Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Hearing 2010-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CHRIS VANOCUR/ABC 4 NEWS, Petitioner, vs.

UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.

DECISION AND ORDER

Case No. 10-5

By this appeal, Petitioner, Chris Vanocur, Senior Reporter with ABC 4 News, (“Petitioner”), seeks access to the arrest records and dashboard camera video relating to the arrest of Sheldon Killpack on January 15, 2010.

FACTS

On January 15, 2010, Sheldon Killpack was arrested and charged for driving while intoxicated. At the time of his arrest, Mr. Killpack was serving as a Utah State Senator. On the same day as his arrest, Mary Rice, on behalf of ABC 4 News, made a Government Records Access and Management Act (“GRAMA”) request to Respondent, Utah Department of Public Safety (“Respondent”) for “[a]rrest records and dashboard camera video regarding the arrest of Utah Senator Sheldon Killpack on January 15, 2010.” The reason for the request was “[p]ublic information for media broadcast purposes.” In a letter dated January 19, 2010, Sargent Jeff Nigbur, Public Information Officer for Respondent, denied the records request finding that “[i]ncident reports and all accompanying data, such as dashcam videos, have been classified by the [Utah Highway Patrol] as protected records pursuant to Utah Code Ann. § 63G-2-305(9).”

In a letter dated January 21, 2010, Petitioner appealed Respondent’s denial of the records request. Mr. Vanocur wrote that “ABC 4 strongly believes both the incident report and the dashcam video are very much in the public’s interest as provided for under GRAMA.” On January 28, 2010, D. Lance Davenport, Commissioner of the Utah Department of Public Safety denied Petitioner’s appeal. Mr. Davenport wrote that the requested records were “created and is maintained by the Utah Highway Patrol for criminal enforcement purposes.” Mr. Davenport further wrote that “the release of the records reasonably could be expected to interfere with enforcement proceedings or would create a danger of depriving a person of a right to a fair trial or impartial hearing.”

Petitioner now appeals to the Utah State Record Committee (“Committee”). Pursuant to Utah Code Ann. § 63G-2-403(8) and Utah Admin. Code R. 35-1-2(7), the Salt Lake Tribune and the Deseret News joined Petitioner and argued before the Committee as interested third parties. The Committee having reviewed the arguments submitted by the parties, and having convened on February 11, 2010, a hearing to hear oral argument and testimony, now issues the following Decision and Order.

STATEMENT OF REASONSE FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63G-2-302, -303, -304 and –305.

2. The requested records were created or maintained for civil, criminal, or administrative purposes or audit purposes, or for discipline, licensing certification, or registration purposes are protected records if release of the records could reasonably be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code Ann. § 63G-2-305(9)(a).

3. During the hearing, counsel for Respondent stated that the requested records were used to investigate whether criminal charges should be filed against Mr. Killpack. However, counsel for Respondent also stated that the investigation had been completed and criminal charges have been filed against Mr. Killpack. Counsel did not know if the requested records would be used in any future investigations.

4. Utah Code Ann. § 63G-2-305(9)(c) states that records can be protected if disclosure of the records would create a danger of depriving a person of a right to a fair trial or impartial hearing.

5. Petitioner argued that the release of the arrest records and dashboard camera video would not deprive Mr. Killpack of his right to a fair trial, noting that there are numerous instances where similar records have been released prior to the completion of a criminal trial of the subject of the records. Petitioner claimed that because of the news coverage Mr. Killpack has already received, the additional information from the requested records would not reasonably deprive Mr. Killpack of his constitutional right to a fair trial.

6. Petitioner also argued that based upon the fact that Mr. Killpack was a Utah State Senator at the time of his arrest , release of the requested records should be within the public’s right to access to information concerning the conduct of the public’s business. See, Utah Code Ann. § 63G-2-102(1)(a).

7. Petitioner further argued that the records were initial contact reports. Respondent argued that the records could not be characterized as initial contact reports because they were instead a “four page DUI form/report and video.”

8. An initial contact report means an initial written or recorded report, however titled, prepared by peace officers engaged in public patrol or response duties describing official actions initially taken in response to either a public complaint about or the discovery of an apparent violation of law. Utah Code Ann. § 63G-2-103(14)(a). Initial contact reports are normally public. Utah Code Ann. § 63G-2-301(3)(g).

9. After hearing arguments and reviewing the materials submitted by the parties, the Committee finds Respondent’s claim that the records should be protected pursuant to Utah Code Ann. § 63G-2-305(9) unpersuasive. The evidence presented showed that any investigation of Mr. Killpack had been completed. Further, Respondent was unable to demonstrate how the release of the records would create a danger of depriving him of a right to a fair trial. Additionally, the Committee finds that the requested records are “initial contact reports” and therefore, are public records.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner Chris Vanocur/ABC 4 News, is upheld, and Respondent, Department of Public Safety is hereby ordered to release the initial arrest records and dashboard camera video regarding the arrest of Mr. Killpack pursuant to Utah Code Ann. § 63G-2-301(3)(g).

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the governmental entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental entity 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.

Dated this 18th day of February 2010.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee