State Records Committee Appeal Decision 2023-25

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COURTNEY JOHNS, Petitioner, vs

UTAH COUNTY SHERIFF’S OFFICE, Respondent,

DECISION AND ORDER

Case No. 23-25

By this appeal, ABC4 reporter, Courtney Johns (“Petitioner”), requests records allegedly held by Utah County (“Respondent”).

FACTS

On March 14, 2023, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking the Utah County Jail’s visitor log for Jonathan Soberanis.

On March 15, 2023, Respondent denied the request, stating the visitor log was classified as a private record because disclosing it would constitute “a clearly unwarranted invasion of personal privacy.” Additionally, Respondent stated that the log contained protected records subject to the attorney-client privilege.

Petitioner appealed to Respondent’s chief administrative officer (“CAO”) arguing that disclosing the log was not an unwarranted invasion of personal privacy under Deseret News Pub. Co. v. Salt Lake Cnty., 2008 UT 26, in which the Court analyzed records disclosure and privacy interests. Petitioner also argued that the attorney-client privilege did not apply to the log because the log doesn’t contain any actual information on communication between the attorney and client other than the fact that the attorney visited. However, Petitioner’s appeal was deemed untimely by the CAO because the CAO claimed it was received past the statutory period of limitations. As a result, the CAO declined to address the substance of Petitioner’s appeal and allowed the decision of the Sheriff’s Office to stand.

Petitioner then appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. During the pendency of the appeal, Respondent agreed to provide the visitor log but with some redactions.

On May 25, 2023, 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.

ISSUES FOR REVIEW

We must determine whether the visitor log for Jonathan Soberanis may be disclosed under the GRAMA.

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, a record that is private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5).

In determining whether a record is properly classified as private or protected, this Committee holds the authority to view the record in camera to determine its classification. Utah Code § 63G-2-403(9)(ii). If the records are properly classified to warrant denying the record request, then the Committee may weigh the various interests favoring disclosure against those favoring restriction of access to determine if the record should be released. Utah Code § 63G-2-403(11)(b)-(c).

After hearing the parties’ arguments, the Committee moved to view the visitor log in camera to determine whether the records were properly classified. In reviewing the visitor log, we found the information contains standard visitor information with nothing more except for visitor addresses and phone numbers. As a result, we determine that only the addresses and phone numbers warrant protection under the GRAMA, and that releasing the remainder of the log is not an unwarranted invasion of personal privacy.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is GRANTED. Respondent is ordered to disclose the visitor log but may redact visitors’ addresses and phone numbers.

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 5 day of June, 2023

BY THE STATE RECORDS COMMITTEE

Nancy Dean
Chair pro tem, State Records Committee