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

2. 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

3. Alternative Titles We Considered . . .

4. Fight Club: What You Need to Know When Litigating GRAMA

5. GRAMA Strategies: Picking Your Hill to Die On

6. GRAMA Issues

7. Fees

8. 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.

9. 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

10. 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.

11. 2017 GRAMA Requests

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

13. Salt Lake City Corporation v. Jordan River Restoration Network

14. Salt Lake City Corporation v. Jordan River Restoration Network

15. 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.

16. Fee
Waiver
Procedure

17. Burden on the Requester:
The release primarily benefits the public; and
The factors weigh in favor of the waiver.

18. Other Determining Factors
Reasonably focused?
Contribution to public discussion?
Impact on other City responsibilities?
Received other fee waivers?

19. Privilege & Work Product

20. “records that are subject to the attorney- client privilege”
Utah Code § 63G-2-305(17)
“records that are subject to the attorney- client privilege”

21. 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”

22. Schroeder v. Utah Attorney General’s Office

23. 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.

25. 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.

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

27. Supreme Court rules four years later
Supreme Court rules four years later by that time, any interest in protecting the records had significantly diminished!

28. Pending Public Interest Case
Utah Legal Clinic v. Salt Lake City Corporation

29. 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.

30. Utah Legal Clinic v. Salt Lake City Corporation

31. Police Body Cam Recordings

32. 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

33. Police Body Cam Recordings
GRAMA makes private certain body cam recordings (Utah Code 63G (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 (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

34. 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

35. 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 (10)(b) or (c) due to a pending criminal action that has been filed in a court of competent jurisdiction.

36. 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

37. 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

38. 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

39. Police Body Cam Recordings
ACLU v. Salt Lake County District Attorney, et al.

40. Police Body Cam Recordings
State Records Committee Decision (January 24, 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

41. Executive Order on Release of Body Cam Recordings in OICIs

42. Executive Order

43. 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

45. State Records Committee – Practice Tips
Tip #1 – Use the Ombudsman (if it makes sense)

46. State Records Committee – Practice Tips
Tip #2 – Use Declarations

47. State Records Committee – Practice Tips
Tip #3 – Be brief in your presentation