State Records Committee Appeal Decision 2022-24

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ADAM HERBETS, Petitioner, v.

UNIFIED POLICE, Respondent.

DECISION AND ORDER

Case No. 22-24

By this appeal, Petitioner, Adam Herbets, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, Unified Police.

FACTS

On January 26, 2022, Mr. Herbets made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Herbets requested copies of all body camera footage of three police officers involved in two incidents. The records included body camera footage taken inside a medical facility. Nicki Dokos, Records Supervisor for the Respondent, denied the request on January 27, 2022, finding that the video camera footage was properly classified as a protected record because the cases had not yet been adjudicated.

On January 28, 2022, Mr. Herbets filed an appeal. In an email, dated February 7, 2022, Harry Souvall, Chief Legal Counsel for Respondent, affirmed Ms. Dokos’ decision, finding that pursuant to Utah Code § 63G-2-305(65), audio or video recording created by a body-worn camera that records sound or images inside a hospital or health care facility, is a protected record if properly classified by the governmental entity.

Mr. Herbets filed an appeal with the State Records Committee (“Committee”). On May 19, 2022, after having heard testimony and oral argument from the parties, the Committee unanimously voted to continue the hearing in order to allow the Committee members to have an opportunity to review the body camera footage in camera. See, Herbets v. Unified Police, State Records Committee Case No. 22-17. On June 2, 2022, the Committee held a second hearing. 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 a “record is 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. Utah Code § 63G-2-305(65) states that an audio or video recording created by a body-worn camera that records sounds or images inside a hospital or health care facility, is a protected record if properly classified by a governmental entity except for recordings that: (1) Depict the commission of an alleged crime; (2) Record any encounter between a law enforcement officer and a person that results in death or bodily injury, or includes an instance when an officer fires a weapon; (3) Record any encounter that is the subject of a complaint or a legal proceeding against a law enforcement officer or law enforcement agency; (4) Contain an officer involved critical incident as defined in Utah Code § 76-2-408(1)(f); or (5) Have been requested for reclassification as a public record by a subject or authorized agent of a subject featured in the recording.

3. An in camera review of the subject video body camera recordings show that they contain sounds and images inside a hospital or health care facility. The review of the recordings also show that none of the exceptions found in Utah Code § 63G-2-305(65)(a-e) apply. Therefore, the Committee finds that the recordings were properly classified as protected records pursuant to Utah Code § 63G-2-305(65). Additionally, when considering the weighing provision found in Utah Code § 63G-2-403(11)(b), the Committee finds that the public interest favoring access is not greater than or equal to the interest favoring restriction of access. See also, McKitrick v. Gibson, 2021 UT 48, 496 P.3d 147, fn. 11. Accordingly, the Committee upholds the decision of Respondent denying access of the recordings to Petitioner.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, 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 13 day of June 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee