State Records Committee Appeal Decision 2012-20

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ERIN ALBERTY, REPORTER FOR SALT LAKE TRIBUNE, Petitioner, vs.

UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.

DECISION AND ORDER

Case No. 12-20

By this appeal, Petitioner, Erin Alberty, Reporter for the Salt Lake Tribune, seeks to appeal the denial of her request for records regarding an officer involved shooting that occurred on March 12, 2006.

FACTS

On March 12, 2006, Utah Highway Patrol Trooper Edward Bentley (“Trooper Bentley”) shot an individual suspected of an armed robbery. A subsequent investigation by the Department of Public Safety (“DPS”) was conducted regarding the shooting. The Internal Affairs (“IA”) investigation results were forwarded to the DPS Shooting Review Board, who based upon its analysis of the IA investigation, determined the shooting to be “unjustified.” An administrative action was commenced by DPS which eventually concluded with the termination of Trooper Bentley.

On or about February 16, 2012, Erin Alberty, reporter for the Salt Lake Tribune, made a records request to DPS pursuant to the Utah Government Records Access and Management Act (“GRAMA”), seeking access to records related to the shooting. The records requested included: (1) the DPS Internal Affairs, Incident file/investigation; (2) the dashcam video; (3) the DPS Shooting Review Board Report; (4) copies of videos of IA interviews of Trooper Bentley; and (5) the Carbon County Sheriff’s Office report. The request was denied on March 1, 2012 by DPS finding that the records were protected pursuant to Utah Code § 63G-2-305(9)(a) and private pursuant to Utah Code § 63G-2-302(2)(d). Ms. Alberty appealed the denial of her GRAMA request to DPS Commissioner, Lance Davenport on March 28, 2012.

On July 3, 2012, Commissioner Davenport indicated that in his review of the records, he determined that some of the requested documents were public including DPS policies and procedures, training records, incident report, dispatch logs, dashcam videos and some diagrams and photographs. However, Commissioner Davenport also reaffirmed the previous denial of Ms. Alberty’s request for the IA investigation, Shooting Board report and interviews, and additionally concluded the records were properly classified as protected pursuant to Utah Code § 63G-2-305(17) and private pursuant to Utah Code § 63G-2-201(3)(b).

Ms. Alberty now appeals DPS’s denial of her GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on October 11, 2012, issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding are protected if properly classified. See, Utah Code § 63G-2-305(17).

3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private if properly classified by the governmental entity. See, Utah Code § 63G-2-302(2)(d).

4. Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity are normally public if properly classified and the disciplinary action has been completed and all time periods for administrative appeal have expired and the charges on which the disciplinary action was based were sustained. See, Utah Code § 63G-2-301(3)(o).

5. Records created or maintained for civil, criminal, or administrative enforcement or for disciplinary purposes are protected if properly classified and release could reasonably be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. See, Utah Code § 63G-2-305(9)(d).

6. At the hearing, Counsel for DPS argued that DPS Commissioner Davenport requested DPS through IA, to open an investigation into the shooting. Counsel claimed that the request was made in anticipation of an administrative/disciplinary action against Trooper Bentley. DPS further argued the IA investigation; findings of the Shooting Review Board and the interviews conducted, ultimately formed the basis for the administrative termination action and also contained the observations, mental impressions and opinions of employees engaged in the process. Therefore, DPS claims that these records constituted “work product” pursuant to § 63G-2-305(17) and as such, were properly classified as protected records and should not be released.

7. Ms. Alberty argued that she should be allowed access to the records responsive to her request because pursuant to Utah Code § 63G2-301(3)(o): (1) The records disclosed information relating to formal charges or disciplinary actions against Bentley, who was an employee of a governmental entity; (2) The disciplinary action against Bentley had been completed and all time periods for administrative appeal had expired because Bentley did not appeal his termination; and (3) The charges on which the disciplinary action were based were sustained because Bentley’s employment had been terminated as a result of the administrative action.

8. Ms. Alberty also argued that the records were not created in anticipation of litigation, but rather were created within the ordinary course of business. In every officer involved shooting, DPS as a matter of course opens an IA investigation which is forwarded to the DPS Shooting Review Board. The purpose of these investigations is to determine the facts in the cases and whether subsequent disciplinary action should take place and are public once the requirements of Utah Code § 63G-2-301(3)(o) are met.

9. DPS argued that release of the records requested by The Tribune would constitute a “clearly unwarranted” invasion of former UHP Trooper Bentley’s privacy pursuant to Utah Code § 63G-2-302(2)(d). Ms. Alberty countered asserting that because Bentley was a public employee and the action against him had been sustained, the records were public pursuant to GRAMA and thus, Bentley had no expectation of privacy.

10. DPS argued that release of the records requested would have a chilling effect on future IA investigations, would disclose IA investigatory techniques and would discourage witnesses from fully participating if there identity/name could become public. The Tribune argued that DPS could redact any identifying information from the records to protect the identity of witnesses. Additionally, Ms. Alberty argued that pursuant to Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26, 182 P.3d 372, DPS’s claim that release of the records she requested would interfere with future investigations does not merit a classification as protected under the provision of GRAMA that would prevent access to such records.

11. After hearing the arguments of the parties and having reviewed their submissions, and after having reviewed the records in camera, the Committee is not convinced that the records responsive to Alberty’s GRAMA request were created in anticipation of litigation or an administrative proceeding/action, nor did DPS present sufficient evidence that the records constituted “work product” as set forth in Utah Code § 63G-2-305(17). Instead, the Committee finds that they are investigative records and/or reports which were generated in the ordinary course of business and not in anticipation of litigation, or an administrative action. The Committee further finds the records relate to formal charges or disciplinary actions against Bentley, that the disciplinary action has been completed and has been sustained as evidenced by Bentley’s termination. Accordingly, pursuant to Utah Code § 63G-2-301(3)(o), the written records are public and should be released to the Salt Lake Tribune. However, the Committee, having reviewed the video recording(s) of the interview(s), is convinced and finds that the videos should not be released because they were created or maintained for civil, criminal, administrative or disciplinary investigative purposes, and if released, could reasonably be expected to disclose the identity of a source not generally known outside of government and in view of that are properly classified as protected pursuant to Utah Code § 63G-2-305(9)(d).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Erin Alberty, Reporter for the Salt Lake Tribune, is upheld as to the written records, and the Utah Department of Public Safety shall release all written records responsive to Petitioner’s request pursuant to Utah Code § 63G-2-301(3)(o). IT IS FURTHER ORDERED THAT pursuant to Utah Code § 63G-2-350(9)(d) the appeal is denied as to the video recordings.

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 § 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 § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) 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: (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 22nd day of October 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee