State Records Committee Appeal 2008-10

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN MAESE, Petitioner, v.

MURRAY CITY, Respondent.

DECISION AND ORDER

Case No. 08-10

By this appeal, Steven Maese seeks access to the names of individuals redacted from eight records produced by the City of Murray in response to his GRAMA request dated February 21, 2008. Mr. Maese's request was for "[a]ll records of sustained discipline of Murray City Police Officers, for which all time periods for administrative appeal have expired, for the last 5 years." The State Records Committee hereby grants Mr. Maese's request in part based upon the following:

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. 63G-2-201(2). Records that are not public are designated as either private, protected, or controlled. See Utah Code Ann. 63G-2-302, -303 and -304. The City of Murray denied Mr. Maese the records he seeks on three separate grounds. First, certain portions of the records sought are classified as "protected records" per Utah Code Ann. 63-2-304. Second, the records are considered attorney work product per Utah Code Ann 63-2-304(17). And third, release of the records would be a clear unwarranted invasion of personal privacy per Utah Code Ann 63-2-304(25).

2. After hearing arguments from both parties at a hearing held on June 12, 2008, the Committee finds that the information contained in the records sought by Mr. Maese is public per Utah Code Ann 63G-2-301(3)(o). The said letters of sustained disciplinary reports, should not be considered "investigatory reports" and therefore, cannot be exempted from the requirements of Section 301(3)(o). In providing the names of officers/employees, there is no clear "unwarranted invasion of privacy" of the governmental employees with regard to sustained disciplinary reports. The Committee further finds that a distinction exists between the sustained disciplinary letters/reports and investigatory reports. It should be noted that governmental employees have some expectation of privacy in un-sustained cases of discipline, but such is not the case for sustained cases of discipline.

3. The Committee is persuaded that witnesses providing information for investigations may have a reasonable expectation of privacy per Utah Code Ann 63G-2-304(25). Therefore, the release of their identifying information contained in disciplinary reports, sustained or otherwise, as well as investigatory reports, would constitute a clear unwarranted invasion of privacy. Accordingly, Mr. Maese is not entitled to identifying information of witnesses contained in the requested eight records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Steven Maese is granted in part. The City of Murray is hereby directed to within ten (10) days of receipt of this Order, release the documents sought by Petitioner with the names of Officers in sustained disciplinary letters/reports without redaction per Utah Code Ann 63G-2-301(3)(o). Additionally, all identifying information as it pertains to witnesses shall continue to be redacted per Utah Code Ann. 63G-2-304(25).

RIGHT TO APPEAL

Either party may appeal this Decision and Order to a District Court. The petition for review must be filed no later than thirty (30) days after the date of this order and be filed in the form of a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. 63G-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. 63G-2-403(14)(d), the City of Murray shall comply with the order of the Committee and, file either: (1) a notice of compliance with the records committee upon production of the records; or (2) a notice of intent to appeal the order. If the City of Murray fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) 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 19th day of June 2008.

BY THE STATE RECORDS COMMITTEE

SCOTT WHITTAKER, Chair
State Records Committee