State Records Committee Appeal Decision 2022-60

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JEFFREY WETSEL, Petitioner, v.

PRICE CITY POLICE DEPARTMENT, Respondent.

DECISION AND ORDER

Case No. 22-60

By this appeal, Jeffrey Wetsel (“Petitioner”), requests a fee waiver and records allegedly held by Price City Police Department (“Respondent”).

FACTS

This appeal concerns a records request surrounding a police call regarding a child custody dispute. The relevant facts of the dispute are briefly recited to help understand the nature of the records request and the appropriate considerations under the GRAMA for their restriction or disclosure.

Petitioner and Chelsea Wiggains have a daughter. On or around December 21, 2021, the two disputed the length of time he was allowed to have his daughter in his custody. Ms. Wiggains called the Price City Police Department which promptly responded to the call. Responding officers determined that no criminal activity had transpired and that if Ms. Wiggains believed Petitioner was acting improperly, it was a civil matter requiring an attorney. The records connected to this police call are the basis for the appeal.

On December 24, 2022, Petitioner submitted a Government Records Access and Management Act (“GRAMA”) records request to Respondent for certain records pertaining to a police call made by Chelsea Wiggains on December 19, 2021. Petitioner specifically requested:

1. “[A]ll logs, reports, notes, emails, messages, audio of the call into dispatch . . . as well as any other calls that were in regards [sic] to CFS# 21034195”;

2. A copy of all inbound and outbound communication on the cell phone (official government phone or personal) that Officer Matt Montoya used to conduct official business with Ms. Wiggains;

3. Officer Montoya’s schedule for December 19, 2021; and

4. Any log that would show how Officer Montoya was assigned to the police call.

On January 10, 2022, Respondent responded to Petitioner’s request stating that Officer Montoya was initially dispatched to the call, but it was discovered that he had a conflict of interest with the involved parties. As a result, Officer Luke Kale was then assigned to handle the call. Respondent also informed Petitioner that after the call was handled, Officer Kale and Sgt. TJ Robertson presented the complaint to Respondent’s administration and the Carbon County Attorney. Upon review, it was determined that the incident was a civil matter, not a criminal one. Accordingly, no charges were filed, and Ms. Wiggains was told to contact an attorney if she wanted to pursue a civil action. Respondent informed Petitioner that because no crime occurred, there were no police reports on file for the complaint. It appears that “activity log reports” were also supplied to Petitioner, along with Respondent’s officers’ schedule and an interdepartmental email from Sgt. Robertson updating officers on the situation between Petitioner and Ms. Wiggains.

Petitioner then submitted a new GRAMA request to Respondent requesting the following:

1. All call records for the officers who responded to and handled the complaint, including any inbound or outbound calls to three specific phone numbers Petitioner listed.

2. All body camera footage from responding officers.

3. All footage from Respondent’s security cameras that might have recorded the meeting between Ms. Wiggains, Frankie Hathaway (Ms. Wiggains’s mother), and Sgt. Robertson that occurred on December 20, 2021.

4. All video and audio recordings or written notes of the “Brief with Captain and Chief,” “Brief with Crew,” “Chelsea Wiggains custody issues” listed on Officer Timothy Robertson’s activity log report.

On February 7, 2022, Respondent denied his request in full. Respondent claimed that (1) it does not save or catalog the requested call records; (2) body camera footage is protected under the GRAMA; (3) the police department’s security footage expires after a temporary period and the footage requested no longer exists; and (4) No records exist concerning the briefs with “Captain and Chief,” nor the “Crew.”

Petitioner timely filed an appeal with the chief administrative officer (“CAO”), Mayor Michael Kourianos; however, Mayor Kourianos failed to respond. A CAO’s failure to decide an appeal constitutes a denial of petitioner’s appeal under Utah Code § 63G-2-401(5)(b)(i). Thus, Petitioner’s appeal to Mayor Kourianos was denied for purposes of the GRAMA.

Petitioner has now appealed to the State Records Committee (“Committee”) on two primary grounds: The denial of the phone records and the body camera footage. On December 15, 2022, the Committee held a hearing during which the parties were allowed to participate. For the reasons set for the below, the Committee issues this Decision and Order.

STATEMENT OF REASONS FOR DECISION

The hearing of this appeal was held on December 15, 2022. The Committee’s Executive Secretary, Rebekkah Shaw, gave the parties adequate notice of the hearing. However, neither party attended the scheduled hearing. Accordingly, we find that the parties have abandoned their appeal and it should be dismissed.

ORDER

THEREFORE, because of the foregoing reasons, Petitioner’s appeal is hereby DISMISSED and the decision of the CAO is left in force.

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 27th day of November 2022

BY THE STATE RECORDS COMMITTEE

_________________________________________
NANCY DEAN
Acting Chair, State Records Committee