State Records Committee Decision 2015-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SWEN HEIMBERG, Petitioner, v.

PEACE OFFICER STANDARDS & TRAINING. Respondent.

DECISION AND ORDER

Case No. 15-15

By this appeal, Petitioner, Swen Heimberg, seeks access to records allegedly held by Respondent, Peace Officer Standards & Training ("POST").

FACTS

On or about July 11, 2014, Mr. Heimberg made a records request to Peace Officer Standards & Training ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Heimberg requested all investigative files since 2010 that included an allegation under Utah Code § 53-6-211(1)(d), which is conduct that is a state or federal criminal offence, excluding minor traffic offenses. On or about July 31, 2014, Respondent provided a copy of the investigative file relating to the current administrative action pending against Mr. Heimberg, but denied him access to the other investigative files.

Mr. Heimberg appealed Respondent’s response, and on March 2, 2015, Lt. Higgs made available to Mr. Heiberg the following documents: (1) Notices of Agency Action since 2010 dealing with allegations of unauthorized access of BCI records, (2) Default orders or hearing waivers associated with those cases, and (3) Any POST Council audio recording and minutes not posted on POST’s website. Mr. Heimberg was also provided the synopsis and findings sections of nine investigative files with allegations of unauthorized access of BCI records.
On April 1, 2015, Mr. Heimberg filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, on May 14, 2015, now 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 are properly classified as protected if release of the records “reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes.” Utah Code § 63G-2-305(10)(a). Records that “reasonably could 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” are protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(10)(d). Records containing data on individuals the disclosure of which constitutes a "clearly unwarranted invasion of personal privacy" are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).

3. Counsel for Respondent argued that release of information from these investigative files would reasonably interfere with future investigations. Respondent also claimed that within the files is private and sensitive information such as driver's license information, criminal history, background information, marriage status, domestic matters, etc. Additionally, Respondent stated that since some of the allegations made that are contained in the investigation records are unfounded, there should be a greater expectation of privacy for the accused regarding this information pursuant to Utah Code § 63G-2-302(2)(d).

4. After reviewing the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Respondent’s denial of Mr. Heimberg records request, was appropriate, and that the records have been properly classified. (See, Utah Code §§ 63G-2-305(10)(a) and -302(2)(d)). Additionally, redaction of the requested records would not be available in the audio and video recordings, and redaction would not be sufficient to protect the identification of bodies that are part of the reports.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Swen Heimberg, is DENIED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14) (2015). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a) (2015). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2) (2015). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6) (2015). 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(15)(c) (2015), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i) (2015). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii) (2015).
Entered this 26th day of May, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee