State Records Committee Appeal Decision 2016-36

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JESSICA MILLER, on behalf of SALT LAKE TRIBUNE, Petitioner, v.

PROVO CITY POLICE DEPARTMENT and OREM CITY POLICE DEPARTMENT. Respondent.

DECISION AND ORDER

Case No. 16-36

By this appeal, Petitioner, Jessica Miller, on behalf of the Salt Lake Tribune, seeks access to records allegedly held by Respondents, Provo City Police Department, and Orem City Police Department.

FACTS

On or about May 25, 2016, Ms. Miller, a reporter for the Salt Lake Tribune, made two records requests pursuant to the Government Records Access and Management Act (“GRAMA”): One to the Provo City Police Department ("Provo P.D."), and one to the Orem City Police Department ("Orem P.D."). Ms. Miller requested, "[c]opies of Spillman Case Access Logs for any sexual-related criminal investigation that was accessed by an employee of Brigham Young University, including its police department, from January 2010 to present."

On May 26, 2016, the Records Supervisor for the Provo P.D. denied the request stating that the records were classified as protected due to a pending investigation by the Utah Department of Public Safety ("Public Safety"). On June 1, 2016, Orem P.D. similarly denied their request using the same reasoning. Ms. Miller appealed both denials, with each denial being upheld by their respective appeals departments. Provo P.D. added the additional reasoning that the data had been "shared" with other governmental entities, which would require additional permission from those entities before the data could be released. Further, both Provo P.D. and Orem P.D. noted that the requested information was in a database and was likely not a "record," and that neither entity would be required to "create" a record under GRAMA.

On July 12, 2016, Ms. Miller filed an appeal with the State Records Committee (“Committee”). A Motion to Dismiss was filed by Provo P.D. and joined by Orem P.D., claiming that the Committee did not have jurisdiction to hear the appeal because Ms. Miller failed to comply with the requirements of Utah Code § 63G-2-403(3). On September 8, 2016, the Committee held a public hearing to consider the merits of the Motion and Ms. Miller's Appeal. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony from all of the parties, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Utah Code § 63G-2-403(3)(a)(i) states that a records committee appellant "shall, on the day on which the notice of appeal is filed with the records committee, serve a copy of the notice of appeal" on the "governmental entity whose access denial is the subject of the appeal." The purpose of this provision in GRAMA is to put the governmental entity on notice that an appeal has been filed with the Committee, and allow the governmental entity sufficient time to respond to the appeal.

2. In the present case, both Provo P.D. and Orem P.D. argued that they were not properly served pursuant to Utah Code § 63G-2-403(3)(a)(i), and therefore, Ms. Miller's appeal to the Committee should be dismissed. Ms. Miller, who is not an attorney, claimed that she was initially unaware of the requirement to serve the governmental entities, but served a copy of the notice of appeal immediately after discovering her mistake.

3. Utah Code § 63G-2-403(3)(a)(i) does require the governmental entity to be served a copy of the notice of appeal on the day that the appeal is filed. While the requirements of Utah Code § 63G-2-403(1) ("A records committee appellant appeals to the records committee by filing a notice of appeal with the executive secretary of the records committee no later than 30 days after the date of issuance of the decision being appealed"), are clearly jurisdictional, the strict requirements of Utah Code § 63G-2-403(3)(a)(i) are not jurisdictional and should not be considered fatal to an appeal being heard if the records committee appellant cures the mistake in a reasonable amount of time. See, also Holbrook v. S. Jordan City Council, State Records Comm. Case No. 14-16 (Oct, 15, 2014), ("Utah Code § 63G-2-403(3) is not a jurisdictional reason or issue in the present case requiring the Committee to dismiss Ms. Holbrook's appeal..."). After carefully considering the parties' arguments, the Committee finds that the Motion to Dismiss should be denied.

4. Concerning the subject matter of the appeal itself, 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.

5. A governmental entity may properly classify a record as “protected” if the record was created or maintained for civil, criminal, or administrative purposes, if release of the record reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code § 63G-2-305(10)(a).

6. Respondents provided testimony that there is an open investigation that involves some of the requested records, and that release of these records would reveal witness names and could potentially interfere with the investigation. Respondents also argued that they could not grant access to the complete database because it is a “Shared Data System, a user group consisting of 22 other law enforcement agencies.”

7. A governmental entity may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of a person to inspect and receive a copy of a record under GRAMA. Utah Code § 63G-2-201(11). If a governmental entity receives a request for access to a record that contains both public and non-public information, and the information the requester is entitled to inspect is intelligible, the governmental entity shall allow access to information in the record the requester is entitled to inspect. Utah Code § 63G-2-308(1).

8. After hearing testimony and reviewing the parties' arguments, the Committee finds that Respondents should provide Ms. Miller with records responsive to her request that are considered initial contact reports pursuant to Utah Code § 63G-2-301(3)(g) and were also inputted by Respondents. However, the User ID and comment field that are considered a relevant part of Public Safety's investigation may be excluded by Respondents from disclosure pursuant to Utah Code § 63G-2-305(10)(a).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jessica Miller, on behalf of the Salt Lake Tribune, 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 19th day of September 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee