State Records Committee Appeal Decision 2021-54

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ERIC PETERSON, Petitioner, v.

UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.

DECISION AND ORDER

Case No. 21-54

By this appeal, Petitioner, Eric Peterson, a reporter with the Utah Investigative Journalism Project, seeks access to records held by Respondent, the Utah Department of Public Safety.

FACTS

On February 12, 2021, Mr. Peterson made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Peterson requested records related to a protest/demonstration that took place on January 6, 2021 at the Utah State Capitol. On March 31, 2021, Mr. Peterson amended his original records request. Mr. Peterson’s records requests were denied by Respondent based upon the records being exempt from GRAMA pursuant to Utah Code § 63G-2-106. Mr. Peterson filed an appeal of the denial and in a letter dated April 19, 2021, Respondent’s Quality and Process Improvement Director upheld the previous denial.

Mr. Peterson filed an appeal with the State Records Committee (“Committee”). Prior to hearing the appeal, Mr. Peterson submitted a letter to the Committee “to clarify the issues” in his appeal. In his letter, Mr. Peterson stated that records had been provided by Respondent through negotiations resulting in “more issues at dispute.” The issues Mr. Peterson stated that should be addressed by the Committee in his appeal were: (1) Denial of an initial contact report from a second January 6, 2021 incident at the Utah State Capitol; (2) Redactions of the basic narrative from the second January 6, 2021 incident; and (3) An unreasonable fee regarding production of those records.

On October 28, 2021, the Committee held a hearing during which the parties were allowed to participate. 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. Based upon the written materials presented and the testimony given during the hearing, it became apparent to the Committee that any issues regarding Mr. Peterson’s February 12, 2021 and March 31, 2021 amended records requests had already been resolved and/or were not argued before the Committee. The issues presented in Mr. Peterson’s “clarification” of the issues were not issues related to Mr. Peterson’s initial records requests. In fact, the testimony demonstrated that records relating to a second January 6, 2021 incident are not records responsive to Mr. Peterson’s February 12, 2021 or March 31, 2021 records requests. Legal Counsel for Respondent argued that these issues were not ripe for appeal to the Committee because “[n]o appeal of this GRAMA request has been made – because it has not been denied.”

2. Accordingly, the Committee finds that Mr. Peterson’s appeal should be denied because no issues regarding Mr. Peterson’s February 12, 2021 records request or his March 31, 2021 amended records request have been presented to the Committee. The issues presented by Mr. Peterson’s clarification letter are not properly before the Committee at this time because the appeals process has not yet concluded.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, 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 8 day of November 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee