State Records Committee Appeal Decision 2016-51

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DAVID LARSEN, Petitioner, v.

HEBER CITY POLICE DEPARTMENT. Respondent.

DECISION AND ORDER

Case No. 16-51

By this appeal, Petitioner, David Larsen, seeks access to records allegedly held by Respondent, the Heber City Police Department.

FACTS

Mr. Larsen filed a records request via email pursuant to the Government Records Access and Management Act (“GRAMA”) to the Heber City Police Department (“Department”). Mr. Larsen requested the release of Department personnel records concerning a named police officer. When the Department did not provide all requested records, Mr. Larsen filed an appeal with the Mayor of Heber City.

The Heber City manager informed Mr. Larsen via email that the Mayor had failed to timely respond to his appeal, and according to Heber City Code § 4.16.030, failure to respond within five days was considered a denial of his appeal. Mr. Larsen filed an appeal with the State Records Committee on October 28, 2016. On December 8, 2016, at a hearing before the Committee the parties presented their legal arguments. After considering all written materials and the arguments by the parties, the Committee 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 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. Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee are normally public if: (1) The disciplinary action has been completed and all time periods for administrative appeal have expired and; (2) The charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o).

4. Counsel for the Department argued that all records within a police officer’s personnel file should remain private, including a five-year-old letter of reprimand, which counsel stated was an internal corrective action (personal evaluation), that does not rise to the level of formal charges or disciplinary actions, as described in Utah Code § 63G-2-301(3)(o). Counsel also argued that the letter of reprimand was protected under Utah Code § 63G-2-305(25).

5. After having reviewed the arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that pursuant to Utah Code § 63G-2-301(3)(o), records concerning formal charges or disciplinary actions against the officer includes the letter of reprimand, and should be disclosed as a public record. However, other information in the officer’s personnel file was properly classified as a private record pursuant to Utah Code § 63G-2-302(2)(a), and should not be disclosed.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, David Larsen, is GRANTED in part, and DENIED in part.

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