Evidence Lost? Utah Law No Help When Video Or Audio Not Saved


If a government agency loses a document or video that you need to help prove your case in court, you’re just out of luck.

In several recent Northern Utah cases, data wanted as evidence in criminal or civil cases could not be produced by the agencies responsible. And watchers of government records access issues say there’s simply no recourse for anyone burned by the loss of records.

In Riverdale, Weber County prosecutors wanted to review the police department’s video interview of murder suspect Luciano Gabriel Silva, but the file was not preserved because of a data-handling mix-up, according to court testimony.

A retired Utah Highway Patrol trooper fighting a traffic-stop charge obtained a copy of the video recording of the stop, but there was no audio — police said there was no audio because of an equipment malfunction.

And in Morgan County, an internal affairs investigation report of an officer-involved shooting was reported lost in a computer crash and a paper copy could not be found. The woman injured in the shooting wanted the report as evidence in her civil suit against the county and the sheriff’s deputy.

State law addresses possible misdemeanor penalties for intentional destruction of government information, “but nobody’s ever used it to penalize someone for screwing up,” said Joel Campbell, a Brigham Young University journalism professor who monitors freedom of information issues.

“It’s safe to say the law’s a paper tiger,” Campbell said.

Riverdale Police Officer Luigi Panunzio explains that is car surveillance camera always shows on his computer screen but doesn’t show on the lower screen unless it is recording in Riverdale on Thursday, Nov. 10, 2016. Footage that is recorded is directly loaded via L3 to a data storage room in the building. Officers are able to watch the footage but are not able to edit, delete or manipulate the footage that is sent.

Utah’s Government Records Access and Management Act doesn’t say anything about lost records or computer or electronic data failures.

“That’s kind of it,” said Rosemary Cundiff, state records ombudsman. “What can you do?”

Jeff Hunt, an attorney who represents journalists and media companies in records and open meetings cases, said it’s not an easy problem to fix.

“With negligent destruction or losing records, the only thing really you can do on that is just training … of records officers and people in the government entity. I don’t know that you can legislate that kind of thing.”

Hunt said he doubts the Legislature has an appetite for addressing the issue and predicts the Utah League of Cities and Towns would oppose sanctions against negligence or accidental destruction.

According to state law, individuals in government cannot be held liable for withholding or losing records, Campbell said.

“I am not aware of anything specific that’s ever happened to anyone for not giving records,” Campbell said. “That’s a pretty sad commentary.”

GRAMA, Campbell said, was intended to balance government and privacy interests with transparency and public interests, but the laws are weighted toward the government. .

Hunt added, “The whole system does rely on the good faith of people.”

Riverdale Police Lt. Casey Warren, when asked about the two lost-data cases involving his department, said some problems are inevitable with electronic systems.

“It’s technology,” he said. “Does your computer ever break down?”

The frequency of data or document losses in the state and local governments is not known. Cundiff said the State Archives, which administers GRAMA, does not track loss of data or document.

While occasional loss of files might seem innocuous, Campbell said it quickly becomes high stakes if a person is facing prison time.

Three civil liberties groups proposed legislation in 2015 that would provide some protection for a defendant in a case in which electronic evidence was intentionally destroyed or lost. The bill said a court would presume that the lost or unrecorded footage would have captured something beneficial to the defendant’s case.

But the bill died in the Legislature.

State and local agencies are not alone with imperfect data shuffling. An analysis by the Associated Press in March 2016 found that in one of six records requests filed under the U.S. Freedom of Information Act, government employees reported they could find no documents.

Source: standard.net