State Records Committee Appeal Decision 2022-38

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ERIC PETERSON, Petitioner, v.

ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 22-38

By this appeal, Petitioner, Eric Peterson, a reporter with the Utah Investigative Journalism Project, seeks access to records held by Respondent, Attorney General’s Office (“AGO”).

FACTS

On December 14, 2020, Mr. Peterson made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Peterson requested access to AGO’s review of a Department of Natural Resources investigative report from a 2018 hunt. Respondent denied the request stating that it should remain classified as protected pursuant to Utah Code § 63G-2-305(10)(a)-(e) because the release of the requested records could be expected to reasonably interfere with an ongoing criminal investigation and enforcement proceedings.

Mr. Peterson filed an appeal with the State Records Committee (“Committee”). On August 18, 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 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. The Committee agrees that the records were properly classified as “protected,” pursuant to Utah Code Annotated § 63G-2-305(10)(a)-(e). Specifically, though the Committee finds that all of the subsections of Section (10) could be applicable, the Committee is most persuaded that subsection (c) justifies the classification of the record because the record is the subject of a pending criminal case.

2. The Committee also weighed whether there was a public interest in the release of the records. Utah Code Annotated §63G-2-406(1) says:

A record that is classified as protected under Subsection 63G-2-305(10), (17), (18), (23), (24), or (33) may be ordered to be disclosed under the provisions of Subsection 63G-2-401(6), 63G-2-403(11)(b), or 63G-2-404(7)(a) only if the person or party seeking disclosure of the record has established, by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.

The Committee finds that Petitioner did not establish, by a preponderance of the evidence, that there is a public interest in disclosure equal to or greater than the interest in maintaining the classification.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, 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 29 day of August. 2022.

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee