Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 94-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

UNITED TELEVISION, INC., a Delaware Corporation, d.b.a. KTVX CHANNEL 4, Appellant, v.

UTAH BOARD OF PARDONS AND PAROLE, Appellee

DECISION AND ORDER, Case No. 94-13

By this appeal, United Television, Inc. seeks an order compelling the Utah Board of Pardons to release to it a copy of a video tape regarding an incident at Brigham Young University regarding an assault on Howard W. Hunter, an official of the Church of Jesus Christ of Latter-day Saints. The initial hearing on this matter was held on July 27, 1994 in which the parties appeared and presented argument before the Records Committee. Based on the issues that were raised in that hearing, the Records Committee requested the parties to research and submit memorandum to the Records Committee on the topics discussed. The Records Committee continued the hearing until the memorandum were submitted. The parties did submit the requested memorandum and the hearing was reconvened on October 5, 1994. The State Records Committee, having reviewed the materials submitted by the parties, having heard testimony from witnesses, having heard oral argument and having solicited public comment at the time of the hearing, and being fully advised in the premises, now issues the following Decision and Order.

BACKGROUND

1. The video tape sought by United Television, Inc., was supplied to the Utah Board of Pardons by the Utah County Attorney's Office in response to a request of the Board of Pardons to supply information on Cody Judy, an inmate at the Utah State Prison who had pled guilty and was incarcerated for an assault on Howard W. Hunter at a Church Educational System young adult fireside for the Church of Jesus Christ of Latter-day Saints.

2. The portion of the video sought by United Television, Inc. had been blacked out of the live broadcast and had never been published by the Church Educational System. The Church Educational system claimed copyright privilege of the material and had chosen not to broadcast or publish the portion of the fireside blacked out, but contained on a master tape made of the proceedings.

3. The Utah County Attorney's office obtained a copy of portions of the master tape showing the assault for purposes of prosecution. Without permission from the LDS church or other copyright owner of the video tape, it gave a copy of the video tape to the Board of Pardons. The Video was not shown publicly at the Board of Pardons.

4. United Television, Inc., sought release of the video from the Board of Pardons. The Board denied the release of the video on the basis that it was not a record under Utah Code Ann. 63--2- 103(18)(b)(iii).

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (GRAMA) specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2).

2. Materials kept or maintained by a governmental entity or employee that is not a record under GRAMA is not subject to release and disclosure under the Act and the Records Committee has no jurisdiction over such records. Utah Code Ann. 63-2-103(18)(b).

3. Copyrighted material maintained by the State or any of its agencies is not automatically excluded as being a record under GRAMA. The provision excluding copyrighted material includes provisions that it is not a record if access to the material held by the public entity is limited by copyright.

4. The Church Educational System of the Church of Jesus Christ of Latter-day Saints intended the material contained on the videotape to be copyrighted from its inception and gave no permission for the material contained in the blacked out portion of the video tape but contained on the master to be released to the Board of Pardons. The Church Educational System also never published the material which is subject to the request of United Television, Inc.

5. If the video does not fall under the exclusion of Utah Code Ann. 63-2-103 (18)(b)(iii), it is a record and subject to the jurisdiction of the Records Committee to order released if the Records Committee finds it is not protected by other factors.

6. Testimony and evidence raised the issue of the video being subject to a secrecy order entered by a Judge of the Fourth District Judicial Court in Utah County. The Records Committee need not reach this issue because it resolves the issue on other grounds.

7. The video segment sought is not a record under Utah Code Ann. 63-2-103(18)(b)(iii) because the owner of the video intended the video to be copyrighted and never published it.

ORDER

THEREFORE, IT IS HEREBY ORDERED THAT the decision of the Board of Pardons denying release of the video tape sought by the Appellant is affirmed and the appeal is denied.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the district court. The petition for review must be filed no later than 30 days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 and 63-2-502(7). The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

Entered this 11th day of October, 1994.

BY THE RECORDS COMMITTEE,
MAX J. EVANS,
Chairman, State Records Committee.