State Records Committee Appeal Decision 2017-03
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
EARL Al KALASHNIKOV, Petitioner, v.
SALT LAKE CITY CORPORATION. Respondent.
DECISION AND ORDER
Case No. 17-03
By this appeal, Petitioner, Earl Al Kalashnikov, seeks access to records held by Respondent, the Salt Lake City Corporation (“City”).
On February 27, 2016, a shooting incident occurred involving Abdi Mohamed and police officers with the Salt Lake City Police Department (“Department”). On March 11, 2016, Mr. Kalashnikov filed a records request pursuant to the Government Records Access and Management Act (“GRAMA”) with the Department for police records related to the shooting incident.
In a letter dated August 23, 2016, the Department denied Mr. Kalashnikov’s records request. Mr. Kalashnikov filed an appeal and in a letter dated October 5, 2016, the Department’s GRAMA Coordinator denied the appeal. An appeal to the Chief Administrative Officer for the City, similarly denied Mr. Kalashnikov’s appeal in a letter dated November 14, 2016, finding that access to the body camera recordings is protected pursuant to Utah Code § 63G-2-305(10)(b) & (c).
Mr. Kalashnikov filed an appeal with the Utah State Records Committee (“Committee”), and on January12, 2017, a hearing was before the Committee. However, prior to the hearing, the same records that were requested by Mr. Kalashnikov were found to be public records in Am. Civil Liberties Union v. Salt Lake City Police Dept., State Records Committee Case No. 17-02 (January 24, 2017). Taking into account the similarity of the two records requests, involving the same governmental entity, and having considered the written arguments of the parties, the Committee 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 § 63G-2-201(2). Records that are private, controlled, or protected under Utah Code §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).
2. Records created or maintained for criminal enforcement purposes are protected records if properly classified by a governmental entity if release of the record: (1) Reasonably could be expected to interfere with enforcement proceedings; 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)(b) & (c).
3. The Committee, after having reviewed the two body camera videos in camera, determined that records should be classified as public records for the reasons provided in Am. Civil Liberties Union v. Salt Lake City Police Dept., State Records Committee Case No. 17-02 (January 24, 2017).
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mr. Kalashnikov, 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 its 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities. Utah Code § 63G-2-403(15)(d)(i). 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 January 2017.
BY THE STATE RECORDS COMMITTEE
DAVID FLEMING, Chairperson
State Records Committee
Page Last Updated January 26, 2017 .