State Records Committee Appeal Decision 2022-04

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRIAN DONEGAN, Petitioner, v.

GRAND COUNTY SHERIFF’S DEPARTMENT, Respondent.

DECISION AND ORDER

Case No. 22-04

By this appeal, Petitioner, Brian Donegan, seeks access to records allegedly held by Respondent, the Grand County Sheriff’s Office.

FACTS

On August 24, 2021, Mr. Donegan made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Grand County Sheriff’s Office. Mr. Donegan requested any and all information relating to the murder of Kylen Schulte and Crystal Turner including type/caliber of the weapon, type of wounds, and the exact location of where the bodies had been found. In a letter dated August 25, 2021, Christina Sloan, Grand County Attorney, denied the request stating that release of the records could reasonably be expected to interfere with a pending investigation and/or create a danger of depriving a person a right to a fair or impartial hearing pursuant to Utah Code § 63G-2-305(10).

Mr. Donegan appealed the denial on September 8, 2021 to Grand County’s chief administrative officer. In a letter dated September 8, 2021, Chris Baird, Grand County Commission Administrator affirmed the denial of Mr. Donegan’s records request. Mr. Baird stated that “an active investigation is underway for this incident” and reaffirmed that release of the information could reasonably be expected to interfere with the investigation.

On October 7, 2021, Mr. Donegan filed an appeal with the State Records Committee (“Committee”). On January 20, 2022, the Committee held a public hearing and considering 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 criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to: (1) Interfere with investigations undertaken for enforcement proceedings; or (2) Create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(a) & (c).

3. Christina Sloan, Grand County Attorney, stated during the hearing that the murder investigation is still active and ongoing. Ms. Sloan stated that Grand County “must protect the Records because the interest of justice, the constitutional right to a fair trial and public safety outweighs the public’s interest in further disclosure.

4. After carefully considering all of the evidence presented, the Committee finds that the subject records are protected records not subject to disclosure pursuant to Utah Code §§ 63G-2-305(10). The Committee is persuaded that release of the records of an ongoing investigation could interfere with the investigation and potentially deprive a person of their right to a fair trial.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Brian Donegan, 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 31st day of January 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee