The Sanpete Messenger won a unanimous victory recently in a Utah Records Committee appeal to discover the name of a juvenile struck by a car while walking down a highway near Fountain Green.
The Utah Highway Patrol withheld the name of the 16 year old who was critically injured in the June 5 accident, and who had most likely walked away from a group home in the Moroni area.
"I was gratified that the decision of the Records Committee in our favor was unanimous," Suzanne Dean, owner of the Messenger, said. "I understand unanimous decisions are pretty rare."
She added, "We were intimidated going up against an assistant attorney general, but quite honestly, our side swamped the state representatives. The journalists who testified were far more articulate, and knew and cited the law far more effectively than the Department of Public Safety representatives."
Christian Probasco, senior writer for the Messenger, who filed the initial Government Records Access Management Act (GRAMA) request for the boy's name, followed by appeals to the UHP and then the records committee, gave credit for the victory to other members of the media who testified during the case.
Joel Campbell, BYU associate professor of communications discussed the legal history of accident reports and argued that the UHP's actions were unprecedented ..
Linda Peterson, managing editor of the Valley Journals and President of the Utah Foundation for Open Government, focused on what she, and ultimately the committee, believed was an attempt by the UHP ..to interpret a new category of protected documents into existence.
"It is a very dangerous thing when law enforcers become interpreters of the law," Petersen said.
Sheryl Worsley, news director at KSL and president of the Utah Headliners Chapter of the Society of Professional Journalists, relayed some of the stories her organization had covered about minors killed in accidents.
"Our hands are being tied," she said. "Our ability to let the public know what's happening in the world around them is being hampered."
Her arguments were echoed by Dean, who read the first few paragraphs of an award winning story she had written on a fatal accident in 2003 in which 17-year-old Emily Bingham was killed.
Then she backtracked and read the story as it would have been written if she had been unable obtain Emily's name.
"Hours after a minor died,
people were talking about the fiery auto crash that killed him or her," Suzanne read. "But days afterward, people were talking about him or her."
She explained that the Messenger's reporting led the Utah Department of Transportation to investigate the section of road where the accident occurred. Since the accident, the road has been widened to include a turn lane at the point where the death occurred.
Probasco said he couldn't guarantee a specific "public good" from the investigation of the June 5 accident or any news story. He argued, however, that the true public good, outweighing an invasion of privacy in accident cases, was that they could be investigated by journalists who do not have to answer to any government agency. Newspapers, he testified, have to answer to their readers.
Probasco emphasized that he was not pointing the finger at UHP troopers. "They have a difficult job," he said. "I don't know how you can deal with an accident scene, for example, where a minor died. I couldn't do it."
Assistant Attorney General Kevin Bolander argued that the law on the issue of privacy vs. public access to information was murky, that the name of the boy was not newsworthy, that minors had special privacy rights and that if DPS released the name, the action would represent a "clearly unwarranted invasion of privacy."
Committee members ap-peared skeptical from the onset about those arguments. They grilled Bolander and Dwayne Baird, public information officer for the Department of Public Safety, and appeared to conclude that in fact, Utah law clearly requires the release of victims' names, ages, city of residence and other information in initial reports, that there was never an exception for minors, and that there was no precedent or justification for UHP's actions in the Sanpete County case.
"I am not following your argument," member Holly Richardson told Bolander. "It just does not make sense to me.
Lex Hemphill, the committee's media representative, said the state hadn't met the standard set in the 2008 Utah Supreme Court case Deseret News vs. Salt Lake County, which involved Deseret News reporting about a county employee accused of sexual harassment.
The court held that records "could not be withheld merely because (their) contents invade personal privacy." The decision said personal privacy had to be weighed against "constitutional and public policy interests."
Probasco said he was happy with the victory but warned that the committee had ruled narrowly on the case. There is nothing to prevent UHP from trying to withhold a name in the next case.
"Accident reports are usually where we start our investigations," Probasco said. "If we have to fight the UHP for information on every case, or even a large percentage of cases, we'll be shut down. We need the cooperation of the UHP and other police agencies to get the story."
This case, Dean said, provided proof of the damage that can be done when information is withheld. In his initial brief issued about a week before the hearing, Kevin Bolander, the assistant attorney general, wrote that the minor who had been hit "was seriously injured and subsequently died as a result of his injuries."
"We assumed the assistant attorney general knew what he was talking about, so we report-
ed that the kid was dead," Dean said. "A few days later, the Attorney General's Office issued a supplemental brief stating that the youth did not die. Then at the hearing the state attorney who made the mistake turned toward the press table and accused us of inaccurate reporting. My jaw kind of dropped at that point."
Probasco said that if the UHP had released the name of the boy and the city he came form at the time of the accident, the newspaper would have followed up and run a story reporting on the youth's release from the hospital. Under that scenario, the error wouldn't have happened.