State Records Committee Appeal Decision 2017-37

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MOLLY MARCELLO, on behalf of THE TIMES-INDEPENDENT Petitioner, v.

MOAB CITY POLICE DEPARTMENT, Respondent.

DECISION AND ORDER

Case No. 17-37

By this appeal, Petitioner, Molly Marcello, on behalf of The Times-Independent, seeks access to records held by Respondent, Moab City Police Department.

FACTS

On or about July 3, 2017, Ms. Marcello made a records request, pursuant to the Government Records Access and Management Act (“GRAMA”). She requested, “[a]ny/all formal complaints filed with the Moab City Police Department or Moab City regarding” a former Moab police officer “during his tenure with the department.” On July 17, 2017, Respondent denied the request pursuant to Utah Code § 63G-2-302(2)(a), and on July 20, 2017, Ms. Marcello appealed the denial. Thereafter on July 25, 2017, Moab City affirmed the classification as private and denied the request.

Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties, reviewing the records in camera, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

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 § 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 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). Additionally, records containing data on individuals if disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d). However, 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 appeals have expired; and (2) The charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o).

3. The present appeal is somewhat similar to Lawrence v. Utah Dept. of Pub. Safety, Case No. 120907748, 3rd Judicial Dist. (Aug. 21, 2013). In Lawrence, Internal Affairs investigative records were requested 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.

4. The present appeal is also somewhat similar to Carlisle v. Utah County Sheriff’s Office, State Records Comm. Case No. 16-49 (Dec. 19, 2016), where the Committee found 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 been sustained.” Carlisle, ¶6.

5. After having considered the written and oral arguments of the parties and having reviewed the records in camera, the Committee finds that the requested records were properly classified as private pursuant to Utah Code § 63G-2-302(2)(a). The information did not relate to formal charges or disciplinary actions for the employee, and the alleged charges were not sustained allowing the records to be normally public pursuant to Utah Code § 63G-2-301(3)(o).

6. However, relying upon the reasoning in Lawrence and Carlisle, the Committee also finds that the public interest in having access to complaints against police officers, 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, Petitioner’s request for “[a]ny/all formal complaints filed with the Moab City Police Department or Moab City regarding” the named former Moab police officer “during his tenure with the department” should be granted.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Molly Marcello, on behalf of The Times-Independent, 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 23rd day of October 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee