State Records Committee Appeal Decision 2018-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ERIC PETERSON on behalf of THE UTAH INVESTIGATIVE JOURNALISM PROJECT, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 18-03

By this appeal, Petitioner, Eric Peterson, on behalf of The Utah Investigative Journalism Project, seeks access to records held by Respondent, Utah Attorney General’s Office.

FACTS

On or about July 2, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “[t]he final and completed Utah Attorney General’s Office 2012 UTA Investigation Report. The same document that the office would eventually turn over to the FBI looking into allegations of impropriety and insider dealings involving former UTA board members including Terry Diehl and Greg Hughes.”

On or about August 17, 2017, Respondent informed the Petitioner that the records were classified as protected under Utah Code §§ 63G-2-305(10)(a)-(d) because the FBI still had an ongoing investigation regarding the matter and release of the records would compromise the ongoing investigation. Respondent also notified the Petitioner that once the federal investigation was completed, the Respondent would consider reclassification of the records for public release.

On or about October 13, 2017, Petitioner resubmitted his request. On October 26, 2017, Respondent denied the request indicating that the records were still classified as protected under Utah Code §§ 63G-2-305(10)(a)-(d). Respondent also denied the Petitioner’s request as unreasonably duplicative under Utah Code § 63G-2-201(8)(a)(iv).

On October 29, 2017, Petitioner appealed the denial, and on November 13, 2017, acting Chief Administrative Officer (“COA”), Solicitor General Tyler Green granted the appeal. After further information was provided regarding the appeal and the requested records, the CAO denied the appeal on November 22, 2017, prior to the records being 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 January 11, 2018, 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 created or maintained for criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to interfere with investigations undertaken for enforcement purposes. Utah Code § 63G-2-305(10)(a).

3. Respondent provided to the Committee an affidavit that stated that based upon her experience as a criminal investigator and her knowledge of and involvement with the investigation which is the subject of the records request, “I believe that the disclosure of any information in this matter would significantly risk and jeopardize the integrity of our investigation and its effectiveness.”

4. After having reviewed the written and oral arguments of the parties, the Committee finds that Respondent properly classified the requested records as protected records pursuant to Utah Code § 63G-2-305(10).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, is 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 a parties’ 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 23rd day of January 2018.

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee