Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2010-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SCOTT EASTMOND/KSL TV, Petitioner, vs.

CARBON COUNTY, Respondent.

DECISION AND ORDER

Case No. 10-7

By this appeal, Petitioner, Scott Eastmond, Vice President and General Counsel for KSL TV, (“Petitioner”), seeks access to the police report and a surveillance video relating to an alleged assault which took place at Carbon High School.

FACTS

On September 18, 2009, an incident occurred at Carbon High School between Robert L. Potts and Angelo Pappas. Mr. Pappas was subsequently arrested and charged with assault and threat against life or property. At the time of the incident Mr. Potts was serving as the Carbon High School, Volleyball Team Coach. On or about November 9, 2009, Shara Park, Reporter for KSL made a Government Records Access and Management Act (“GRAMA”) request to Respondent, Price City Police Department for the police reports and surveillance video associated with this case. Ms. Park’s supervisor, Maria Titze appealed the Price City Police Department’s denial of KSL’s GRAMA request to Jeremiah Humes, Deputy Carbon County Attorney. Mr. Humes was unaware of the prior request to Price City Police and therefore treated the appeal as an initial request. Citing Utah Code Ann. § 63G-2-305(9)(c), Mr. Humes denied KSL’s appeal/request, however he did provide Respondent with the Information/charging document and date the accused was to make his first court appearance.

Scott E. Eastmond, General Counsel for KSL appealed Mr. Humes denial to the Carbon County Commission which heard the appeal on January 6, 2010. The County Commission reviewed the appeal and held a closed session to review the requested records. The Carbon County Commission determined that the appeal should be denied as it pertained to the video and police report, but ordered the County Attorney’s Office to provide additional information in the form of a press release. This additional information was to include, a summary of the facts of the case, names of the individuals involved, the date and location of the incident. The County Attorney’s office/Mr. Humes complied with the Carbon County Commissions order and provided KSL TV with a press release containing the above listed information.

Petitioner now appeals to the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, and having convened on March 18, 2010, a hearing to hear oral argument and testimony, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303, -304 and -305.

2. Records created or maintained for civil, criminal, or administrative purposes or audit purposes, or for discipline, licensing certification, or registration purposes are protected records if release of the records could reasonably be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code Ann. § 63G-2-305(9)(a).

3. During the hearing, counsel for Respondent stated that the requested records were used to investigate whether criminal charges should be filed against Mr. Pappas and that the police report and video were being maintained for enforcement purposes pursuant to Subsection 305.

4. Utah Code Ann. § 63G-2-305(9)(c) states that records can be protected if disclosure of the records would create a danger of depriving a person of a right to a fair trial or impartial hearing.

5. Petitioner argued that the release of the police report and video would not deprive Mr. Pappas of his right to a fair trial, noting that there are numerous instances where similar records have been released prior to the completion of a criminal trial. Petitioner argued that KSL TV has significant influence in this small community and coupled with pervasive local interest, it may make empanelling a jury in a criminal prosecution in this case extremely difficult if not impossible, thereby depriving Mr. Pappas of his right to a fair trial.

6. Petitioner also argued that based upon the fact that Mr. Potts was employed by the School District as the Volleyball Coach at the time of the incident, release of the requested records should be within the public’s right to access to information concerning the conduct of the public’s business. See, Utah Code Ann. § 63G-2-102(1).

7. Petitioner further argued that the records contained or should have contained initial contact reports. Respondent argued that due to the unique circumstances of this case, there were no initial contact reports generated and that only a subsequent investigative report existed.

8. An initial contact report means an initial written or recorded report, however titled, prepared by peace officers engaged in public patrol or response duties describing official actions initially taken in response to either a public complaint about or the discovery of an apparent violation of law. Utah Code Ann. § 63G-2-103(14)(a). Initial contact reports are normally public. Utah Code Ann. § 63G-2-301(3)(g).

9. After hearing arguments and reviewing the materials submitted by the parties, the Committee finds Respondent’s claim that the records should be protected pursuant to Utah Code Ann. § 63G-2-305(9) persuasive and that the records other than the first page of the police report were properly classified as “private” by the governmental entity. Based on an in camera, review of the police report, the Committee finds the first page of the police report is consistent with an initial contact report and is therefore improperly classified. Accordingly, the first page of the police report should be released to the Petitioner after any private information contained therein is redacted.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Scott Eastmond/KSL TV, is upheld as to the first page of the police report, and denied as to the remainder of Petitioner’s request for the surveillance video and the remaining police report.

Carbon County is hereby ordered to release the first page of the police report after first having redacted any private information contained therein.

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 thirty (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 Utah Code Ann. § 63G-2-404. 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.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the governmental entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental entity 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.

Dated this 29th day of March 2010.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee