State Records Committee Appeal Decision 2021-57

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NICOLE K. NOREN (ESPN), Petitioner, v.

UNIVERSITY OF UTAH, Respondent.

DECISION AND ORDER

Case No. 21-57

By this appeal, Petitioner, Nicole K. Noren on behalf of ESPN, requests records allegedly held by Respondent, the University of Utah.

FACTS

On March 26, 2021, Ms. Noren, a Producer with ESPN, made a request for records from Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Noren requested copies of all audio and video interviews from Respondent associated with the Lauren McCluskey case. After payment of an estimated fee, Respondent provided copies of records to Ms. Noren with names, images, and identifying information of certain individuals, redacted or altered in order to protect the identity of those individuals pursuant to Utah Code § 63G-2-302(2)(d).

On July 15, 2021, Ms. Noren filed an appeal with Respondent’s Administrative Manager to the Records Officer, stating that some of the records were missing and for the videos produced, the pixilation and the audio alterations were unwarranted. In a letter dated July 29, 2021, Gregory C. Thompson, Respondent’s Appeals Officer, denied the appeal.

On August 28, 2021, Ms. Noren filed an appeal with the State Records Committee (“Committee”). On November 18, 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. In the present case, there are two issues for the Committee’s consideration: (1) Whether the alterations made by Respondent of the videos provided to Ms. Noren were warranted; and (2) Whether all records responsive to the records request were provided to Ms. Noren.

2. Respondent argues that the video alterations (pixilation of pictures and voice modifications) were warranted pursuant to Utah Code § 63G-2-302(2)(d). Respondent contends that release of the videos without the alterations would be a clearly unwarranted invasion of personal privacy of the individuals featured in the videos. Petitioner argues that the alterations of the videos have greatly diminished the quality of the videos for use in a television documentary to be produced by ESPN.

3. After having review portions of the altered videos, the Committee finds that the alterations are allowed pursuant to Utah Code § 63G-2-302(2)(d) because release of unaltered versions of the videos would be a clearly unwarranted invasion of personal privacy.

4. Petitioner also argues that certain interviews were not provided by Respondent. Respondent acknowledged that some interviews may have taken place. Unfortunately, after a thorough search, Respondent claims that it was unable to retrieve these records.

5. After having reviewed the parties’ arguments and evidence provided to the Committee, the Committee finds that reasonable efforts were made by Respondent to find the requested records. Although reasonable efforts were made, the Committee nevertheless encourages Respondent to further search for the missing records in order to find any records that may have not yet been located.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nicole K. Noren on behalf of ESPN, 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 30th day of November 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee