Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2012-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KURT DANYSH, Petitioner, vs.

UNIFIED POLICE DEPARTMENT, Respondent.

DECISION AND ORDER

Case No. 12-09

By this appeal, Petitioner, Kurt Danysh, seeks to appeal the denial of his request for records related to the police investigation of the murder of Susan Gall.

FACTS

On or about October 8, 2011, Mr. Danysh made a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to the Unified Police Department (“UPD”). Specifically, Mr. Danysh requested records pertaining to the December 14, 2001 murder of Susan Gall by her son Leonard Gall, including all police reports, witness reports, and crime scene photographs. UPD initially denied Mr. Danysh’s request, but subsequently provided redacted copies of the reports and witness statements. UPD segregated the crime scene photographs into the following four categories:

  • GROUP (1) Consisting of photographs of the exterior and interior of the victim’s residence.
  • GROUP (2) Consisting of photographs of the victim.
  • GROUP (3) Consisting of photographs of Leonard Gall in a state of dress and undress, photographs of Leonard Gall’s vehicle, and photographs of prescription medications taken by Leonard Gall.
  • GROUP (4) Consisting of autopsy photographs of the victim taken by the medical examiner.

On April 11, 2012, UPD, denied access to Groups 1, 2 and 3 citing Utah Code § 63G-2-302(2)(d) indicating release of the photographs would constitute a clearly unwarranted invasion of privacy of the victim and surviving family members. UPD also denied access to photographs from Group 4, citing Utah Code § 63G-2- 201(3)(b) finding that photographs taken by a medical examiner were governed by Utah Code § 26-4-17 and pursuant to that statute, the photographs were not public. Mr. Danysh now appeals the denial of crime scene photographs to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on May10, 2012, 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 not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy if properly classified are private. See, Utah Code § 63G-2-302-(2)(d).

3. Records to which access is restricted pursuant to another state statute are not public. See, Utah Code § 63G-2-201(3)(b).

4. Mr. Danysh argued that the narrative contained in the investigative report was inadequate and it was necessary for him to review crime scene photographs in order to fully understand the nature of the crime. He testified that he was writing a book about the alleged connection between some prescription medications and violent crimes committed by individuals on such medications. Mr. Danysh contended that Leonard Gall, convicted for the murder of Mrs. Gall, was taking prescription medication at the time of the murder, and the release of the photographs would help assist him in the writing of his book. Mr. Danysh argued that the “clearly unwarranted invasion of personal privacy” protection given to individuals, pursuant to Utah Code 63G-2-302-(2)(d), only applied to the victim, Susan Gall, and did not apply to the victim’s surviving family. Mr. Danysh further contended that since Mrs. Gall was deceased, her right to personal privacy expired with her.

5. Mr. Danysh further argued that even if the photographs were found to be non-public, the photographs should still be released to him because he believed his book would be a benefit to society. Mr. Danysh claimed that release of the photographs would help him show the dangers of certain prescription drugs, and that this public purpose outweighed any privacy interests of the victim and the surviving family.

6. UPD argued that the surviving members of the Gall family had a right to privacy, pursuant to Utah Code § 63G-2-302(2)(d). The investigating officer in the murder case testified concerning the unusually gruesome nature of the crime scene within the interior of Mrs. Gall’s home. UPD claimed that Mr. Danysh’s GRAMA request and the subsequent release of the photographs would open “deep wounds” for the family and that surviving family members objected to the release of the crime scene photographs. Further, the crime scene photographs had never been released to the public or the surviving family members. UPD also argued that a 67 page investigative report provided to Mr. Danysh adequately described the details of the crime and the horrific crime scene sufficient for Mr. Danysh’s purposes.

7. After hearing the arguments of the parties, and having reviewed their submissions, the Committee is persuaded that pursuant to Utah Code § 63G-2-302(2)(d), release of any photographs of the victim or the interior of the victim’s home would be a clearly unwarranted invasion of Mrs. Gall’s privacy and the privacy of the surviving members of her family. Accordingly, the Committee finds that the photographs contained in Group 2 as outlined above depicting the victim or the interior of the victim’s home are private. Photographs contained in Group 3 depicting the perpetrator, Leonard Gall, unclothed are also private.

8. However, the Committee is not persuaded that all the photographs associated with the investigation of the crime are “private” but, instead, finds that certain photographs listed in Groups 1 and 3 as outlined above, are public and should be released to Mr. Danysh. Specifically: (1) photographs contained within Group 1 depicting the exterior of the victim’s home are public; and (2) photographs contained in Group 3 taken by the Reno-Nevada Police Department showing Leonard Gall clothed are public. Additionally, photographs of Leonard Gall’s vehicle are public.

9. The Committee finds that the autopsy photographs contained in Group 4 are subject to restricted access pursuant to another state statute, specifically Utah Code § 26-4-17, and therefore, are not considered public records.

ORDER

THEREFORE, IT IS ORDERED, that the appeal of Petitioner is upheld in part as it pertains to Groups 1 and 3 as outlined above and the Unified Police Department is hereby ORDERED TO, release such photographs to Petitioner.

IT IS FURTHER ORDERED, that the appeal of Petitioner as to photographs contained in Groups 1, 2, and 4 as outlined above, is DENIED.

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 § 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 § 63G-2-403(14)(d), the government 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 records committee upon production of the records; or (2) a notice of intent to appeal. If the government 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.

Entered this 18th day of May, 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee