State Records Committee Appeal Decision 2023-57

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LUIS SANCHEZ, Petitioner, vs

UTAH DEPARTMENT OF PUBLIC SAFETY (DPS), Respondent,

DECISION AND ORDER

Case No. 23-57

By this appeal Luis Sanchez (“Petitioner”), requests records allegedly held by, Utah Department of Public Safety (“Respondent”).

FACTS

On May 14, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested “access to all records related to Jared Brooks Cardon’s traffic accident of June 21, 2021.” Jared Cardon was a Unified Police Department officer who crashed his police vehicle on I-15 in Salt Lake County. As a result of the crash, Mr. Cardon was charged with a third-degree felony, a class A misdemeanor, and two class B misdemeanors. His criminal trial is currently pending. The Petitioner stated that “this request aims to uncover whether there was a proper and unbiased investigation into the accident.” Specifically, Petitioner requested the following records be provided:

1. Any reports, documents, or other materials related to the accident and subsequent investigation, including Garrity statements and witness statements, either created, controlled, or accessed by this agency.

2. Any video, audio, recorded phone calls and photographic evidence created, controlled, access or collected regarding the incident and investigation.

3. Any related emails, memoranda, or other written communications related to the investigation and accident, either created, controlled, or accessed by this agency.

4. Any findings, conclusions, prosecution, disciplinary action, or recommendations made by the department regarding the investigation and accident, either created, controlled, or accessed by this agency.

5. Evidence audit trail of all evidence.

On May 30, 2023, the Respondent denied the request citing an “ongoing investigation or criminal prosecution.” The Respondent pointed to Utah Code § 41-6a-404, and also informed Petitioner that the “prosecutor in this case [has] requested that we do not release these records until the case has been adjudicated.” Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”). The CAO upheld the denial on the same grounds, as well as the fact that the records are protected under Utah Code § 63G-2-305(10).
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On November 16, 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 whether the requested records are properly classified, and, if so, whether the records may still be released.

STATEMENT OF REASONS FOR DECISION

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 protected under Section 63G-2-305 is not public and its access may be restricted. Utah Code § 63G-2-201(3). If a record is classified as protected under Subsection 63G-2-305(10), then the burden is on the requester to show “by a preponderance of evidence” that the interests favoring access to the record are at least equal to the interests favoring restriction. Utah Code § 63G-2-406(1).

Subsection 63G-2-305(10) classifies the following records as protected: Records created or maintained for civil, criminal, or administrative purposes . . . if release of the records would create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(c). In the appeal before us, Petitioner seeks records concerning a currently pending criminal trial. He argues that the public interest favors disclosure in providing transparency into Mr. Cardon’s investigation. True as that may be, we find that the evidence favoring access is not a preponderance equal to or greater than the public policy behind Subsection 305(10)(c).

When evidence and investigative reports are presented in a trial, the defendant has procedural safeguards to check the veracity of the evidence. However, when such evidence is leaked or otherwise published, those courtroom mechanisms are non-existent and the public reads or obtains the information through the prism of how the author publishes it. As Petitioner intends to publish his findings from the requested records, it is a reasonably foreseeable possibility that the revealed information in the records could taint the jury and/or witnesses. This, of course, would jeopardize Mr. Cardon’s right to a fair and impartial trial. Accordingly, we find that the records are properly classified under Subsection 63G-2-305(10)(c) and Petitioner has not met the burden of proof required to compel disclosure.

ORDER

THEREFORE, in accordance with our 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 28 day of November 2023

BY THE STATE RECORDS COMMITTEE

Kenneth R. Williams
Chair, State Records Committee