State Records Committee Appeal Decision 2023-47

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ITV AMERICA, Petitioner, vs

SALT LAKE COUNTY SHERIFF’S OFFICE, Respondent

DECISION AND ORDER

Case No. 23-47

By this appeal ITV America (“Petitioner”), requests a fee waiver for requested records held by Salt Lake County Sheriff (“Respondent”).

FACTS

Petitioner is a producer of documentaries and other programming. On April 18, 2023, the Respondent received a record request from Petitioner pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner made this request so that it could gather information for a documentary series it desires to produce on the criminal case of Jamie Ridd, who pled guilty to purchasing a harmful biological agent so she could inject it into her roommate. Specifically, the request was for the “audio of the jail calls placed by Janie Lynn Ridd” that were made from the Salt Lake County Adult Detention Center on the following dates:

• 12/20/1029
• 12/23/2019
• 12/25/2019
• 12/29/2019
• 12/30/2019
• 12/31/2019
• 1/1/2020
• 1/20/20

At least some of these recordings were used in Ms. Ridd’s prosecution.

In a succinct response, the Respondent denied the request, stating that the records were classified as private under Utah Code 63G-2-302 and/or protected under 63G-2-305.

Petitioner appealed the denial to the Respondent’s chief administrative officer (“CAO”). Petitioner argued that the denial was improper because the denial gave no explanation for the denial other than “perfunctory citations to section 302 (which has 37 different subsections) and section 305 (which has over 80).” Petitioner argued that because the Respondent bears the burden of establishing the applicability of one of GRAMA’s exceptions to the presumption of public access, and it did not adequately do so, it waived the right to rely on these sections to deny access. Additionally, petitioner argued that phone calls from a jail cell could not be classified as private because, in essence, there was no expectation of privacy in a jail cell due to the monitoring and surveillance. And as to the denial because the records could be classified as protected under Section 305, Petitioner argued that because the investigations into Mr. Ridd had been complete, the records could not be protected, and that even if they were, the interests favoring access are greater than those favoring restriction of access. However, in a detailed response, the CAO addressed each argument and ultimately upheld the decision to deny the record request.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On September 21, 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 (1) whether recordings of Ms. Ridd’s calls while she was incarcerated are public records available under GRAMA; (2) if they are, whether Respondent has classified them correctly; and (3) if the classifications are correct, whether the records may still be released.

STATEMENT OF REASONS FOR DECISION

I. The Recorded Phone Calls Are Records Under GRAMA

Under the GRAMA, “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). “Record,” in turn is a matter of definition, and the pertinent provisions of GRAMA’s definition of “record” for this appeal are, first, what a record is:
(a) “Record” means a . . . recording, . . . or other documentary material regardless of physical form or characteristics:
(i) That is prepared, owned, received, or retained by a governmental entity . . .; and
(ii) Where all of the information in the original is reproducible by . . . mechanical or electronic means.
Utah Code § 63G-2-103(25)(a)(i)-(ii).

And, second, what a “record” is not:

(b) “Record” does not mean:
(i) A personal note or communication prepared or received by an employee or officer of a governmental entity:
(A) in a capacity other than the employee’s or officer’s governmental capacity; or
(B) that is unrelated to the conduct of the public’s business;
Utah Code § 63G-2-103(25)(b)(i).

There is no debate that Respondent recorded Ms. Ridd’s phone calls while incarcerated. There is no debate that those recordings are owned and retained by Respondent and can be reproduced. Therefore, the initial presumption is that the phone recordings are records under GRAMA; and if that presumption is correct, then it follows that they are public records “unless expressly provided by statute.” Utah Code § 63G-2-201(2). But Respondent argues the recordings are not records because they don’t relate to the conduct of the public’s business.
Utah’s GRAMA addresses the ‘public business’ element in the definition of what a record is not, as opposed to what it is. Therefore, if a recording does relate to the conduct of the people’s business, then Subsection 103(25)(b)(i) cannot apply and the recording must be deemed a record under Subsection 103(25)(a). Therefore, we look to see if Ms. Ridd’s recorded phone calls are related to the public’s business.

While it may be true that Ms. Ridd’s actual conversations were unrelated to the conduct of the people’s business, the recordings were. The recordings were kept by Respondent and shared with the prosecutor who used them to prosecute her. Prosecuting an alleged criminal is conducting the people’s business. Put differently, the substance of the calls may not have had anything to do with the public’s business, but the recordings themselves were used by the government to carry out the people’s business of prosecuting her. Thus, we find that Subsection 103(25)(b)(i) is not applicable, and that the recordings are records under Subsection 103(25)(a).

II. The Recordings Were Properly Classified

In finding that the phone call recordings are records, we now turn to whether Respondent classified them correctly. Here, Respondent argues that if the recordings are records under the GRAMA, then they are classified as private under Section 63G-2-302(2)(d) and cannot be disclosed. That Subsection provides that a record is private if it contains data on an individual to which its disclosure would constitute a “clearly unwarranted invasion of personal privacy.” Utah Code § 63G-2-302(2)(d).

We acknowledge that by virtue of Ms. Ridd being incarcerated, her right of privacy in her phone calls was diminished. See e.g., Romo v. Champion, 46 F.3d 1013, 1018 (10th Cir.1995) (expectations of privacy are limited by the exigencies of prison security)). Indeed, incarcerated individuals are notified that their phone calls are recorded and monitored, which cuts squarely against having a reasonable expectation of privacy. However, we also acknowledge that an inmate’s conversations may contain personal and private information, and notwithstanding the notice that calls are monitored, inmates don’t generally expect that their conversations will be discoverable to the general public through a GRAMA request. On this point, Respondent points us to Bent v State, 46 So.3d 1047, 1050 (Fla.4th DCA 2010). There the Court said,

Although inmates may have little expectation of privacy since they are informed the calls are subject to monitoring and recording, a lack of expectation of privacy does not affect whether the recordings are subject to disclosure under the Public Records Act. Inmates receive no notice that calls may be disclosed to the general public. The expectation that a deputy or state attorney may listen to a call is very different from an expectation that anyone and everyone could listen to the calls. Sensitive or embarrassing information, or information that would otherwise be confidential, like financial information of the inmate or the person called, could be disclosed to the public. Id.

We think this is correct. Although the Bent Court held that the inmate’s recorded conversations were not public records under Florida’s own definition of “public records,” we do agree with the Court’s privacy assessment. Ms. Ridd did know her conversations were being recorded, but that notice did not further inform her that the conversation could be heard by the public under any given GRAMA request for the recordings. Therefore, we conclude that as much as her expectation of privacy was “severely curtailed,” that expectation was not entirely lost. U.S. v. Gangi, 57 Fed.Appx. 809, 815 (10th Cit. 2003) (quoting U.S. v. Van Poyck, 77 F.3d 285, 291 (9th Cir. 1996) (“Although prisoners do not forfeit all their privacy rights at the jailhouse steps, they do have those rights severely curtailed.”). Accordingly, because Ms. Ridd’s privacy rights were not absolutely relinquished, we find that Respondent classifying the records as private in connection to GRAMA requests was correct.

III. The Interests Favoring Disclosure Outweigh Those Favoring Restriction.

We now turn to whether the records should be disclosed.

When a record is properly classified under Section 63G-2-302, we may order the requested records be disclosed if, after “weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure,” we find that “the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). In weighing the interests, the law instructs that “the balancing analysis under GRAMA must be tethered to the specific interests of the parties and the particularized application of the relevant public policies at issue.” Shroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶ 51.

Petitioner seeks the recordings so that it may use them in its documentary series on Ms. Ridd’s case. This documentary series will be produced and made available to the public at large, including markets outside of Utah. Additionally, the government has already used the requested recordings in a public proceeding against Ms. Ridd. Thus, the particularized interest of Petitioner is quite strong. Schroeder, ¶ ¶ 51, 57. Likewise, Respondent’s interest in protecting Ms. Ridd’s personal calls is also strong. As noted above, Ms. Ridd was not informed that, though her calls would be monitored, they would also be discoverable to anyone through our records laws, In addition, a documentary series will have a much broader audience than the local prosecution, which means that Ms. Ridd’s private and personal calls may be heard far beyond those in this state.

In weighing the parties’ particularized interests, we find that, especially since the recordings have already been used in Ms. Ridd’s prosecution, the interests favoring disclosure do outweigh those favoring restriction. However, given that the documentary will be released into all markets beyond our state, we do believe some limitations to the disclosure are warranted.

IV. The Records May be Redacted

Section 63G-2-308 permits a governmental entity to allow access to information the requester is entitled to inspect while also denying access to information that is exempt from disclosure. Utah Code § 63G-2-308(1)-(2). Thus, if a record contains both information that is public and information that is private, the entity may protect that private information before delivering the record.

Because we are sensitive to Ms. Ridd’s private calls being published in a mainstream documentary series, Respondent may screen the recordings before disclosing them to determine whether the calls contain any information that, if disclosed, would constitute a “clearly unwarranted invasion of personal privacy.” Utah Code § 63G-2-302(2)(d). If there is such information, Respondent may redact the recordings in accordance with Section 308 as applied to Subsection 302(2)(d).

ORDER

THEREFORE, in accordance with this decision, Petitioner’s appeal is hereby GRANTED.

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 2nd day of October 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee