State Records Committee Appeal Decision 2017-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

AMERICAN CIVIL LIBERTIES UNION, Petitioner, v.

SALT LAKE COUNTY DISTRICT ATTORNEY and SALT LAKE CITY POLICE DEPARTMENT. Respondents.

DECISION AND ORDER

Case No. 17-02

By this appeal, Petitioner, the American Civil Liberties Union, seeks access to records held by Respondents, Salt Lake County District Attorney and the Salt Lake City Police Department.

FACTS

On February 27, 2016, a shooting incident occurred involving Abdi Mohamed and police officers with the Salt Lake City Police Department (“Department”). In a letter dated May 12, 2016, the American Civil Liberties Union (“ACLU”), filed a records request pursuant to the Government Records Access and Management Act (“GRAMA”) with the Department. The records request included a request for copies of “[b]ody camera footage” and “[o]ther video footage of the Incident and area, including but not limited to dash-cam and/or surveillance video.” The ACLU made the same records request to the Salt Lake County District Attorney (“D.A.”) in a second letter also dated May 12, 2016.

In a letter dated June 11, 2016, Darcy M. Goddard, a Deputy District Attorney and Chief Policy Advisor for the D.A., provided a joint response for the Department and the D.A. Ms. Goddard wrote that releasing the body camera footage “could be expected to interfere with our investigation and might deprive an individual (whether the juvenile, an officer, or someone else) of the right to a fair trial.”

The ACLU filed an appeal with the Chief Administrative Officer for GRAMA Appeals for Salt Lake County (“County”) with a letter dated July 7, 2016, arguing that the County’s refusal to release the withheld records should be reversed. The ACLU also filed an appeal with the Salt Lake City Recorder with a nearly identical letter dated July 7, 2016. The parties agreed to stay the Salt Lake City (“City”) appeal proceedings pending County’s more extensive appeal procedure.

In a letter dated July 15, 2016, Sarah Brenna, Chief Administrative Officer for Appeals for the County, denied the ACLU’s appeal stating that the ACLU had a right to appeal the decision to the Salt Lake County Appeals Board (“County Appeals Board”). In a letter dated August 18, 2016, Ms. Goddard issued a supplemental response to her June 11, 2016, letter, writing that the “body camera footage, surveillance camera footage…are not subject to release at this time” based upon Utah Code § 63G-2-305(10). Ms. Goddard stated that release of “material evidence in a criminal case, particularly when the evidence relates to a matter pending in juvenile court” would “undermine” the criminal case and create a danger of depriving a person of a right to a fair trial.

In a letter dated August 31, 2016, the ACLU filed an appeal with the County Appeals Board. On September 14, 2016, the City petitioned to intervene with the appeal and the petition was granted. After a hearing was held on October 18, 2016, the County Appeals Board issued a Decision and Order dated October 25, 2016. The County Appeals Board affirmed the denial of ACLU’s appeal to the Salt Lake County Chief Administrative Officer of Appeals, stating:
Releasing the photographs and/or body camera footage and/or surveillance videos could interfere with the pending criminal proceeding and could endanger the Juvenile’s right to a fair trial. The Board feels strongly that protecting material evidence in this pending criminal proceeding, which could interfere with the proceeding if it were released; and, protecting the Juvenile’s rights and not burdening his ability to a fair trial outweighs the public’s right to the information.

In a letter dated October 28, 2016, the Chief Administrative Officer for the City wrote that the City “joins in the decision by the County Appeals Board and denies the ACLU’s appeal.”

The ACLU filed an appeal of the October 25, 2016, County Appeals Board decision, and the City’s October 28, 2016, decision through a letter dated November 22, 2016. On January 12, 2017, a hearing was before the Utah State Record Committee (“Committee”) where the ACLU, the D.A.’s Office, and the Department were allowed to present their legal arguments. After considering all written materials and the arguments by the parties, and reviewing the records in camera, the Committee 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 § 63G-2-201(2). Records that are private, controlled, or protected under Utah Code §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).

2. Records created or maintained for criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the record: (1) Reasonably could be expected to interfere with enforcement proceedings; or (2) Would create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(b) & (c).

3. Respondents argued that the disputed records depict an alleged suspect engaging in criminal conduct, which if made public, would deprive him of a right to a fair trial or an impartial hearing because the records “substantially impeach[] his credibility should he testify as a witness.”

4. The ACLU argued that there is a great public interest in “police-involved shootings of young black men” leading to a “crisis of confidence in law enforcement.” The ACLU contended that allowing the public “to see for themselves whether law enforcement use of lethal force is truly justified [would] prevent destructive protests and violence in its aftermath.” The ACLU provided numerous court case citations in their written materials submitted to the Committee concerning the allowance of information concerning a criminal trial being released prior to the trial without negatively affecting the rights of an accused to have a fair trial.

5. The Committee reviewed two body camera videos, two surveillance videos, and crime scene photographs in camera, and determined that records should be classified as public records. The Committee held that the release of the records would not reasonably interfere with enforcement proceedings or create a danger of depriving a person of a right to a fair trial or an impartial hearing. The Committee further cited the governmental entity’s public release of the written detailed report of the body camera footage from the Citizen Review Board as additional support for this finding. See, Utah Code § 63G-2-305(10)(b) & (c). Additionally, even if the records had been properly classified by Respondents as protected records, the public interest favoring access to the records is greater than the interest favoring restriction to access. See, Utah Code § 63G-2-403(11)(b); Utah Dept. of Pub. Safety v. Vanocur, Utah Third Judicial Dist. Case No. 100904439 (June 17, 2010).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, the American Civil Liberties Union 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 January 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee