State Records Committee Appeal Decision 2019-16
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JOSHUA ALTHOFF, Petitioner, v.
MOAB CITY, Respondent.
DECISION AND ORDER
Case No. 19-16
By this appeal, Petitioner, Joshua Altoff, seeks access to records allegedly held by Respondent, Moab City, Utah.
Mr. Altoff made a request for records to Moab City (“Moab”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Altoff requested an Internal Affairs Investigation Report (“Report”) “in its entirety, including polygraph reports and recordings.” The Report involved Mr. Altoff during his time he served as a police officer for Moab in 2016. Mr. Altoff’s records request was initially denied based upon the records being classified as protected records pursuant to Utah Code § 63G-2-305(10).
On February 20, 2019, Mr. Altoff appealed the denial to the chief administrative officer for Moab. Mr. Altoff stated that he should have access to the Report because he was the subject of the record. Mr. Altoff also stated that he should have access to the polygraph records because he was there and “I know what happened.” In a letter dated March 19, 2019, David Everitt, City Manager for Moab, stated that since Mr. Altoff was the subject of the private polygraph examination, a copy of the written polygraph examination would be provided to him with redactions. However, Mr. Altoff would not be provided with the audio/video recording of the polygraph because the recording was not “practically redactable.” Later, Moab claimed that after a diligent search, it could not find a copy of the polygraph audio/video.
On April 4, 2019, Mr. Altoff filed an appeal with the Committee. After reviewing the written arguments of the parties and hearing oral argument and testimony at a hearing held on June 13, 2019, the Committee issues the following Decision and Order.
STATEMENT OF REASONS FOR DECISION
1. Generally 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, subject to Utah Code § 63G-2-203 & -204. Utah Code § 63G-2-201(1)(a). A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). Under GRAMA, records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.
2. Moab claimed that it could not produce the polygraph audio/video because it did not possess the record. During the hearing, it was determined that a contractual relationship existed between Moab, the Utah County Sherriff’s Office (the governmental entity who prepared the Report), and Intermountain Polygraph (who administered the polygraph test). Although Moab does not currently possess the polygraph audio/video, because of this contractual relationship between Moab, the Utah County Sherriff’s Office, and Intermountain Polygraph, the Committee was convinced that Moab should be able to obtain the polygraph audio/video from either the Utah County Sherriff’s Office or Intermountain Polygraph because the polygraph audio/video should be considered Moab’s record.
3. Moab also argued that if the polygraph audio/video could be obtained, it would need to be redacted because it contains information not generally known to the public. See, Utah Code § 63G-2-305(10)(d). Mr. Altoff contended that since he was at the polygraph test when it was administered, he already knows any information contained in the polygraph audio/video. However, because the information within the polygraph audio/video may include non-public information involving individuals other than Mr. Altoff, that non-public information should be redacted prior to the file being given to Mr. Altoff even though Mr. Altoff was present at the time of the records consistent with Utah Code §§ 63G-2-305(10), -302(1)(b) and -302(2)(d). If the record cannot be obtained from the Utah County Sheriff’s Office and/or Intermountain Polygraph because it no longer exists, Moab shall provide that documentation to Mr. Altoff.
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Joshua Altoff, is GRANTED in part and DENIED in part.
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 24th day of June 2019.
BY THE STATE RECORDS COMMITTEE
TOM HARALDSEN, Chair
State Records Committee
Page Last Updated June 24, 2019 .