State Records Committee Appeal Decision 2017-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARK SHENEFELT on behalf of STANDARD-EXAMINER, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 17-07

By this appeal, Petitioner, Mark Shenefelt, reporter for the Standard-Examiner, seeks access to copies of audio and video records allegedly held by Respondent, the Utah Attorney General’s Office.

FACTS

On November 23, 2016, Mr. Shenefelt made a request from the Utah Attorney General’s Office (“AG’s Office”) for copies of audio and video surveillance records for alleged offenses occurring in October and November 2016 involving three named individuals. Mr. Shenefelt stated that release of the records would benefit the public because it involved “[n]ews coverage of felony crimes in Weber County.”

In a letter dated December 8, 2016, Lonny Pehrson, Assistant Attorney General and Government Records Counsel for the AG’s Office, denied the request pursuant to Utah Code § 63G-2-305(10). Mr. Shenefelt filed an appeal of the decision and in a letter dated December 19, 2016, Parker Douglas, General Counsel for the AG’s Office, denied the appeal.
On December 23, 2016, Mr. Shenefelt filed an appeal on behalf of the Standard-Examiner with the State Records Committee (“Committee”). On February 9, 2017, the Committee held a hearing regarding the appeal. The Committee, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Utah 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. Records created or maintained for criminal enforcement purposes are protected records if properly classified and if release of the records “reasonably could be expected to disclose the identity of a source who is not generally known outside of government.” Utah Code § 63G-2-305(10)(d).

3. Nathan Mutter, a criminal investigator with the AG’s Office, testified that any release of the information from the records “could help lead to the identification of our source.” He also testified that release of the records could put the safety of the confidential source at risk because of the violent history of some of the individuals involved in the criminal case.

4. After having reviewed all arguments and evidence, the Committee finds that the records are protected records pursuant to Utah Code §§ 63G-2-305(10)(d). The Committee is persuaded by the testimony and arguments made that release of the audio and video records reasonably could disclose the identity of a source who is not generally known outside of government.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Shenefelt, on behalf of the Standard-Examiner, is hereby DENIED.

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 21st day of February 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee