State Records Committee Appeal Decision 2020-49

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NICOLE NOREN on behalf of ESPN, Petitioner, v.

UNIVERSITY OF UTAH. Respondent.

DECISION AND ORDER

Case No. 20-49

By this appeal, Petitioner, Nicole Noren on behalf of ESPN, seeks access to records allegedly held by Respondent, University of Utah.

FACTS

In a document dated October 18, 2019, Ms. Noren, a Producer with the Cable Television Network “ESPN”, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to Respondent, the University of Utah. Ms. Noren requested access and copies of records held by Respondent relating to the murder of University of Utah student Lauren McCluskey. As part of her request. Mr. Noren asked specifically for records regarding three individuals who were working as police officers with the University of Utah Police Department.

On multiple occasions, Respondent contacted via e-mail Ms. Noren regarding requests for extensions of time to fulfill the request and the need for prepayment of fees. In a letter dated June 17, 2020, Ms. Noren stated that there had been “(6) missed deadlines in which the University Records Office has not completed the records request and requested another extension.” Ms. Noren further stated that she considered Respondent’s actions to be a “constructive denial” of her records requests. On June 29, 2020, Respondent stated that all records that could be provided had been provided but some records had been withheld and/or redacted including records the disclosure of which “would jeopardize the life or safety of those individuals”.

On August 2, 2020, Ms. Noren on behalf of ESPN, filed an appeal with the State Records Committee (“Committee”). On September 24, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief 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 the disclosure of which would jeopardize the life or safety of an individual are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(11).

3. The issue before the Committee was whether a video involving Lauren McCluskey and police officers for the University of Utah Police Department should be released with unredacted images of the officers in the video. Legal counsel for Respondent argued that the images of the officers “would most certainly expose the officers to additional risks to their safety and lives.” Legal counsel for ESPN argued that there would not be an additional safety risk for the officers because their images have already been made public including 99 high resolution photographs of one of the officers being released by the Logan City Police Department.

4. After considering the evidence and the arguments by the parties, the Committee is not convinced that release of the video unredacted “would jeopardize the life or safety” of the police officers. The evidence shows that images of the students were not redacted images of one of the police officers has already been released to the public and a further release by Respondent would have little impact on the public’s current knowledge of the officers. Accordingly, the Committee finds that the video should be released without redactions of the images of the officers.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nicole Noren on behalf of ESPN is hereby 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. 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 30 day of September 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee