State Records Committee Appeal Decision 2022-25

BEFORE THE STATE RECORDS COMMITTEE STATE OF UTAH

ADAM HERBETS, Petitioner, v.

UTAH COUNTY ATTORNEY’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 22-25

By this appeal, Petitioner, Adam Herbets, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, the Utah County Attorney’s Office.

FACTS

In an e-mail dated February 1, 2022, Mr. Herbets on behalf of Fox 13 News, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Respondent. Mr. Herbets requested copies of all letters or e-mails received by the Utah County Sheriff’s Office explaining decisions by prosecutors with Respondent relating to the charging of a specified individual who was arrested in January 2022. Mr. Herbets stated that he is “a journalist who intends to use the data to inform the public about information contained in these public records.”

In an e-mail dated February 4, 2022, Respondent denied the records request stating that the records are protected records pursuant to Utah Code §§ 63G-2-305(18) & -305(10)(a-c) because there were ongoing investigations. Mr. Herbets filed an appeal with Chair of the Board of Utah County Commissioners, who affirmed Respondent’s denial of the records request in a letter dated February 16, 2022.

Mr. Herbets filed an appeal with the State Records Committee (“Committee”). On June 16, 2022, 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. The Committee viewed the records in camera. 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. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity pursuant to Utah Code § 63G-2-305(18).

3. Records created or maintained for 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 investigations undertaken for enforcement; (2) Reasonably could be expected to interfere with enforcement proceedings; or (3) Would 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).

4. Mr. Herbets argued that the public has a right to know the information contained in the requested records because “it is impossible for the public to know why the Utah County Attorney’s Office declined to prosecute this case, despite indications from law enforcement that [the accused] violated state law.” Mr. Herbets further argued that the public should know about the details of the case because of “the relationship between the suspect and Utah County Attorney David Leavitt” including the individual working as a handyman at Leavitt’s home.

5. The Committee reviewed the responsive records in camera. After having reviewed the records, the Committee finds that the records were properly classified by Respondent as protected records pursuant to Utah Code §§ 63G-2-305(18) & -305(10)(a-c).

6. Additionally, the Committee may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order disclosure of information properly classified as protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access pursuant to Utah Code § 63G-2-403(11)(b). See also, McKitrick v. Gibson, 2021 UT 48, 496 P.3d 147, fn. 11. A review of the records shows that the records contain nothing in the public interest, and that release of the records would create a danger of depriving the accused of a right to a fair trial or impartial hearing. 

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 governmental 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 28 day of June 2022

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee