State Records Committee Appeal Decision 2023-48

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

TY WINTERTON, Petitioner, vs

DUCHESNE COUNTY, Respondent,

DECISION AND ORDER

Case No. 23-48

By this appeal Ty Winterton (“Petitioner”), requests a fee waiver for requested records held by Duchesne County (“Respondent”).

FACTS

On March 30, 2023, Petitioner and some friends had rented the Duchesne County Centennial Center’s arena to ride horses. After the riding and his friends had left, Petitioner was preparing his horse to leave when he was allegedly accosted by two individuals. After Petitioner managed to leave the premises and the individuals who were harassing him, he contacted the police and filed a report about the incident.

On March 31, 2023, and April 3, 2023, Petitioner, with help from his mother-in-law who had recently filed a number of GRAMA requests with Respondent on her own, filed records requests with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Between the two requests, Petitioner requested the following records:

1. “camera footage from inside the Centennial Center arena on March 30, 2023, from 3pm—5:00pm
2. outside camera footage if there is a camera showing the big door area that enters the warm up arena from 3:00pm – 5:00pm on March 30, 2023
3. camera footage from cameras in the warm up arena from 3:00pm to 4:00pm on March 30, 2023
4. video camera footage from March 30, 2023, of the employee conference room camera off of employee offices from 7am-5pm
5. video camera footage from March 30, 2023, of east inside building doors entering the main arena from 3:30pm through 5:30pm.”

On May 4, 2023, Respondent delivered notice that it had denied Petitioner’s record request on the grounds that the records were protected under Subsection 305(12) of GRAMA, which protects records that the “disclosure of which would jeopardize the security of government property . . . from damage, theft, or other appropriation or use contrary to law or public policy.” Utah Code § 63G-2-305(12). Upon receiving this notice, Petitioner’s mother-in-law spoke with Respondent’s records officer to express concern about preserving the footage during the appeals process. The records officer assured Petitioner’s mother-in-law that the requested video footage would be preserved for the appeals period in case Petitioner did decide to appeal the decision.

On April 19, 2023, Petitioner appealed the decision to Respondent’s chief administrative officer (“CAO”). Petitioner explained in his appeal that the request was made in hopes of finding that the altercation he was involved in was captured by any of the security cameras near the area the incident took place. However, the CAO denied his appeal on May 4, 2023. The CAO affirmed Respondent’s claim that the records were classified as protected under Section 305(12).

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. At some point during the pendency of the appeal, Respondent spoke with Petitioner about the GRAMA request. Respondent informed Petitioner that the camera footage doesn’t exist because the cameras were not operational for the time period Petitioner requested.

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 the records exist and are properly classified under Section 63G-2-305(12); and (2) if the records are properly classified, whether they may still be disclosed.

STATEMENT OF REASONS FOR DECISION

Respondent makes several arguments about the state of the requested footage. First, Respondent testified that all security footage is securely held by a third-party and that only certain government employees with proper legal authorization from the County Attorney can review the footage. Therefore, according to Respondent, since the records are not actually owned, received, or maintained by Respondent, they cannot be records for purposes of GRAMA. Respondent further argues that even if the requested footage is a record subject to GRAMA, the records don’t exist because the footage was recorded over with new footage during the pendency of the appeal. Finally, Respondent argues that if it did have responsive records, they would be protected under Section 305(12) of GRAMA. We take these points one at a time.

I. The Requested Footage is a Record Under GRAMA
Under 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). GRAMA defines a “record” as “a . . . film, . . . recording, . . . electronic data, 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. . . .” Utah Code § 63G-2-103(25)(a)(i)-(ii).

We find that by virtue of Respondent contracting with the third-party to record and retain the surveillance footage, that footage is owned by Respondent. Respondent’s IT department may access the recorded footage at any time (albeit with authorization from the County Attorney per its policy). From the ownership of the footage, this satisfies GRAMA’s definition of “record.” Therefore, contrary to Respondent’s assertion, we conclude that the requested footage is a record subject to GRAMA.

II. The Records May Be Classified Correctly

A governmental entity’s record is considered a public record “unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). A record properly classified as “protected” under Section 63G-2-305, is not a public record. Utah Code § 63G-2-201(3)(a). Under GRAMA, a record is “protected” if the information it contains would jeopardize the security of governmental property from damage, theft, or other appropriation or use contrary to law or public policy. Utah Code § 63G-2-305(12).

From the information we’ve been given, we can conclude that the records are likely classified correctly. However, our analysis on that point is cut short by the fact that the requested footage has been recorded over and no longer exists.

III. The Records No Longer Exist

In Respondent’s Statement of Facts submitted to the Committee, it explained why the records don’t exist. Respondent represents that it has a four-week retention period for video footage. When the records officer sent a “preservation of records letter” to Respondent’s IT department, the IT department felt that the request was inadequate because the letter cited no legal authorization from the County Attorney granting permission to access and preserve the requested footage. As a result, the IT department did not access the video footage to preserve it within the four-week timeframe and the footage was eventually recorded over with new footage.

Given that the footage was a record owned by Respondent, it had a duty to preserve that record during the appeal process. The duty to preserve records is not one that can be delegated to the third-party host who retains the records. From the facts on the record, we see that Respondent’s failure to preserve the requested footage was an unfortunate misstep of government administration and raises concerning questions about its record retention practices as required by law. Unfortunately, for Petitioner, this legislature has not given this Committee jurisdiction to penalize governmental entities for such errors. See Utah Code §§ 63G-2-403.

IV. Conclusion

In sum, we find that the requested footage was a record under GRAMA. According to the facts before us, it was likely classified correctly. Respondent had a duty to preserve the requested records during the pendency of the appeal but failed to do so. Respondent alone has the duty to preserve records for GRAMA requests and cannot delegate that responsibility. But because this Committee has no authority and this is not the venue to penalize Respondent, we are left with no choice but to deny the appeal.

ORDER

THEREFORE, in accordance with the decision above, Petitioner’s appeal is hereby 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 2nd day of October 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee