State Records Committee Appeal Decision 2022-55

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LYNN DAVID, Petitioner, v.

WASATCH COUNTY, UTAH, Respondent.

DECISION AND ORDER

Case No. 22-55

By this appeal, Lynn David (“Petitioner”), requests records allegedly held by Wasatch County, Utah (“Respondent”).

FACTS

On July 25, 2022, Petitioner submitted a request for records to Respondent pursuant to the Governmental Records Access and Management Act (“GRAMA”). The request was for records pertaining to law enforcement’s interaction with him and others on July 22, 2022, when a resident in Brighton Estates (Wasatch County, Utah) complained to law enforcement that Petitioner had been photographing and following his employees. The resident did not wish to file a criminal complaint but asked only that an officer speak with Petitioner about the situation.

Upon being questioned by a responding officer, Petitioner explained he was documenting the workers’ activities because he believed they were mining rocks illegally. The responding officer told Petitioner to report his concern to Wasatch County Building and Licensing Department. After that, Petitioner agreed to keep his distance from the resident’s employees.

Petitioner then filed a GRAMA request with Respondent for the complete records concerning this interaction with law enforcement, including the responding officer’s notes, interview transcripts, the initial complaint, any available body camera footage, and any and all internal communications Wasatch County governmental officials might have had regarding the incident. Respondent transferred the request to Wasatch County Sheriff’s Office which responded by delivering to Petitioner its “Law Incident Table.” The Law Incident Table consisted of the resident’s intake call to law enforcement, the responding officer’s written report, and information on four individuals, including Petitioner and the complaining resident, who the responding officer had made contact with at the site.

Petitioner appealed this response to Respondent’s chief administrative officer, claiming that there were still outstanding records he requested, such as the officer’s interviews with the other subjects at the site, any communications on the matter within Respondent’s office, and body camera footage. This appeal was met with Respondent delivering an additional police report and body camera footage of Petitioner’s interaction with the responding officer that were inadvertently omitted from the initial delivery. Respondent claimed that beyond those two additional items it holds no other responsive records.

Petitioner appealed to the State Records Committee (“Committee”) claiming he has not received two outstanding records: The responding officer’s body cam footage and interview notes for the two individuals the officer spoke with immediately after he interviewed Petitioner. Petitioner concedes that all responsive records except for these two remaining items have been delivered. Respondent claims that the remaining items he seeks are not in its possession, if they exist at all.
The Committee held a hearing on November 17, 2022. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After carefully considering all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

The GRAMA states that a person “has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours . . . .” Utah Code § 63G-2-201(1)(a). However, in response to a request for records, a governmental entity is not required to create a record where one does not exist. Utah Code § 63G-2-201(8)(a). In addition, if a governmental entity determines that responsive records don’t exist, then the requester bears the burden on appeal to provide sufficient evidence that they do. See Utah Administrative Code R35-2-2(2).

Here, Petitioner has produced no evidence disputing Respondent’s claim that it doesn’t have the records in its possession. Petitioner makes a compelling point that with the police officer’s body cam recording his own interaction with the officer, the camera should have also recorded the officer’s interaction with the other two individuals that occurred immediately after his own. However, Respondent testified that, notwithstanding Petitioner’s logic, the body cam footage of the other individuals cannot be found.

Respondent explained at the hearing that its officers’ body cam footage is routinely uploaded into Respondent’s database. Upon upload, all body cam footage is labeled by date and time and then organized into respective folders. Respondent testified that in effort to find the footage in question, it searched its database by both date and officer name, together and individually, and then reviewed the uploaded footage for each search. Respondent further testified that this search effort produced no responsive results, nor did its query for any interview notes. We find that Respondent’s search efforts were reasonable, and Respondent has no further duty concerning the requested records.

As mysterious as it may be that an officer’s body cam captures footage of one individual’s interaction with the officer but not others at the same incident, it is not our task to explore realms of the unknown. We must rigidly apply the law to the facts in an impartial way regardless of the outcome and without consideration to why records may not exist. If there are no responsive records in Respondent’s possession, it has no obligation to create them. Utah Code § 63G-2-201(8)(a). And because Petitioner has provided no evidence showing that Respondent has the remaining records in its possession, we must determine that, given Respondent’s search efforts for these remaining items were reasonable, Respondent owes no further duty to Petitioner on this matter.

ORDER

THEREFORE, for the foregoing reasons, we hereby order Petitioner’s appeal is 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 November 2022

BY THE STATE RECORDS COMMITTEE

________________________________________
NANCY R. DEAN
Acting Chair, State Records Committee