State Records Committee Appeal Decision 2017-47

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MIKE ANDERSON on behalf of KSL-TV, Petitioner, v.

KAYSVILLE CITY POLICE DEPARTMENT, Respondent.

DECISION AND ORDER

Case No. 17-47

By this appeal, Petitioner, Mike Anderson, on behalf of KSL-TV, seeks access to records held by Respondent, Kaysville City Police Department.

FACTS

On or about July 21, 2017, Mr. Anderson made a records request on behalf of KSL-TV pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Anderson requested police body camera footage from February 12, 2017, where an individual may have been involved in an altercation (“suspect”) with police officers inside that person’s home. On July 28, 2017, Respondent denied Petitioner’s request based on the determination that the records were private because they contained “data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.” See, Utah Code § 63G-2-302(2)(d).

Petitioner filed an appeal with the chief administrative officer for Respondent pursuant to Utah Code § 63G-2-401. In a letter dated August 8, 2017, Shayne Scott, City Manager for Respondent, affirmed the decision denying the request for the body camera footage, noting that other than the suspect, “there are other family members depicted in the video, some of whom we understand to be minors, who would suffer a ‘clearly unwarranted invasion of personal privacy’ if the body cam video were to be released.”

Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on December 14, 2017, 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 not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. 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. Additionally, audio and video recordings created by a body-worn camera as defined in Utah Code § 77-7a-103, that record sound or images inside a home or residence, are private records if properly classified by a governmental entity except for recordings that: (1) Depict the commission of an alleged crime; (2) Record any encounter between a law enforcement officer and a person that results in death or bodily injury, or includes an instance when an officer fires a weapon; or (3) Contain an officer involved critical incident as defined in Utah Code § 76-2-408(1)(d). See, Utah Code § 63G-2-302(2)(g)(i), (ii), & (iv).

4. When a record contains both public and private information, the governmental entity is obligated to segregate the records by classification and provide access to information to which the requester is entitled. Winters v. W. Jordan City Police Dept., State Records Committee Case No. 17-28 (Aug. 21, 2017), following Utah Code § 63G-2-308. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1).

5. A review of the plain language of Utah Code § 63G-2-302(2)(g) shows a legislative intent to preserve the privacy inside a person’s residence when a body-worn camera is used by a police officer except for specifically enumerated instances provided in Utah Code § 63G-2-302(2)(g)(i-v). See also Utah Code § 63G-2-305(66), which similarly protects records of body-worn cameras recording sounds or images inside a hospital, a health care facility, a clinic of a health care provider, or a human service program. However, even though the requested police body camera footage contains information that is public pursuant to Utah Code § 63G-2-302(2)(g)(i), (ii), and (iv), it would be a clearly unwarranted invasion of personal privacy to allow personally identifiable information concerning individuals who are not the suspect or the police officers to become public. Accordingly, the requested police body camera footage is a public record, but may be released only after the private information regarding individuals who are not the suspect or the police officers involved in the incident are redacted as required by Utah Code § 63G-2-308.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mike Anderson on behalf of KSL-TV, is GRANTED insofar as stated above.

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 26th day of December 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee