State Records Committee Appeal Decision 2016-49

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NATE CARLISLE on behalf of SALT LAKE TRIBUNE, Petitioner, v.

UTAH COUNTY SHERIFF’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 16-49

By this appeal, Petitioner, Nate Carlisle, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah County Sheriff’s Office (“County Sheriff’s Office”).

FACTS

On April 16, 2016, Mr. Carlisle made a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Carlisle requested from the County Sheriff’s Office: (1) Any records of discipline of a police officer that would disclose information relating to a formal charge or disciplinary action against the employee that were sustained: and (2) All records relating to an internal or administrative investigation of the police officer related to allegations of witness tampering, retaliation against a witness, or obstruction of justice. In response to the request, the County Sheriff’s Office released some documents, but also redacted portions of documents claiming that the information should be protected.

In a letter dated May 23, 2016, Mr. Carlisle filed an appeal with the Utah County Commission (“Commission”), requesting a review of the documents to determine if they should be released unredacted. Mr. Larry A. Ellertson, Chair of the Commission, stated in a letter dated September 6, 2016, that employee personnel records are classified as private records pursuant to Utah Code § 63G-2-302(2)(a), and that none of the exceptions to this general classification as outlined by GRAMA applied to the requested records.

Mr. Carlisle filed an appeal of the Commission’s decision to the State Records Committee (“Committee”). The Committee held a hearing on December 8, 2016, regarding the appeal. The Committee having reviewed the submitted written materials, hearing oral arguments from the parties, and reviewing the disputed records in camera, 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 private, controlled, or protected under §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).

2. Records concerning a current or former employee of a governmental entity that would disclose the individual’s home address, home telephone number, social security number, insurance coverage, marital status, or payroll deductions, are private records. Utah Code § 63G-2-302(1)(g). Records concerning a current or former government employee, including performance evaluations and personal status information such as race, religion, or disabilities, are private records if properly classified by a governmental entity, but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o). Utah Code § 63G-2-302(2)(a).

3. GRAMA provides that the Committee may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private, controlled, or protected “if the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). In order to consider the weighing of various interests under Utah Code § 63G-2-403(11), the Committee shall review the disputed records in camera. Utah Code § 63G-2-403(9)(a).

4. In Lawrence v. Utah Dept. of Pub. Safety, Case No. 120907748, 3rd Judicial Dist. (Aug, 21, 2013), Lawrence requested Internal Affairs investigative records regarding a trooper of the Utah Highway Patrol. The court held that despite the restrictions of Utah Code § 63G-2-302(2)(a), the records should be public, stating:

Investigative records addressing alleged violations of the public trust fall outside of [Utah Code § 63G-2-302(2)(a)] because they are not the same kind, class, character or nature as the specifically enumerated categories of sensitive personal information identified [under that statute]…

[T]here is no such unwarranted invasion of privacy in the circumstances presented here because the records will reveal whether public officials properly discharged their public responsibility to investigate and address allegation that law enforcement personnel violated a citizen’s constitutional rights…

[T]he public’s right to know the response of public officials charged with the responsibility of investigating alleged constitutional violations substantially exceeds any individual interests of those public officials or the interest of a Trooper charged with the responsibility protecting the safety and rights of the State’s citizens… [U]nrestricted public disclosure of the [Internal Affairs] investigative records will properly serve the public’s compelling interest.

5. After having considered the written and oral arguments of the parties and having reviewed the records in camera, the Committee finds that internal investigation records are not personnel records, and therefore cannot be classified as private based on Utah Code 63G-2-302(2)(a).

6. However, relying upon the reasoning in Lawrence, the Committee finds that the public interest in having access to investigative records of police officers alleging violations of the public trust, outweighs the interest favoring restriction of these records, even though the police officer has not received formal charges or disciplinary action or the charges have not been sustained. Because of the need for the public to have confidence in the actions of police officers “charged with the responsibility protecting the safety and rights of the State’s citizens,” unrestricted public disclosure of Internal Affairs investigative records “will properly serve the public’s compelling interest.” See, Lawrence. Accordingly, all records relating to an internal or administrative investigation of the named police officer related to allegations of witness tampering, retaliation against a witness, or obstruction of justice, are public records and shall be provided to Petitioner, subject to redactions of names of witnesses or victims considered to be a clearly unwarranted invasion of privacy pursuant to Utah Code § 63G-2-302(2)(d).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nate Carlisle, is GRANTED.

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). 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). 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). 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). 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), 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). 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).

Entered this 19th day of December 2016.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee