State Records Committee Appeal Decision 2020-48
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
KSL 5 NEWS, Petitioner, v.
LAYTON CITY POLICE DEPARTMENT. Respondent.
DECISION AND ORDER
Case No. 20-48
By this appeal, Petitioner, KSL 5 News, seeks access to records allegedly held by Respondent, Layton City Police Department.
On May 26, 2020, Mr. Pineiro on behalf of Petitioner, KSL 5 News, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Pineiro requested a copy of the 911 phone call from Ethan Hunsaker made on May 26, 2020. The record is related to the death of Ashlyn Black. Respondent denied the request the same day indicating that the records were part of an open investigation and were protected pursuant to Utah Code § 63G-2-305(10)(a) and –305(10)(c). Eric Morgan on behalf of Petitioner, filed an appeal arguing that the public’s interest in the release of the records outweighed the protection provisions.
Petitioner’s appeal was denied and thereafter, an appeal was filed by Mr. Morgan on behalf of Petitioner on June 26, 2020 with the State Records Committee (“Committee”). Davis County requested and was granted permission to intervene in the case pursuant to Utah Code § 63G-2-403(6). On September 24, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties and reviewing the requested 911 call in camera, the Committee 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 § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.
2. Records created or maintained for criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement purposes; or (2) Would create a danger of depriving a person of a right to a fair trial or impartial hearing. Utah Code § 63G-2-305(10)(a) & (c).
3. After listening to the complete 911 recording in camera, the Committee is convinced that release of the recording reasonably could be expected to interfere with the investigation of the death of Ashlyn Black and create a danger of depriving a person prosecuted for her death of a fair trial. Accordingly, the Committee finds that the 911 recording should not be released pursuant to Utah Code § 63G-2-305(10)(a) & (c).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, KSL 5 News 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 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 30 day of September 2020
BY THE STATE RECORDS COMMITTEE
Chair, State Records Committee
Page Last Updated October 7, 2020 .