State Records Committee Appeal Decision 21-22

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

TIFFANY GILMAN, Petitioner, v.

UNIFIED POLICE DEPARTMENT, Respondent.

DECISION AND ORDER

Case No. 20-22

By this appeal, Petitioner, Tiffany Gilman, seeks access to records held by Respondent, the Unified Police Department.

FACTS

On June 4, 2020, Ms. Gilman made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). She requested copies of "[a]ny records related to the missing person case of Nancy Wilcox." On June 10, 2020, Respondent's Records Supervisor denied Ms. Gilman's GRAMA request because the case was still active and unsolved. The Records Supervisor stated that the records were classified as protected non-public records pursuant to Utah Code § 63G-2-305(10)(a). Ms. Gilman appealed the denial to Harry Souvall, Respondent's Chief Legal Counsel. In a letter dated September 3, 2020, Mr. Souvall agreed that the case was unsolved and denied the appeal.

In a letter dated September 14, 2020, Ms. Wilcox appealed Respondent's GRAMA request denial to the State Records Committee ("Committee"). On March 11, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. See Gilman v. Unified Police Depart., State Records Committee Case No. 21-14 (March 22, 2021). At that hearing, the Committee ordered that the hearing be continued in order to review all the records in camera. Id. On April 8, 2021, the Committee again held an electronic hearing. After carefully considering the parties' arguments and the evidence presented, 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. Utah Code § 63G-2-305(10) generally protects criminal investigations allowing governmental entities to classify records as protected non-public records if disclosure of the records reasonably could interfere with the investigation, reasonably could be expected to disclose the identity of a source, or reasonably could be expected to disclose investigative techniques.

3. Nancy Wilcox was last seen on October 2, 1974. Convicted serial killer Ted Bundy claimed prior to his execution in 1989 that he was responsible for Ms. Wilcox’s murder and told law enforcement where her body could be located. However, Ms. Wilcox’s body has not been located and she is still considered by law enforcement to be a missing person.

4. Ms. Gilman argued that since Ms. Wilcox went missing more than 45 years ago, there is currently a greater benefit to the public for release of the information than there is for law enforcement keeping the information non-public for its criminal investigation. Ms. Gilman argued that much is known about Mr. Bundy, but little is known about the victims. Counsel for Respondent argued that although Mr. Bundy admitted to the murder of Ms. Wilcox, his confession days before his execution date may have been a stalling tactic and that law enforcement still considers Ms. Wilcox’s disappearance to be an open investigation requiring the investigation records to remain non-public.

5. After having reviewed the oral and written arguments of the parties and reviewing the requested records in camera, the Committee finds the requested documents should be classified as public subject to redaction of names not known outside of government pursuant to Utah Code § 63G-2-305(10)(d). Additionally, release of the records would not be considered a clearly unwarranted invasion of personal privacy because the story about Mr. Bundy is well known by the public and her disappearance occurred more than 45 years ago.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Tiffany Gilman, is hereby GRANTED subject to redactions pursuant to Utah Code § 63G-2-305(10)(d).

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.

PENALTY NOTICE

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 19th day of April 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee