State Records Committee Appeal Decision 2023-52

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LUIS SANCHEZ, Petitioner, vs

SALT LAKE CITY POLICE DEPARTMENT, Respondent

DECISION AND ORDER

Case No. 23-52

By this appeal Luis Sanchez (“Petitioner”), requests a fee waiver for requested records held by Salt Lake City Police Department (“Respondent”).

FACTS

On January 4, 2023, Petitioner filed a records request and fee waiver with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”).[1] Petitioner requested the fee waiver because he “works with MyDefenseGuide.org and other independent media organizations where the findings of these investigations will be released to the public.” According to Petitioner, “[t]his meets the requirement of [Utah Code} 63G-2-203(4), releasing the record primarily benefits the public rather than a person, and thus fees should be waived.”

As to the records, Petitioner requested the following:

1. All audio recordings, video recordings (including handheld cameras, body-worn cameras and any other video recordings), police reports, witness statements, and any and every other document and file created regarding the July 9, 2020, protest of Bernardo Palacios’ murder;

2. Video audit trail of all video evidence;

3. Names, ID numbers, and photographs of every other officer that responded or that was involved in the July 9, 2020, protest; and

4. I need all video footage to be identified with the name and ID number of the officer who recorded it.

After an initial email response on January 20th acknowledging receipt of the request, Respondent provided a detailed response to Petitioner on February 16, 2023. Paraphrasing the response, Respondent provided the following:

1. As to the request for names, ID numbers, and photographs of officers, the names and ID numbers can be obtained in the police report. As to the photographs of the officers, the request is denied because SLCPD doesn’t have a record containing photographs of all officers involved in the July 9, 2020 protest. In the event photographs do exist, SLCPD classified them as protected under Utah Code 63G-2-305(11), arguing that releasing the photographs would jeopardize the life and safety of an individual.

2. As to the remaining requests, filling the requests would take additional time and resources and would have to be produced in a rolling production. Because the remaining records are voluminous and the time to it will take staff to gather, review, and redact the records (if necessary) is excessive, the fee waiver request is denied. SLCPD is requiring a pre-payment $1,500.00 to fill the request.

On March 2, 2023, Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”). Specifically, Petitioner took issue with the amount of the fee, the decision to deny a fee waiver, and the protective classification of any photographs of police officers. On March 17, 2023, the CAO responded, affirming the denial. The CAO explained that even though the GRAMA “encourages” a governmental entity to waive a fee when the request would benefit the public, the entity is not required to do so. Because of the effort involved to fill the voluminous request, the CAO determined that denying the fee waiver was not unreasonable. Additionally, the CAO upheld the protective classification of any photographs of officers that were taken during the protest. The CAO stated that officers had received death threats due to the national unrest and the officers’ response to local protests. Additionally, the CAO found that Petitioner’s website has a ”Wall of Shame” and Respondent has a reasonable belief that at least some of the photographs might be posted on that portion of the site which would “substantially raise the likelihood that they would be subject to further threats from individuals upset about the protests and the City’s response.”

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 are asked to decide (1) whether the records classified as protected was correct; (2) if so, whether those records may still be released; and (3) whether Respondent’s decision to deny the fee waiver request for all other records was reasonable.

STATEMENT OF REASONS FOR DECISION

I. The Records are Properly Classified

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). However, a record that is classified as “protected” is not a public record. Utah Code § 63G-2-201(3)(a).

Respondent classified the requested photos as protected under Utah Code § 63G-2-305(11). That Subsection classifies a record as protected if disclosing the record would jeopardize the life or safety of an individual.

We find that the July 9, 2020, protest was a dynamic and chaotic event, one that certainly doesn’t occur on a routine basis. The protest was about the death of Bernardo Palacios who was killed by police on May 23, 2020. Protestors believed the death was a result of unnecessary excessive force and took to the streets after the Salt Lake County District Attorney’s Office determined the use of force justified. We find that, in relation to this specific protest and because of its chaotic nature, releasing the requested records could reasonably imperil the officers who were there to regulate the protest; for it was they who were in charge of restricting and controlling a crowd whose anger was directed directly at them. Therefore, we further find that Respondent classified the records correctly under Subsection 305(11).

II. The Evidence Does Not Support Releasing the Protected Records

If a record is properly classified under Subsection 305(11), we may order the records be disclosed only if the requestor has established, “by clear and convincing evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction.” Utah Code § 63G-2-406(2).

Here, the primary thrust of Petitioner’s evidence is that the public benefits from transparency and holding the police accountable. That is, by releasing the requested photographs, it will help weed out the worst officers from the police department and can save the public from having to pay thousands in lawsuits. Additionally, Petitioner argues that releasing the photos may also potentially protect the public from being victimized by the same bad acting officers.

These arguments are not enough to constitute clear and convincing evidence. When there is a reasonable risk that exposing the identities of officers to the public will jeopardize their personal safety, the evidence must point to reasons that can justify such exposure. Regardless of whether certain officers did not conduct themselves appropriately during a chaotic protest or not, we are not prepared to risk their safety for the reasons Petitioner argues. We find that Petitioner has not met his burden to compel disclosure of the photos under Section 63G-2-406(2).

III. The Fee Waiver Denial was Reasonable

A governmental entity may charge a reasonable fee to cover the entity’s actual costs of providing a record. Utah Code § 63G-2-203(1)(a). When the entity must compile a record in a form other than that normally maintained to fill the request, the compensable actual costs may include the cost of staff time for compiling, formatting, tailoring, packaging, search, retrieval, and other administrative costs. Utah Code § 63G-2-203(2)(a)(i)-(ii). The hourly charge for staff time, however, may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the request. Utah Code § 63G-2-203(2)(b). But if the releasing the record primarily benefits the public rather than the requester, the governmental entity may fulfill a record request without charge and is encouraged to do so. Utah Code § 63G-2-203(4)(a).

Here, Respondent assessed a fee of $1,500.00 to fill the request due to the voluminous recordings it would have to comb through, review, compile, and possibly redact. Respondent estimates that these efforts would take roughly 600-700 hours. For these efforts, GRAMA allows a fee to be charged. However, GRAMA encourages a fee waiver when the request benefits the public. But even assuming for the sake of argument that Petitioner’s request will benefit the public, the statute encourages a fee waiver; it doesn’t require it. And it is settled law that the law allows a fee for voluminous and laborious requests even if the request benefits the public.

The Utah Supreme Court affirmed the trial court’s decision to uphold the fee waiver denial in a case where the records request would primarily benefit the public. The Court ruled:

Despite finding that JRRN’s purpose was to primarily benefit the public, the court concluded that the City’s decision to deny the requested fee waiver was reasonable given the voluminous nature of the request and the effort necessary to compile the requested documents. . . . The district court did not also need to weigh competing interests pertinent to disclosure and nondisclosure. While fees do affect the public’s access to documents, the legislature has identified different considerations specific to the fee waiver context. The district court correctly identified and applied them here. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶83-84.

The reasons the Court cited in that case are the same reasons Respondent had for denying Petitioner’s fee waiver request. Just as the Court found them permissible there, so do we find them permissible here. Accordingly, we find Respondent’s decision to deny the fee waiver was reasonable.

ORDER

THEREFORE, in accordance with this decision, 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

1. There is some indication in the record that Petitioner filed previous GRAMA requests for the same records stemming back to July 9, 2022. The record implies that there may have been three total requests for these records, including the January 20, 2023, request This appeal stems from that request.