State Records Committee Appeal Decision 2019-46

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RILEY BOOKER, Petitioner, v.

DAVIS COUNTY. Respondent.

DECISION AND ORDER

Case No. 19-46

By this appeal, Petitioner, Riley Booker, seeks access to records allegedly held by Respondent, the Davis County.

FACTS

In a letter dated July 19, 2019, legal counsel for Mr. Booker made a request for records from the Davis County Jail pursuant to the Government Records Access and Management Act (“GRAMA”). Counsel requested video and audio recordings from the booking room of the Davis County Jail Building (“Jail”) on July 16, 2019. In a letter dated July 26, 2019, the records officer for the Jail stated that the recording could not be released because it revealed security measures and therefore, the recording was not subject to GRAMA pursuant to Utah Code § 63G-2-106.

In a letter dated July 30, 2019, Legal Counsel for Mr. Booker filed an appeal with Davis County disagreeing with the classification of the video as revealing security measures and stated that similar videos of the Jail booking room had been released by Davis County in the past. On August 13, 2019, Randy B. Elliott, Davis County Commissioner, affirmed the decision of the Jail’s records officer stating that video recordings of the Jail booking area “reveal certain security measures and protocols” and therefore the records “are not subject to GRAMA” pursuant to Utah Code § 63G-2-106.

On August 30, 2019, Mr. Booker filed an appeal with the State Records Committee (“Committee”). On December 12, 2019, the Committee held a hearing. After considering the written and oral arguments of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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 of a governmental entity or political subdivision regarding security measures designed for the protection of persons or property, public or private, are not subject to GRAMA. Utah Code § 63G-2-106. These records include security plans, security codes, combinations, passwords, passes, keys, security procedures, and building and public work designs to the extent that they relate to the ongoing security measures of a public entity. Utah Code § 63G-2-106(1-5).

3. Legal counsel for Davis County argued that release of the video of the Jail booking area would allow someone “to determine operating procedures, number of staff at any given time inside a secure correctional facility and dissect this video to create any sort of plan to cause harm to those working inside the facility.” Legal counsel for Mr. Booker argued that the video was from a fixed camera of the booking room which did not reveal anything more than what was contained within the booking room. Counsel claimed that the request was restricted only to the booking of one individual during a fixed 15-30 minute period of time on July 16, 2019. Counsel contended that release of the video would not disclose any “security procedures” and the fact that Davis County has released similar videos in the past shows that there has not been a concern previously about security procedures being disclosed.

4. After having reviewed the written and oral evidence presented by the parties, the Committee finds that Davis County misclassified the requested video as a record not subject to GRAMA pursuant to Utah Code § 63G-2-106. The Committee did not find Davis County’s arguments persuasive that release of the recording would jeopardize security procedures in part because Davis County had released similar videos in the past. Accordingly, the recording should be considered an initial contact report and therefore, should also be released as a public record pursuant to Utah Code § 63G-2-301(3)(g). See also, Phillips v. W. Jordan Police Dept., State Records Comm. Case No. 14-04 (Mar. 28, 2014).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Riley Booker, is GRANTED.

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 December 2019.

BY THE STATE RECORDS COMMITTEE

__________________________________________
TOM HARALDSEN, Chair
State Records Committee