State Records Committee Appeal Decision 2016-41

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ALEX STUCKEY on behalf of SALT LAKE TRIBUNE, Petitioner, v.

CEDAR CITY POLICE DEPARTMENT. Respondent.

DECISION AND ORDER

Case No. 16-41

By this appeal, Petitioner, Alex Stuckey, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Cedar City Police Department (“Department”).

FACTS

On June 10, 2016, Ms. Stuckey filed a request for records from the Department pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Stuckey requested, “any police reports or investigation records” that mentioned a specified individual “from 2010 to present.” In a letter dated June 14, 2016, the records clerk for the Department stated that the only records that existed had been classified as private records pursuant to Utah Code § 63G-2-302(2)(d).

Ms. Stuckey filed an appeal with the Department’s chief administrative officer on June 23, 2016. When no response was given, Petitioner considered the non-response to be the equivalent of a determination denying access to the record as outlined in Utah Code § 63G-2-403(1)(b), and filed an appeal with the Committee. On October 13, 2016, a hearing was before the State Records Committee (“Committee”), where the parties were allowed to present their legal arguments. After considering all arguments by the parties, the Committee 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). 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. Initial contact reports are normally public to the extent that GRAMA expressly exempts them from disclosure under Utah Code §§ 63G-2-201(3)(b), -302, -304, or -305. Utah Code § 63G-2-301(3)(g). Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).

3. Darin M. Adams, the Chief of Police for the Department, stated in a letter dated September 27, 2016, written to the Committee, that Ms. Stuckey already had a copy of a police report involving the specified individual, but the name of the individual was redacted from the report. Chief Adams stated that the redactions were made “for the sole purpose of protecting a citizen’s privacy.” Ms. Stuckey argued that the Department had already released the name of the specified individual in another record.

4. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the police record responsive to Petitioner’s request is a public record pursuant to Utah Code § 63G-2-301(3)(g). The Department had essentially already disclosed the identity of the specified individual by providing a redacted police report to Petitioner that was responsive to the records request that was for a police report that named the specified individual and no others. Further, the Department disclosed the identity of the specified individual in its written statement to the Committee, which is required to also be delivered to the Petitioner. A governmental entity cannot thereafter claim that release of an individual’s name as part of a record is a “clearly unwarranted invasion of personal privacy” when the governmental entity has already released that person’s name in another record.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Alex Stuckey, 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 24th day of May 2016.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee