State Records Committee Appeal Decision 2018-34

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RANDY ANDRUS on behalf of LEON BROWN’S ESTATE, Petitioner, v.

UNIFIED POLICE DEPARTMENT. Respondent.

DECISION AND ORDER

Case No. 18-34

By this appeal, Petitioner, Randy M. Andrus, on behalf of Leon Brown’s Estate, seeks access to records allegedly held by Respondent, the Unified Police Department.

FACTS

In a letter dated November 10, 2016, Randy M. Andrus, legal counsel representing Leon Brown’s Estate, made a records request to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Andrus requested all communications, records, and documents related to an incident occurring on September 22, 2016. In a response dated November 21, 2016, the records custodian for Respondent stated that the records requested were classified as protected records pursuant to Utah Code § 63G-2-305.

In a letter dated December 6, 2016, Mr. Andrus filed an appeal with the Chief Administrative Officer for Respondent. Mr. Andrus stated that he disagreed with the classification of the records as protected records. In a letter dated December 28, 2016, James M. Winder, Sherriff of the Unified Police Department of Greater Salt Lake, upheld the classification of the records as being protected because an “investigation has not been completed.”

In a letter dated January 25, 2017, Mr. Andrus filed an appeal with the State Records Committee (“Committee”). Due to the ongoing investigation, the appeal was postponed until a hearing concerning this matter was held before the Committee on September 13, 2018. At the hearing, counsel for Respondent stated that all records responsive to the request had been produced. Mr. Andrus stated that he believed records had not been produced based upon records he had already received.

The Committee deliberated and concluded that there was a question concerning whether all records had been produced by Respondent. The Respondent indicated that he had not conducted a search of email, though the request included a request for “communications.” The Committee asked counsel for Respondent if Respondent would be willing to thoroughly review its records, including communications, to determine if there were any more records that needed to be produced to Petitioner. Counsel for Respondent indicated that his client would be willing perform another review. Since there is a potential that any records found may still need to be classified by Respondent, the Committee voted to continue the hearing in order to allow Respondent to search for records and properly classify any records that are found responsive to Petitioner’s records request. See, Utah Code §§ 63G-2-201(1) & -205(2). Both parties stated that they were willing to continue the hearing to allow such a search and classification to take place.

ORDER

THEREFORE, IT IS ORDERED THAT the hearing is CONTINUED to the next scheduled Committee hearing.

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. Utah Code § 63G-2-403(15)(d)(i)(B). 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 _24__ day of September 2018

BY THE STATE RECORDS COMMITTEE

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HOLLY RICHARDSON, Chair Pro Tem
State Records Committee