State Records Committee Appeal Decision 2018-24
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
ETHAN DODGE on behalf of TRUTH AND TRANSPARENCY FOUNDATION, Petitioner, v.
BRIGHAM YOUNG UNIVERSITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER
Case No. 18-24
By this appeal, Petitioner, Ethan Dodge on behalf of Truth and Transparency Foundation, seeks access to records allegedly held by Respondent, the Brigham Young University Police Department.
In April 2018, Mr. Dodge made a records request to the Brigham Young University Police Department ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested, “all files, videos, audio recordings, or any other kind of documentation related to” allegations against Joseph L. Bishop. In an e-mail dated April 10, 2018 in response to Mr. Dodge’s records request, Respondent provided a redacted copy of an incident report.
Mr. Dodge appealed the response and clarified that he already had several versions of the incident report including one that stated that an interview of Mr. Bishop was conducted on December 5, 2017 and that the recording had been attached to the report. Mr. Dodge stated that he believed the redactions were improper and that he had a right to a copy of the recording.
In an e-mail dated April 13, 2018, Chief Larry Stott replied to Mr. Dodge’s appeal stating that “Brigham Young University and its University Police are not subject to GRAMA.” Chief Stott also stated that “as a matter of internal practice” it released records classified as public records under GRAMA, but “the requested recording [would be] a private record under Utah Code 63G-2-302” because “disclosure of the recording would constitute a clearly unwarranted invasion of personal privacy of individuals involved in the case.”
Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on July 12, 2018, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. GRAMA states that every person generally 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). GRAMA defines a “public record” means a “record” that is not private, controlled, or protected and that is not exempt from disclosure as provided in Utah Code § 63G-2-201(3)(b). Utah Code § 63G-2-103(21). The “record” needs to be “prepared, owned, received, or retained by a governmental entity or political subdivision” of the State of Utah. Utah Code § 63G-2-103(22)(a)(i). One of GRAMA’s definitions of a “governmental entity” includes “every office, agency, board, bureau, committee, department, advisory board, or commission” of an entity listed in Utah Code § 63G-2-103(11)(a) that is “funded or established by the government to carry out the public’s business.” Utah Code § 63G-2-103(11)(b)(i).
2. Respondent argues that it is not a “governmental entity subject to GRAMA” and therefore, would not be participating in the Committee’s hearing or submitting written statements or records for review by the Committee. Since the issue of whether Respondent is a governmental entity is currently being reviewed by a Utah District Court in Salt Lake Tribune v. Utah State Records Comm., 3rd District Case No. 160904365, the Committee defers addressing this issue at this time and instead, addresses solely the issue of the classification of the requested record.
3. In the denial e-mail dated April 13, 2018, Chief Stott stated that if the record was classified under GRAMA, the requested recording would be considered a private record pursuant to Utah Code § 63G-2-302 “because disclosure of the recording would constitute a clearly unwarranted invasion of personal privacy of individuals involved in the case.” Petitioner argued that because of the public interest in disclosure of the information from the investigation, the records should be released.
4. After having reviewed all written materials submitted to the Committee and arguments made by Petitioner during the Committee’s hearing, the Committee finds that the requested records were improperly classified as private records by Respondent. Release of the recording would not be a “clearly unwarranted invasion of personal privacy” because information within the recording of the interview has already been released to the public. Accordingly, the Committee finds that the requested records are public records and should be disclosed to Petitioner subject to the District Court’s decision in Salt Lake Tribune v. Utah State Records Comm., 3rd District Case No. 160904365 concerning whether Respondent is a governmental entity subject to GRAMA.
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ethan Dodge on behalf of Truth and Transparency Foundation is GRANTED.
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 a parties’ rights on appeal, a party may wish to seek advice from an attorney.
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 23rd day of July 2018
BY THE STATE RECORDS COMMITTEE
HOLLY RICHARDSON, Chair Pro Tem
State Records Committee
Page Last Updated July 25, 2018 .