State Records Committee Appeal 2008-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RUSSELL SHANE JOHNSON Petitioner, vs.

SOUTH JORDAN CITY, Respondent.

DECISION AND ORDER

Case No. 08-03
By this appeal, Russell Shane Johnson, seeks that the State Records Committee overturn the City of South Jordan's partial denial of his request for copies of "all records of discipline against police officers of and by the South Jordan Police Department, including written reprimands, over the past three years, for which all time periods for administrative appeal have expired; and the charges on which the disciplinary action was based were sustained."  Mr. Johnson further seeks that the Committee determine that fees imposed by South Jordan were improper and unreasonable.

The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on March 13, 2008, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act ("GRAMA") specifies that "all records are public unless otherwise expressly provided by statute."  Utah Code Ann. 63-2-201(2).  GRAMA further specifies that records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee are normally public if "(i) the disciplinary action has been completed and all time periods for administrative appeal have expired and (ii) the charges on which the disciplinary action was based were sustained."  Utah Code Ann. 63-2-301(3)(o).     However, to the extent that such a record is expressly exempt from disclosure, access may be restricted under Utah Code Ann. 63-2-201(3)(b), 63-2-302, 63-2-303, or 63-2-304.  See id.

2. South Jordan City concluded that requested records of discipline not listed as appealable disciplinary action in Utah Code Ann. 10-3-1106(2)(a) were restricted from public access and therefore denied access to those records.     
3. The State Records Committee concludes that pursuant to Utah Code Ann. 63-2-301(3)(o), records that disclose information relating to formal charges or disciplinary action against a past or present governmental employee are public if the disciplinary action has been completed and that the lack of an appeal provision does not affect public access to the records.  The requested records are public and therefore should be released.

4. During the hearing before the Committee, Mr. Johnson accepted South Jordan's offer to refund fees for retrieval of and compiling the records and withdrew his appeal as to the amount of fees charged by South Jordan.  The Committee therefore does not make a determination in regard to whether the fees imposed by South Jordan were improper or unreasonable.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Russell Shane Johnson is granted in part.  Pursuant to Utah Code Ann. 63-2-301(3)(o), South Jordan shall provide Mr. Johnson with copies of requested records that disclose information relating to disciplinary action where the action has been completed and even though the action is not subject to appeal under Utah Code Ann. 10-3-1106(2)(a).

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court.  The petition for review must be filed no later than thirty (30) days after the date of this order.  The petition for judicial review must be a complaint.  The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. 63-2-404.  The court is required to make its decision de novo.  In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. 63-2-403(14)(d), the government entity herein shall comply with the order of the State Records Committee and, if records are ordered to be produced, file (i) a notice of compliance with the records committee upon production of the records; or (ii) a notice of intent to appeal.  If the government entity fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (a) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (b) send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies entities.

Entered this 20th day of March, 2008.

BY THE STATE RECORDS COMMITTEE

____________________________________
SCOTT WHITTAKER,
Chairperson Pro Tem
State Records Committee