bustedmugshots.com owner suing Salt Lake County for jail booking pictures

23 05 2013

The owner of a mug-shot website wants a judge to decide on whether Salt Lake County can invoke copyright to withhold booking photos.

As Mike Gorrell reports, Kyle Prall, owner of bustedmugshots.com, is going to court to overturn the county’s denial of his Government Records Access and Management Act (GRAMA) request for 1,388 mug shots taken between Jan. 11 and Jan. 27. The county claimed the pictures were classified as protected records under the federal Copyright Act.

The move is an effort by the county to keep the mug shots off websites that publish the pictures, only removing them if the person pictured pays a fee. Salt Lake County Sheriff Jim Winder has also removed the pictures from the jail’s website, requiring those who seek them to file a GRAMA request.

Prall’s site offers to remove pictures for free for those who have been acquitted or not charged, while charging others at least $98 to take down their pictures.

Prall argues that if allowed to stand, the copyright argument could be used to undermine open-government laws.”

Federal copyright law also states that government cannot claim copyright for any documents it creates.

Prall claims the county’s move also flies in the face of GRAMA by allowing government to withhold records based on how they plan to use the documents. GRAMA does not look at the requester’s intent when weighing whether a record should be released.

County Council Chairman Steve DeBry declined to comment, citing the lawsuit.

Advertisements




Utah State Records Committee looking to fill vacancy for public member

13 05 2013

Do you have an interest in open government? The Utah State Records Committee is looking for you.

The committee is seeking applications from people interested in filling the vacancy for a second public member on the seven-member body. The committee hears appeals of records requests, as well as establishes records retention policies.

The board includes representatives of local government, news media, private business, the governor’s office and the public.

The current opening was created when the Utah State Legislature amended the law defining the committee’s membership, converting the state auditor’s position into a public member’s seat. State Auditor John Dougall asked for the change on the grounds that he didn’t want a conflict of interest if he had to audit the committee.

(Dougall fired Betsy Ross, the auditor’s appointee to the records committee, claiming she was not doing her job as the auditor’s director of legislative and government affairs. Ross, as the committee’ chair, had opposed HB477, the bill Dougall sponsored as a lawmaker that gutted the Government Records Access and Management Act).

The public member would be nominated by the governor, and approved by the Utah State Senate.

Lex Hemphill, the committee’s chairman, said interested parties can apply on the governor’s website, under boards and commission, or by contacting the board’s secretary, Susan Mumford, at smumford@utah.gov or at 801-531-3861. Hemphill said contacting Mumford would allow the committee to know who applied.





New Jersey bill would make mug shots public records

9 05 2013

Just as Utah officials are looking for ways to restrict access to mug shots, New Jersey is going in the opposite direction.

The Daily Record of Parsippany, N.J., reports that a bill is moving through the Garden State’s legislature classifying booking photos as public records. The state’s open-records laws were ambiguous on the point, with some counties denying access and others granting it.

“Releasing pictures of defendants puts a face with a name,” the bill’s sponsor, Assemblyman Ronald S. Dancer, R-Ocean County, told the paper. “These pictures serve important public purposes, including protecting the transparency and integrity of our legal process for victims and offenders, helping to identify criminals on the run and keeping law-abiding citizens informed about the crimes and potential criminals in their communities.”

Dancer’s bill would require mug shots to be released to the public within 24 hours of an arrest when practical.

Local prosecutors had read state law as meaning they could withhold mug shots. They also argued that releasing the photos could possibly taint the jury pool.

But the bill’s supporters say there is no evidence that releasing the photos would sway potential jurors.

“If the prosecutors were right, then we should never release arrest information, because that will taint the jury pool, too,” Walter Luers, an open-government attorney, told the Daily Record. “The fact is any coverage any time the information gets out will taint the jury pool.”

Contrast that to Utah, where several jailers are making it more difficult to download — or even view — mug shots in an attempt to keep them away from mug-shot websites that purportedly charge people to remove the images.

Salt Lake County, for example, no longer posts mug shots online, requiring people to file a request under the Utah Government Records Access and Management Act to get copies. And even that isn’t a guarantee, as the owner of bustedmugshots.com learned.

In that case, the county declared that the mug shots couldn’t be released because that would violate copyright laws.

This year, the Legislature passed — at Salt Lake County Sheriff Jim Winder’s insistence — HB408, which requires people filing GRAMA requests for mug shots to sign a sworn statement that they won’t post the pictures on websites that charge to remove them.

The New Jersey bill is headed to committee.





Utah District Court affirms records should be free if public benefits

6 05 2013

A 3rd District Court judge’s ruling in an open-records case does more than force the Utah Legislature pay $15,000 in attorney’s fees.

Judge L.A. Dever’s April 30 ruling on behalf of the Utah Democratic Party affirms that government agencies should waive fees when a records request benefits the general public. Dever rejected the Legislature’s attempt to charge the Democrats almost $15,000 for copies of correspondence and other documents related to the redistricting effort.

“I’ve always maintained if there were a case that qualified for public interest, this was it,” said Joel Campbell, an associate professor of journalism at Brigham Young University.

The party sought the documents to find evidence of Republican skulduggery in the once-a-decade redrawing of congressional and legislative district boundaries. Initially, the Democrats agreed to pay $5,000, but lawmakers increased the fee, and only allowed them to take one of three boxes of documents unless additional money was paid.

Eventually, after The Salt Lake Tribune and other media outlets sought to obtain the records, lawmakers posted them online for no cost.

Utah’s Government Records Access and Management Act states that government agencies may waive fees if releasing documents would benefit the public rather than an individual. However, the fee waiver is strictly discretionary.

Rep. Brian King, D-Salt Lake City, attempted to remove that discretion from the law with a bill that would have required fee waivers if the public-interest test was met. That bill was sent to interim study after the Utah League of Cities and Towns claimed it would be financially ruinous to cities to offer free records.

Even though district court decisions are not considered decisions of record, Campbell believes it will establish a precedent for demanding fee waivers in cases where a documents are sought for a public benefit.





Not all entities are posting on Utah’s Transparency website

3 05 2013

Since 2009, Utahns have been able to log on to a state website and see how much public employees are paid, as well as what agencies and governments were spending.

The goal behind the Transparent Utah website was to make government more, well, transparent. And in some ways it helps. Entities with budgets in excess of $1 million are required to post their books on the site.

But, as was discussed during Tuesday’s Transparency Advisory Board meeting, and heavy users of the site know, not everyone is doing that.

For example, out of 272 counties, municipalities and service districts that were supposed to start reporting their payroll in 2011, 11 have failed to do so. Out of 146 charter schools, colleges and universities, school districts and transit districts, eight have not provided payroll data.

Overall, nearly a third of the entities required to report did not submit 2012 salary data.

Darrell Swensen, the state’s transparency coordinator, said he didn’t think it was malice driving the lack of response. He said it was a matter of priorities for some entities. In other cases, the job passed from one person to another, the responsibility for posting the data eventually forgotten.

But the law does not provide any penalties for agencies that don’t get their payroll records online within the first quarter of a new fiscal year. Right now, the only enforcement mechanism is Swensen encouraging them to post, and providing a template to help them do it.

To really punish the delinquent entities would require revising the law, and Senate President Wayne Niederhauser, who drafted the law and chairs the transparency advisory board, said that is not likely to happen.

“I would rather take the passive approach,” Niederhauser said.

John Reidhead, the board’s vice chairman, suggested one way to bring the delinquents to heel is to have a statement put in their annual audit reports that they were not posting the information.

Another option, floated by Robert Woolley, with the state’s Department of Technology Service, was to create a “wall of shame” on the state site, highlighting which agencies are not turning in their data. He envisioned a box on the site’s homepage, showing the logo and the name of the offending entities.

The only drawback to that is that only site users will see who’s listed as delinquent, and the transparency site is not exactly a hub of Internet activity. This idea is sort of akin to pillorying someone in a private courtyard.

But to help shine the spotlight on the problem, here is a list of some of the entities that should be posting on the transparency site, but are falling behind, and fiscal year last posted online.

Box Elder County (2011)

Coalville (no data)

Duchesne (2011)

Fairview (2011)

Green River (2011)

Helper (2011)

Holladay (2011)

Kamas (2011)

Kanab (2011)

La Verkin (2011)

Lindon (2011)

Monticello Academy (no data uploaded)

Payson (2011)

Panguitch (2011)

Provo School District (2010)

South Ogden (2011)





U.S. Supreme Court: States can withhold documents from nonresidents

29 04 2013

The U.S. Supreme Court, in a unanimous decision announced Monday, stated that there is no constitutional right for people to obtain public records from states they don’t live in.

According to the Reporters’ Commitee for Freedom of the Press, the high court upheld a provision in Virginia’s Freedom of Information Act that states non-residents cannot file records requests.

“This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws,” Justice Samuel Alito wrote for the court.

The suit was brought by Mark J. McBurney and Roger W. Hurlbert. McBurney, a former Virginia resident who moved to Rhode Island, attempted to obtain information on child-support payments from his ex-wife. Hurlbert, a California businessman, was seeking property-tax records for his business.

The pair are planning to lobby Virginia to repeal the residents-only clause in its records act.

The Society of Professional Journalists and other open-government groups filed friend-of-the-court briefs supporting the pair’s lawsuit.





State records ombudsman offers primer on Utah records fees

26 04 2013

Rosemary Cundiff, the state’s records ombudsman, recently posted an explanation of what fees can be charged under the Utah Government Records Access and Management Act (GRAMA).

To put it in a nutshell, government entities can charge “reasonable fees” to cover the costs of producing records. The idea is that the employee who is filling the records request is being pulled away from other duties and there’s the cost of the paper and toner in the copier.

During the HB477 debacle in 2011, then-Rep. John Dougall attempted to expand the definition of reasonable fee to include the cost of benefits for said employee, the utilities for the office building and whatever else he could to jack up the fees.

Cundiff outlines what should be considered as a reasonable cost, such as only billing for the hourly wage of the lowest-paid person who can fulfill the request. That means if a $7.25-an-hour clerk can find the documents, the agency can’t bill you for the $200-an-hour lawyer to do the same thing.

Utah does allow for fee waivers, but as Cundiff points out — and many record seekers have learned the hard way — that the law says fees may be waived. In other words, an agency can waive fees out of the goodness of its heart, but is not legally required to do so.

This leaves the door open for some agencies to turn public records into a revenue stream, or use a fee as a way to discourage people from seeking records, since they are not commanded to waive fees.

State Rep. Brian King, D-Salt Lake City, attempted to address this by taking away the discretion in cases where the public benefited from releasing the document. But after the Utah League of Cities and Towns said the move would drive cities to the brink of fiscal ruin, lawmakers threw the bill into interim study, where open government advocates hope it will be considered and not allowed to die a slow, quiet death.

But in the meantime, what can people do to ensure that they are not paying too much for public records?

First, as Cundiff points out, there is no fee to merely look at a public record. People can do this to narrow their search to exact pages they are looking for, and thus reduce their copying costs. The agencies are barred from charging for staff time for these inspection sessions.

And if you want copies, make them yourself, as Joel Campbell, an assistant professor of print journalism at Brigham Young University pointed out. There are portable scanners that look like wands and don’t have to be hooked up to a computer to make a digital copy of a document. Or just use your digital camera or cellphone to take a picture of the document, as I’ve done in the past.

If the records are electronic, bring a thumb drive to copy them.

And if you get charged a fee, ask for a specific breakdown of the cost, line by line. And it helps to do a little homework before and find out what other agencies are charging for copy fees, as well as what the local copy shop charges for a photocopy. If a copy shop can make money off a 7-cent copy, why is a government agency charging 25 cents or even a dollar?

If all else fails, fees can be appealed in the same manner as denials. While the law says fees may be charged, the State Records Committee has found instances where an outrageous fee was being used as a means to deny access and ordered the fee waived.