State Records Committee Appeal Decision 2017-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ANDREW BECKER, Petitioner, v.

WASHINGTON COUNTY SHERIFF’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 17-15

By this appeal, Petitioner, Andrew Becker, seeks access to records held by Respondent, the Washington County Sheriff’s Office.

FACTS

In a letter dated January 3, 2017, Nicole Loe from the law office Schatz Anderson & Associates, filed a request for records on behalf of Mr. Becker from the Washington County Sheriff’s Office (“Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Loe requested copies of “any and all police reports” associated with an incident involving Mr. Becker and the Office occurring on December 30, 2016. Ms. Loe also requested any “audio and video recordings” from any officer involved in the incident. On January 18, 2017, the records officer for the Office granted in part and denied in part the records request, granting access to private records where Mr. Becker was the subject of the record, but denying access to records that had been classified as protected records.

In a letter dated January 24, 2017, Richard Jorgensen, an attorney from the law office Schatz Anderson & Associates, filed an appeal on behalf of Mr. Becker with Sheriff Cory Pulsipher. The Office granted in part and denied in part the appeal, finding that some of the records could not be disclosed because an “investigation is ongoing.” Ms. Loe and the law office of Schatz Anderson and Associates filed an appeal on behalf of Mr. Becker with the State Records Committee (“Committee”). On April 13, 2017, a hearing was before the Committee where the parties were allowed to present their legal arguments. After having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed one of the disputed records in camera, the Committee 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. Initial contact reports as defined by Utah Code § 63G-2-103(14), are normally public. Utah Code § 63G-2-301(3)(g). DUI reports are generally prepared immediately following the incident and while the information is fresh in the reporting officer’s experience, and “clearly includes the type of information reflected in the statutory definition” of an initial contact report. Utah Dept. of Public Safety v. State Records Comm., 3rd Judicial Dist. Case No. 100904439 (June 17, 2010). Therefore generally, DUI reports are public records. Id. The Committee finds that the DUI report in the present case should be released to Mr. Becker as a public record.

3. Counsel for the Office argued that video showing the inside of a police station where blood is drawn from a person, is a protected record because records relating to incarceration or treatment of an offender would interfere with the control and supervision of an offender’s incarceration, treatment, probation, or parole pursuant to Utah Code § 63G-2-305(13). However, after reviewing the video in camera, the Committee was unconvinced that the release of the video would interfere with the control or supervision of an offender. Accordingly, the Committee found that the video should be classified as a private record pursuant to Utah Code § 63G-2-302(2)(d).

4. 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).

5. A second video responsive to the records request, was a police officer’s body camera video which included images of a passenger inside Mr. Becker’s vehicle. Counsel for the Office argued that release of the video unredacted would constitute a clearly unwarranted invasion of personal privacy of Mr. Becker’s passenger. The Committee agrees with the Office, finding that the video was properly classified as a private record pursuant to Utah Code § 63G-2-302(2)(d), and therefore, properly redacted.

6. If the Office could not provide an unredacted copy of the second video, Mr. Becker requested that the Office waive the cost of redacting the video. A governmental entity “may fulfill a record request” without charge and is encouraged to do so when it determines that: (1) The individual requesting the record is the subject of the record; or (2) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(b) & (c).

7. Under GRAMA, the discretion for granting a fee waiver is essentially left to the governmental entity providing the record. The standard of review for the Committee is to determine whether the governmental entity’s decision denying a request for a fee waiver was an “unreasonable denial of a fee waiver.” See, Utah Code § 63G-2-203(6)(a). After reviewing arguments from the parties, the Committee finds that the denial of Mr. Becker’s request for a fee waiver was not an unreasonable denial by the Office.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Andrew Becker, is hereby 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 24th day of April 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee