mr. Bailey filed an appeal of the denials with Greg Westfall, Chief Administrative Officer. On August 24, 2015, Mr. Westfall notified Mr. Bailey that the “request has been fulfilled by Perry City’s Prosecutor Bill Morris on August 24, 2015.” Mr. Bailey noted that he only received video from the body camera.

On September 21, 2015, Mr. Bailey filed an appeal with the State Records Committee (“Committee”), and on November 3, 2015, Mr. William M. Morris, Perry City Prosecutor, filed a Motion and Order to Dismiss with the Committee. On November 12, 2015, after considering Petitioner’s arguments in the Motion to Dismiss, the Committee denied the Motion. The Committee thereafter proceeded to hold a hearing regarding Mr. Bailey’s appeal, reviewing the arguments submitted by the parties and hearing oral argument and testimony from Mr. Bailey, and now after careful consideration of all arguments, 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 private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).

2. Respondent did not make an appearance before the Committee, so the Committee was very limited in its ability to determine whether a dash camera was used on July 18, 2015, or if Respondent properly classified the records if they existed. The Committee was unable to determine if Respondent had a policy on the matter, and a review of Respondent’s municipal ordinances failed to show that it had an applicable records provision. The Division of Archives’ General Retention Schedule for the State of Utah is to retain the records for a period of three to six months, which is a period clearly within the time of Mr. Bailey’s records request.

3. After reviewing the arguments submitted by the parties, hearing oral argument and the testimony of Mr. Bailey, and a review of applicable ordinances, statutes, and retention schedules, the Committee finds that Respondent should have the requested record, and orders Respondent to provide said record to Mr. Bailey.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Kurt Bailey, is GRANTED.

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). 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). 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). 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). 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), 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). 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).

Entered this 23rd day of November, 2015.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee