State Records Committee Appeal Decision 2022-47

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NATE CARLISLE on behalf of KSTU-FOX 13 UTAH, Petitioner, v.

SALT LAKE COUNTY DISTRICT ATTORNEY’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 22-47

By this appeal, Petitioner, Nate Carlisle on behalf of KSTU-Fox 13 Utah, requests access to records allegedly held by Respondent, the Salt Lake County County District Attorney’s Office.

FACTS

On or about March 31, 2022, Mr. Carlisle, an investigative reporter with KSTU-Fox 13 Utah (“Petitioner”), filed a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested any statement, and recorded interviews given and had by Mamie Reeder in conjunction with two cases prosecuted by the Salt Lake County District Attorney’s Office (“DA”): State v. Wellen, case no. 181905553, and State v. Malachowski, case no. 181903984. In a response dated April 14, 2022, the DA denied the request stating:

“[y]our request is denied because potentially responsive records contain information that was the subject of, quoted, or otherwise referenced in court documents and hearings that were ordered protected by the Third District Court in case no. 181903984 to prohibit the release of information. In addition, the records you seek contain information about the private and business affairs of various individuals.”

Petitioner appealed the denial to the DA’s Chief Administrative Officer (“CAO”), Megan Hillyard, on June 24, 2022. Ms. Hillyard failed to respond to the appeal within ten business days as required by Utah Code § 63G-2-401(5)(b)(i), and in a belated email affirmed that her lack of timely response constitutes a denial of his appeal.

Petitioner then filed this appeal with the State Records Committee (“Committee”). On October 13, 2022, the Committee held a hearing. At the hearing, the Committee considered the written materials 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

The DA and its CAO had denied Petitioner’s requests, essentially, for two reasons: (1) The records were protected by court order; and (2) The DA properly classified the information as private under the GRAMA. We address each in turn.

1. Records Protected by Court Order

Utah Code § 63G-2-201(1)(a) allows a person to inspect a public record free of charge. The GRAMA then lays out a framework that establishes whether a record is public, and able to be inspected if at all. In addition to directly defining what a “public record” is, the statutory scheme adds further clarity by establishing what it is not: “The following records are not public: a record that is private, controlled, or protected . . . and a record to which access is restricted pursuant to court rule. . . .” Utah Code § 63G-2-201(3)(a)-(b). Thus, when a court rules that a record is “private,” the GRAMA defers to the court for not just its classification, but also its release.

Under the GRAMA, “the disclosure of a record to which access is governed or limited pursuant to court rule . . . is governed by the specific provisions of that . . . rule.” Utah Code § 63G-2-201(6)(a). In this matter, Petitioner requested records that concerned two cases the DA was prosecuting. On March 23, 2019, Third District Court Judge Kara Pettit ordered the records at issue here to be private. Because the records were classified as private by court rule, the GRAMA requires disclosure to also be governed by the court. Consequently, Petitioner’s request for the sought-after records must be directed to the court and made in accordance with the Utah Code of Judicial Administration and Utah Rules of Civil Procedure as they pertain to requesting access to court records associated with a case. Thus, under § 201(6)(a), the Committee must defer to the court.

2. Records Classified as Private by the DA

Petitioner further sought any records related to the above cases that were not under the court’s protection but in the DA’s possession. The DA has maintained that all responsive records in its possession are the source material for the motions, court papers, and transcripts that are covered by the court’s orders. Therefore, the DA argues, the information it possesses is the same information Judge Pettit classified as private.

The Committee can neither confirm nor reject the DA’s position. Even if the Committee examined the responsive records in the DA’s possession and determined that the DA erred in classifying them as private, we still could not order their disclosure to Petitioner without verifying that the records do not fall under the umbrella of the court’s orders. That is, without being able to view the records under Judge Pettit’s control and compare them to the records the DA possesses, the Committee has no way of knowing whether the DA’s records fall outside the purview of the court’s orders and may be subject to disclosure. As a result, this Committee cannot venture to investigate responsive documents held by the DA until Petitioner successfully moves the court to allow this Committee to examine the records ordered private.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nate Carlisle, on behalf of KSTU-Fox 13 Utah, 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 24 day of October 2022

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS

Chair, State Records Committee