State Records Committee Appeal Decision 2022-27

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COURTNEY TANNER, Petitioner, v.

UNIVERSITY OF UTAH, Respondent.

DECISION AND ORDER

Case No. 22-27

By this appeal, Petitioner, Courtney Tanner, an investigative reporter with The Salt Lake Tribune, seeks access to records allegedly held by Respondent, University of Utah.

FACTS

On February 14, 2022, Ms. Tanner, on behalf of the Salt Lake Tribune, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Ms. Tanner requested any police reports regarding two University of Utah students, Haoyu Wang and Zhifan Dong. In February 2022, Wang was charged with a felony for the murder of Dong. Ms. Tanner stated in her request that she is “a journalist working to benefit the public by informing people about this tragic case involving two U. students, one who was murdered.” Ms. Tanner also made a request for a fee waiver. On March 4, 2022, the Police Records Manager for Respondent denied the request, finding the records to be protected pursuant to Utah Code § 63G-2-305(10) and private pursuant to Utah Code § 63G-2-302(2)(d).

In a letter dated March 8, 2022, Ms. Tanner filed an appeal with Respondent’s Administrative Manager, arguing that initial contact reports involving Dong and Wang should be public. Tanner also argued that any “claims of privacy are outweighed by the public’s right to know how a university responded and what a university knew before a student was killed in a case that is known to the public already.” On March 15, 2022, Todd Samuelson, Chief Administrative Officer and Appeals Officer for Respondent, denied the appeal finding that the records had been appropriately classified. Mr. Samuelson found that the “current release of such records may interfere with current investigations and are thus remaining protected at this time.”

Ms. Tanner 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. 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. Initial contact reports are normally public, but to the extent that a record is expressly exempt from disclosure, access may be restricted pursuant to Utah Code § 63G-2-302. Utah Code § 63G-2-301(3)(g). Initial contact reports are defined by GRAMA as an initial written or recorded report prepared by peace officers engaged in public patrol or response duties describing official actions initially taken in response to the discovery of an apparent violation of law. Utah Code § 63G-2-103(14)(a).

3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).

4. Counsel for Respondent argued that a search for records responsive to Ms. Tanner’s records request resulted in one police report. Counsel stated that the “police report at issue in this appeal relates to the death of a University student and an active murder prosecution against another University student.” Counsel further stated that the Salt Lake County District Attorney’s Office instructed Respondent to not produce any records related to the case, including the initial contact report, until the investigation “is complete and the pending case has been adjudicated.”

5. After having considered all of the arguments of the parties, and having reviewed the record in camera, the Committee finds that the record is an initial contact report and should be classified as a public record pursuant to Utah Code § 63G-2-301(3)(g). The Committee also finds that information contained within the record should be redacted pursuant to Utah Code § 63G-2-302(2)(d) because disclosure of the information would constitute a clearly unwarranted invasion of personal privacy. The Committee finds that any fees associated with the production of this document should be paid.  

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Courtney Tanner, is hereby GRANTED.

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