State Records Committee Appeal Decision 2016-21

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NATE CARLISLE on behalf of SALT LAKE TRIBUNE, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 16-21

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 (“AG’s Office”).

FACTS

On April 14, 2016, the State Records Committee (“Committee”), held a hearing and heard oral arguments from the parties. During the deliberation phase of the hearing, a motion was made to review the disputed records in camera. When it was determined that the records were too numerous to review in their entirety during the hearing on this matter, the Committee voted unanimously to continue the hearing to a later date in order to allow sufficient time for Committee members to review the disputed records. See, Carlisle v. Utah Attorney Gen. Office, State Records Committee Case No. 16-14 (April 25, 2016). After having reviewed the records, considering all arguments by the parties, and holding a second hearing on May 12, 2016, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. An in camera review of the records provided by the AG’s Office responsive to Petitioner’s records request, shows that a portion of the records includes those that were previously requested by Petitioner in Carlisle v. Utah Attorney Gen. Office, State Records Committee Case No. 15-17 (May 26, 2015). The records request made in the previous case was for “[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.” The records request in the present case was for:
[A]ll documents related to any criminal investigations of Beaver County Sheriff Cameron Noel conducted in 2014 or 2015, including, but not necessarily limited to, police reports, witness statements, forensic reports, search warrant applications and returns, subpoenas and similar documents you may have received from other law enforcement agencies.

2. In response to a request for a record, a governmental entity is not required to fulfill a person’s records request if the request unreasonably duplicates prior records requests from that person. Utah Code § 63G-2-201(8)(a)(iv). The AG’s Office segregated the records out that had been provided previously to the Committee from the prior hearing. See, Carlisle v. Utah Attorney Gen. Office, State Records Committee Case No. 15-17 (May 26, 2015). The Committee’s decision in Case No. 15-17 was appealed by the AG’s Office to the 3rd District Court, in Salt Lake County, Utah, Case No. 150904266, and the appeal is still under consideration by the Court. Accordingly, the Committee finds that it does not have jurisdiction to reconsider the AG’s Office classification of records reviewed by the Committee in Case No. 15-17.

3. The Government Records Access and Management Act (“GRAMA”) generally 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 GRAMA, or to which access is restricted pursuant to a court rule, another state statute, federal statute, or federal regulation, are not public records. Utah Code § 63G-2-201(3).

4. Administration staff manuals, instructions to staff, and statements of policy, are normally considered public records but to the extent that the records is expressly exempt from disclosure by GRAMA or otherwise restricted. Utah Code § 63G-2-301(3)(a). A review of the requested records shows that they include policy manuals, which should be considered public records pursuant to Utah Code § 63G-2-301(3)(a), and therefore, should be disclosed by the AG’s Office to Petitioner.

5. Records that are created or maintained for civil, criminal, or administrative enforcement purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by the governmental entity, if release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; (2) Reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; or (3) Could create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(a), (b), and (c).

6. The AG’s Office argued that many of the records that are responsive to Petitioner’s request fall within the three categories of protected records listed in Utah Code § 63G-2-305(10)(a), (b), and (c). Counsel argued that the records came to the AG’s Office from county law enforcement agencies. Additionally, an affidavit from Michelle W. Pickens, a Special Agent with the Federal Bureau of Investigation (“FBI”), states that the FBI “has an open and ongoing Civil Rights Investigation of Beaver County Sheriff Cameron Noel” and that “disclosure of any information in this matter would significantly risk and jeopardize the integrity of our investigation and its effectiveness.”

7. After having reviewed the records in camera, the Committee finds that the records that were not part of the Case No. 15-17 records request or the policy manuals in the current records request, were properly classified by the Utah AG’s Office as protected records pursuant to Utah Code § 63G-2-305(10)(a), (b), and (c). Law enforcement and prosecutors have the ability to restrict access to records that could reasonably be expected to interfere with investigations, proceedings, and/or trials.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nate Carlisle, is GRANTED in part and DENIED in part.

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 May 2016.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee