State Records Committee Appeal Decision 2023-27

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ADAM HERBETS (Fox 13), Petitioner, vs

UTAH DEPARTMENT OF CORRECTIONS, Respondent,

DECISION AND ORDER

Case No. 23-27

By this appeal Adam Herbets (“Petitioner”), requests records allegedly held by Utah Department of Corrections (“Respondent”).

FACTS

In November, 2022, Wasatch County Sheriff, Jared Rigby, was nominated to serve as the director of Peace Officer Standards and Training (“POST”), an elevated state position. However, shortly before his swearing-in ceremony, Petitioner aired an investigative report about Sheriff Rigby’s treatment of some police officers. From that report, the swearing-in ceremony that was scheduled in January, 2023, was delayed and a closed meeting was held to further examine and discuss Sheriff Rigby’s fitness for the position. The POST Council ultimately voted to rescind Rigby’s appointment and begin the search for a new candidate from scratch.

On February 1, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested copies of all electronic communication, including, but not limited to, emails and text messages between Wasatch County Sheriff, Jared Rigby, and Brian Nielson from June 30, 2022, through present day.

The Respondent’s Director of Administrative Services responded to Petitioner’s GRAMA request on February 8, 2023, stating that he was partially denying the request. Respondent delivering two responsive emails with email addresses redacted per §63G-2-302(2)(d), but withheld two other emails and several text messages on the grounds that their disclosure would constitute an unwarranted invasion of personal privacy. Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”),

On February 16, 2023, the CAO responded. In his denial response, the CAO stated that the records were correctly classified as “private” under Utah Code §63G-2-302(2)(d) because releasing the records would constitute an unwarranted invasion of personal privacy. Further, the CAO believed the records were also private under Subsection 302(2)(a) because the records concerned a current or former employee of, or applicant for employment with a government entity. And finally, the CAO stated that some records contained personal communications that do not satisfy the definition of “record” under the GRAMA.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On June 15, 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 are asked to determine if the withheld records are properly classified and, if so, whether they should be disclosed.

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, if a record is properly classified as either “private,” “protected,” or “controlled,” then the requester is not entitled to a copy of the record. Utah Code § 63G-2-201(5)(a). In that event, the requester may appeal and bring the matter before this Committee which has the authority to view the disputed records in camera to determine if the records are properly classified. Utah Code § 63G-2-(9)(a)(ii). If the Committee determines that the records are incorrectly classified and should be released, the Committee may order it so. On the other hand, if the Committee determines the records are properly classified, then it may weigh “the various interests and public policies pertinent to the classification and disclosure or nondisclosure” and issue its order accordingly. Utah Code § 63G-2-403(11)(b).

The Committee voted by motion to view the disputed records in camera. Upon reviewing them, the Committee finds that although the records contain some personal email addresses the records are incorrectly classified and are not subject to the protections of Subsections 302(2)(d) nor (302)(2)(a). We find that the records are public and should be disclosed to Petitioner with personal email addresses redacted.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED. The Respondent is ordered to release the requested records with only the personal email addresses of recipients redacted.

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 26 day of June 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee