GRAMA Should Not Involve "adversarial combat," But What ...
GRAMA Should Not Involve Adversarial Combat, But What Happens When It Does? GRAMA Issues Fees Utah Code 63G-2-203(1) A governmental entity may charge a reasonable fee to cover the governmental
entitys actual cost of providing a record. Total Fees Total Fees Charged Waived Assigned Department $321.55 $21.08 Attorney Total $0.00 $0.00 City Council Total
Community & Neighborhood $1,840.66 $509.46 Development Total $0.00 $0.00 Economic Development Total $85.25 $8.25 Finance Total $2,152.75 $5.50 Fire Total $46.75 $13.75 Human Resources Total $48.00
$5.50 Information Management Services Total $4.50 $5.25 Justice Court Total $22.00 $44.00 Mayor's Office Total $70,882.48 $722.97 Police Total $44.00 $30.25 Public Services Total $517.00 $208.45 Public Utilities Total $46.75
$0.00 Redevelopment Total $0.00 $2.75 Site Administrator Total $3,920.18 $66.00 SLC Department of Airports Total $79,931.87 $1,643.21 Grand Total GRAMA Requests Increasing Annually 16,000 14,000
13,355 12,000 10,000 14,202 10,268 8,000 6,000
Requests 4,000 2,000 0 2,390 2014 2015 2016
2017 2017 GRAMA Requests 585 463 531 Police Fire
General City Airport 12623 Pending Fee Waiver Case SALT LAKE CITY CORPORATION V. JORDAN RIVER RESTORATION NETWORK Salt Lake City Corporatio n
v. Jordan River Restoratio n Network Salt Lake City Corporatio n v. Jordan
River Restoratio n Network Utah Code 63G-2-203(4) A governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that . . . releasing the record primarily benefits the public rather than a person.
Fee Waiver Procedure Fee Waiver Procedure Salt Lake C ity Procedure GRAMA Fee Waivers RESPONSIBLE CITY AGENC Y:
C ity Attorneys Offic e, C ity Recorders Office This proc edure applies to fee waiver requests made to Salt Lake C ity under the Government Rec ords Ac c ess and Management Ac t (GRAMA), Utah C ode sec tion 63G -2-203 or its suc c essor provision. This procedure replaces and supersedes any previous C ity polic ies on fee waivers. This proc edure should be applied together with GRAMA and Salt Lake C ity C ode 2.64, C ity Rec ords. 1. A person seeking a fee waiver bears the burden, for eac h waiver request, of demonstrating that: a.
Releasing the record primarily benefits the public rather than a person; and b. The fac tors in this procedure should be applied to grant the waiver request. 2. Salt Lake C ity will consider each fee waiver request based on the c ircumstanc es related to that request and the following fac tors: a. Is the request broad or reasonably foc used? b. Would release of the documents to the requester contribute
signific antly to public understanding of the operations or ac tivities of Salt Lake C ity? c. Would the expenditure of time and resourc es in responding to the request signific antly affec t Salt Lake C itys ability to meet its other responsibilities? d. Are there other methods available to the requester to obtain the information sought, and have those other methods been used? e. How frequently have this requester and any organization for whic h the requester works asked for and rec eived a fee waiver? 3.
Dec isions about fee waivers will be made by the department responding to the rec ords request in consultation with the C ity Rec orders Offic e. Where appropriate, the C ity rec order will c onsult with the City Attorneys Offic e and the C hief of Staff/C hief Administrative Offic er. C URRENT REFERENC ES: 2005 C ity Memorandum on Fee Waivers; Utah C ode 63G -2-101, et seq. Burden on the Requester: The release primarily benefits the public; and
The factors weigh in favor of the waiver. Other Determining Factors Reasonably focused? Contribution
Impact to public discussion? on other City responsibilities? Received other fee waivers? Privilege & Work Product
Utah Code 63G-2-305(17) records that are subject to the attorney- client privilege Utah Code 63G-2-305(18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or
judicial, quasi-judicial, or administrative proceeding Schroeder v. Utah Attorney Generals Office 2015 UT 77 Schroeder v. Utah Attorney Generals Office Allegations that mayors office was involved in diverting funds to an
unregistered shell organization, that then gave the funds to his reelection campaign. Public Interest Public interest in records that may document: A breach of the public trust; Solicitation Misuse
of donations under false pretenses; and of donations for political purposes. Watch the timing: request made one day after case closed. Supreme Court rules four years later . . . by that time, any interest in protecting the records had significantly diminished!
Pending Public Interest Case UTAH LEGAL CLINIC V. SALT LAKE CITY CORPORATION Utah Legal Clinic v. Salt Lake City Corporation One issue appeal: whether the district court abused its discretion when it held that the Citys interest in protecting the records from disclosure outweighed the asserted public interest in disclosure.
Utah Legal Clinic v. Salt Lake City Corporatio n Business Confidentiality Practice Tips: Protecting Confidential City Records 63G-2-301 Public records.
(3) The following records are normally public, but to the extent that a record is expressly exempt from disclosure, access may be restricted under Subsection 63G-2-201(3) (b), Section 63G-2-302, 63G-2-304, or 63G-2-305: (j) drafts that are circulated to anyone other than: (v) a contractor or private provider; Implicit Notice: Interested Parties Implicit Notice: Interested Parties
63G-2-400.5 Definitions. As used in this part: (3) "Interested party" means a person, other than a requester, who is aggrieved by an access denial or an appellate affirmation, whether or
not the person participated in proceedings leading to the access denial or appellate affirmation. (6) "Records committee appellant" means: (a) a political subdivision that seeks to appeal a decision of a local appeals board to the records committee; or (b) a requester or interested party who seeks to appeal to the records committee a decision affirming an access denial.
(7) "Requester" means a person who submits a record request to a governmental entity. Appeal to Chief Administrative Officer 63G-2-401 Appeal to chief administrative officer (1) (a) A requester or interested party may appeal an access denial to the chief administrative officer of the governmental
entity Interested Party Appeal Rights 63G-2-402 Appealing a decision of a chief administrative officer (3) As provided in Section 63G-2-403, an interested party may appeal to the records committee a chief administrative officer's decision under Section 63G-2-401 affirming an access denial.
Interested Party Appeals to SRC 63G-2-403 Appeals to the records committee. (3) The records committee appellant: (a) shall, on the day on which the notice of appeal is filed with the records committee, serve a copy of the notice of appeal on: (i) the governmental entity whose access denial is the subject of the appeal, if the records committee appellant is a requester or interested party; or (ii) the
requester or interested party who is a party to the local appeals board proceeding that resulted in the decision that the political subdivision is appealing to the records committee, if the records committee appellant is a political subdivision; and (b) may file a short statement of facts, reasons, and legal authority in support of the appeal Notice of Appeal before SRC SRC shall:
(ii) send a copy of the notice of hearing to the records committee appellant; and (iii) send a copy of the notice of appeal, supporting statement, and a notice of hearing to: (A) each member of the records committee; (B) the records officer and the chief administrative officer of the governmental entity whose access denial is the subject of the appeal, if the records committee appellant is a requester or interested party; (C) any person who made a business confidentiality claim under Section 63G-2-309 for a record that is the subject of the appeal; and (D) all persons who participated in the proceedings before the governmental entity's chief administrative officer, if the appeal is of the chief
administrative officer's decision affirming an access denial. Request for Intervention before State Records Committee 63G-2-403 Appeals to the records committee (6) (a) No later than 10 business days after the notice of appeal is sent by the executive secretary, a person whose legal interests may be substantially affected by the proceeding may file a request for intervention before the records committee.
(b) Any written statement of facts, reasons, and legal authority in support of the intervener's position shall be filed with the request for intervention. (c) The person seeking intervention shall provide copies of the statement described in Subsection (6)(b) to all parties to the proceedings before the records committee. Practice Tips: Matters involving privacy of third party: should you notify a third party where government is
aware of partys identity? Who is in the best position to defend privacy right: City or third party? Practice Tips: Matters in litigation: do you coordinate with opposing party?
GRAMA requests where City is a party or potential party to litigation GRAMA requests in matters where City employee is a party
At what stage in proceedings can an interested party be involved? Police Body Cam Recordings Police Body Cam Recordings GRAMA governs the release of body cam recordings Utah Code 77-7a-107(2)(a) Any release of recordings made by an officer while
on duty or acting in the officer's official capacity as a law enforcement officer shall be subject to Title 63G, Chapter 2, Government Records Access and Management Act Police Body Cam Recordings GRAMA makes private certain body cam recordings (Utah Code 63G2-302(2)(g)) private and not private: audio and video recordings created by a body-worn camera, as defined in Section 77-7a-103, that record sound or images inside a home or residence are private, except for recordings that:
(i) depict the commission of an alleged crime; (ii) record any encounter between a law enforcement officer and a person that results in death or bodily injury, or includes an instance when an officer fires a weapon; (iii) record any encounter that is the subject of a complaint or a legal proceeding against a law enforcement officer or law enforcement agency; (iv) contain an officer involved critical incident as defined in Section 76-2408(1)(d); or (v) have been requested for reclassification as a public record by a subject or authorized agent of a subject featured in the recording Police Body Cam Recordings
Title 77, Chapter 7a contains additional requirements for the use of police body cameras 77-7a-102: Requires written policies and procedures 77-7a-103: Definitions (Law Enforcement
Encounter) 77-7a-104: Mandates when to activate (and when not to activate) 77-7a-105: Giving notice 77-7a-106:
Prohibited uses Police Body Cam Recordings 77-7a-107: Retention and Release of Recordings (1) Any recording made by an officer while on duty or acting in the officer's official capacity as a law enforcement officer shall be retained in accordance with applicable federal, state, and local laws. (2) (a) Any release of recordings made by an officer while on duty
or acting in the officer's official capacity as a law enforcement officer shall be subject to Title 63G, Chapter 2, Government Records Access and Management Act. (b) Notwithstanding any other provision in state or local law, a person who requests access to the recordings may immediately appeal to a district court, as provided in Section 63G-2-404, any denial of access to a recording based solely on Subsection 63G-2305(10)(b) or (c) due to a pending criminal action that has been filed in a court of competent jurisdiction. Police Body Cam Recordings
HB 265 amends subsection 107 to address concerns with third party vendors who store body cam recordings It prohibits contracts with third party providers who may withhold recordings or prevent access to such recordings
Police Body Cam Recordings Issues and Challenges Record that captures some of the most dynamic encounters with members of the public Captures members of the public in some of their
most private moments Captures additional images that should not be public (juveniles, discussions about DOBs or social security numbers, nudity, etc.) Requires Critical time-intensive redaction
Incidents tug and pull with investigative agencies Police Body Cam Recordings Need Fees to adequately address the level of resources used to produce body cam recordings Salt Lake City Consolidated Fee Schedule Police Body Cam Recordings
ACLU v. Salt Lake County District Attorney, et al. Police Body Cam Recordings State Records Committee Decision 2017-02 (January 24, 2017) ( https://archives.utah.gov/src/srcappeal-2017-02.html) Numerous court decisions finding that any concerns about fair trial issues could be remedied through voir
dire or venue change City had issued the written findings of the CRB that described footage in the body cam recordings SRC found that even if the records had been properly classified by Respondents as protected records, the public interest favoring access to the records is
greater than the interest favoring restriction to access. Takeaway? Only in extraordinary circumstances will the SRC uphold restrictions to access in body cam Executive Order on Release of Body Cam Recordings in OICIs Executive Order
Executive Order - Release Press Briefing No Q&A Factual Statements regarding the call and the facts known to officers on scene Timeline backed up by dispatch records and body cam recordings Set context before showing video
No or minimal redactions Show video to family before it goes public https://www.youtube.com/watch?v=nqs13o mgW5A State Records Committee Practice Tips Tip #1 Use the Ombudsman (if it makes sense)
State Records Committee Practice Tips Tip #2 Use Declarations State Records Committee Practice Tips Tip #3 Be brief in your presentation
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