State Records Committee Appeal Decision 2021-40

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NATE CARLISLE on behalf of KSTU-FOX 13 UTAH, Petitioner, v.

BEAVER COUNTY, Respondent.

DECISION AND ORDER

Case No. 21-40

By this appeal, Petitioner, Nate Carlisle on behalf of KSTU-Fox 13 Utah, requests access to records allegedly held by Respondent, Beaver County.

FACTS

In an e-mail dated January 7, 2021, Mr. Carlisle, an investigative reporter and producer with KSTU-Fox 13 Utah (“Petitioner”), filed a request for records pursuant to the Government Records Access and Management Act (GRAMA) with Robert C. Pyles, Administrative Services Coordinator for Beaver County. Mr. Carlisle requested “a copy of what’s commonly known as the ‘Brady List’ maintained by your county’s prosecutors.”

In a letter dated March 15, 2021, Leo G. Kanell, Deputy County Attorney for Respondent, stated that a “Brady List” may include information from a criminal background check which has been classified as private pursuant to Utah Code § 63G-2-302(2)(a), and therefore, “[a]ny ‘Brady’ list associated with this office has been classified as private [and] is not available to the public.” Mr. Carlisle filed an appeal with the County Commissioners for Respondent, who denied the appeal at a meeting held on March 16, 2021.

Mr. Carlisle filed an appeal with the State Records Committee (“Committee”) in a letter dated April 8, 2021. On July 8, 2021, the Committee held a hearing. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. In response to a request for a record pursuant to GRAMA, a governmental entity is not required to: (1) Create a record; (2) Compile, format, manipulate, package, summarize, or tailor information; or (3) Provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(a-c).

2. In the present case, Petitioner has requested a copy of Respondent’s “Brady List.” Mr. Carlisle explained that he is seeking a list created by county prosecutors and shared with defense attorneys pursuant to Brady1 regarding officers or employees “for whom courts or prosecutors found wrongdoing or who committed criminal conduct.”

3. Respondent initially denied the request claiming that any such records would be considered private records pursuant to Utah Code § 63G-2-202(2)(a). However, counsel for Respondent during the hearing stated that the Beaver County Attorney’s Office did not possess a “Brady List” regarding employees and officers. Counsel further stated that information regarding officers or employees who were found to have committed wrongdoings or criminal conduct that had been shared with defense attorneys pursuant to Brady may exist in individual criminal case files, or with the Utah Department of Public Safety regarding officers.

4. After having considered the evidence presented, the Committee is unconvinced that Respondent possesses a “Brady List” record responsive to Petitioner’s records request. While it may be true that some county prosecutor offices may create a “Brady List” which is shared with criminal defense attorneys, the testimony presented by Respondent holds that a Brady List has not been created by the Beaver County Attorney’s Office.

1 In Brady v. Maryland 373 U.S. 83, 83 S.Ct. 1194 (1963), the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Material shared by the prosecution to the defense is typically referred to now as “Brady Material”, “Brady Evidence”, or “Brady Disclosure.”

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nate Carlisle on behalf of KSTU-Fox 13 Utah, is hereby 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 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 19 day of July 2021

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee