State Records Committee Appeal Decision 2021-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JESSICA MILLER on behalf of the SALT LAKE TRIBUNE, Petitioner, v.

WEST VALLEY CITY POLICE DEPARTMENT. Respondent.

DECISION AND ORDER

Case No. 21-03

The present appeal was previously heard by the State Records Committee (“Committee”) on December 10, 2020 with each of the parties participating electronically. See, Miller v. W. Valley Police Dept., State Records Committee Case No. 20-65 (Dec. 21, 2020). The Committee continued the case until January 11, 2021 in order to allow Committee members to have an opportunity to review six videos in camera related to the shooting of Michael Chad Breinholt while he was in police custody, resulting in his death on August 23, 2019. On January 11, 2021, the Committee held a hearing and deliberated concerning their in camera review of the records. 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 created or maintained for criminal enforcement purposes may be classified by a governmental entity as protected records if they reasonably could be expected to interfere with investigations undertaken for criminal or civil enforcement purposes, or would create a danger of depriving a person of a right to a fair trial or an impartial hearing. Utah Code § 63G-2-305(10)(a) & (c).

3. Counsel for Respondent argued that the six videos should remain non-public claiming that disclosure of the videos could interfere with Respondent’s investigation of the shooting death of Mr. Breinholt. Counsel also argued that release of the videos would create a danger of depriving the right of a fair trial for a person criminally charged relating to the circumstances surrounding Mr. Breinholt’s death.

4. After having considered the arguments of the parties and having reviewed the six videos in camera, the Committee finds that Respondent properly classified the videos as protected records pursuant to Utah Code § 63G-2-305(10). However, considering the fact that much of the video footage has already been released to the public including video of the actual shooting, and also considering the high public interest currently regarding police custody shootings, the Committee finds that the public interest favoring access is greater than or equal to the government’s interest favoring restriction of access. See, Utah Code § 63G-2-403(11)(b). Accordingly, the Committee finds that Petitioner’s records request should be granted and the videos should be released by Respondent as public records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jessica Miller on behalf of the Salt Lake Tribune 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 25 day of January 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee