State Records Committee Appeal Decision 2021-42

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

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

SALT LAKE CITY CORPORATION, Respondent.

DECISION AND ORDER

Case No. 21-42

By this appeal, Petitioner, Jessica Miller on behalf of the Salt Lake Tribune, requests access to records held by Respondent, the Salt Lake City Corporation.

FACTS

Jessica Miller, a reporter with the Salt Lake Tribune, made a request received on May 12, 2021 by Respondent, for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Miller requested body camera footage of a K-9 dog bite incident occurring on November 14, 2019. In an e-mail dated May 18, 2021, Respondent’s GRAMA coordinator denied the request stating that the record had been classified as a protected record pursuant to Utah Code § 63G-2-305(10)(a-c).

In a letter dated May 21, 2021, Ms. Miller appealed the denial arguing that the video should be released because the “city cannot be permitted to take a piecemeal approach to transparency.” In a letter dated June 7, 2021, Rachel Otto, Chief of Staff for the Office of the Salt Lake City Mayor, affirmed the GRAMA coordinator’s decision adding that “[s]hould circumstances change, the City is willing to reevaluate this decision.”

Ms. Miller filed an appeal with the State Records Committee (“Committee”) in a letter dated June 9, 2021. On August 12, 2021, the Committee held a hearing during which the parties were allowed to participate electronically. 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. 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 civil or criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the records: (1) Reasonably could be expected to interfere with the enforcement proceedings; or (2) Could create a danger of depriving a person of a right to a fair trial or impartial hearing.

3. Counsel for Respondent argued that the body camera record was created and maintained for civil and criminal enforcement purposes. The recording depicts the deployment of a police dog by a Salt Lake City Police Department K-9 Officer on a subject who is believed to have stolen a vehicle. Counsel added that the deployment of the police dog is the subject of an aggravated assault prosecution by the Salt Lake District Attorney’s Office, and the prosecution is currently active with a preliminary hearing set for November 16, 2021. Counsel contended that release of the recording “would create a danger of depriving the K9 officer of a right to a fair trial or impartial hearing, and could reasonably be expected to interfere with the court proceedings…against that officer.”

4. Additionally, a Declaration from the attorney representing K-9 Officer was included in the materials provided by Respondent. The Officer’s attorney opposes the release of the record, stating releasing the body camera footage “will create a danger of interfering with the K-9 Officer’s right to due process in a court of law.”

5. After having considered all of the evidence and arguments presented by both parties, the Committee is persuaded by Respondent’s claim that release of the record reasonably could be expected to interfere with civil or criminal enforcement proceedings and create a danger of depriving a person of a right to a fair trial or impartial hearing. Accordingly, the Committee finds that the record was properly classified as a protected record by Respondent pursuant to Utah Code § 63G-2-305(10)(b) & (c).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jessica Miller on behalf of the Salt Lake Tribune, 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 23 day of August 2021

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee