GRAMA Should Not Involve “Adversarial Combat,” But What Happens When It Does?

Panel Members Margaret Plane, City Attorney for Salt Lake City Mark Kittrell, Senior City Attorney for Salt Lake City Mara Brown, Deputy City Attorney for Ogden City

Alternative Titles We Considered . . .

Fight Club: What You Need to Know When Litigating GRAMA

GRAMA Strategies: Picking Your Hill to Die On

GRAMA Issues

Fees

Utah Code § 63G-2-203(1) A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record.

Total Fees Charged Total Fees Waived Assigned Department $321.55 $21.08 Attorney Total $0.00 City Council Total $1,840.66 $509.46 Community & Neighborhood Development Total 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 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 $30.25 Public Services Total $517.00 $208.45 Public Utilities Total Redevelopment Total $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 Most Governmental Entities spend an average of 260 minutes per day fulfilling records requests, That’s nearly four-and-a-half hours per day.

2017 GRAMA Requests

Pending Fee Waiver Case Salt Lake City Corporation v. Jordan River Restoration Network

Salt Lake City Corporation v. Jordan River Restoration Network

Salt Lake City Corporation v. Jordan River Restoration 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

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 to public discussion? Impact on other City responsibilities? Received other fee waivers?

Privilege & Work Product

“records that are subject to the attorney- client privilege” 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 General’s Office

Schroeder v. Utah Attorney General’s Office Allegations that mayor’s office was involved in diverting funds to an unregistered shell organization, that then gave the funds to his re- election campaign.

Public Interest Public interest in records that may document: A breach of the public trust; Solicitation of donations under false pretenses; and Misuse of donations for political purposes.

Watch the timing: request made one day after case closed.

Supreme Court rules four years later 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 City’s interest in protecting the records from disclosure outweighed the asserted public interest in disclosure.

Utah Legal Clinic v. Salt Lake City Corporation

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 63G- 2-302(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 76-2- 408(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-2- 305(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 time-intensive redaction Critical 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 recordings of OICIs

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=nqs13omgW5A

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