State Records Committee Appeal Decision 2021-25

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SAM STECKLOW on behalf of the SALT LAKE TRIBUNE, Petitioner, v.

CLINTON CITY, Respondent.

DECISION AND ORDER

Case No. 21-25

By this appeal, Petitioner, Sam Stecklow, journalist with the Salt Lake Tribune, seeks access to records held by Respondent, Clinton City.

FACTS

On January 26, 2021, Mr. Stecklow made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Stecklow requested from Respondent records regarding two current or former employees of the Clinton Police Department (“CPD”). On January 27, 2021, CPD’s records clerk denied Mr. Stecklow’s records request in full.

In a letter dated January 28, 2021, Mr. Stecklow filed an appeal with Respondent’s City Manager/Recorder, stating that the records should be released “given the extremely high, legitimate public interest in the use of deadly force by law enforcement.” On February 9, 2021, Dennis W. Cluff, Clinton City Manager, responded stating that many of the requested records did not exist or were held by another governmental entity. Some records were provided by Respondent, while others were not provided because they were classified as private records.

In a letter dated February 17, 2021, Mr. Stecklow appealed Respondent's GRAMA request denial to the State Records Committee ("Committee"). On April 29, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the parties' arguments and the evidence presented, the Committee 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 concerning a current or former employee of a governmental entity including performance evaluations and personal status information, are generally private 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). Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental 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).

3. Records created or maintained for civil, criminal, or administrative enforcement purposes are protected records if properly classified by a governmental entity and 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. Utah Code § 63G-2-305(10)(d).

4. Records other than personnel evaluations that contain a personal recommendation concerning an individual, are protected records if properly classified by a governmental entity if disclosure would constitute a clearly unwarranted invasion of personal privacy or disclosure is not in the public interest. Utah Code § 63G-2-305(25).

5. The requested records involve records related to four shooting incidents involving the CPD since 2010. Each of these shootings resulted in an incident Internal Investigation and Review Board review which resulted in a finding that no action should be taken against the CPD officers. The Clinton City Review Board (“Review Board”) in a use of force case consists of five members with four members from the CPD and an officer from an outside agency. Respondent’s internal investigation is used by the Review Board to allow board members to make their determination as to whether CPD policy was followed. The Internal Investigation report and the Review Board findings were classified by Respondent to be private records as performance evaluations pursuant to Utah Code § 63G-2-302(2)(a).

6. In Lawrence v. Utah Dept. of Pub. Safety, Utah 3rd Dist. Case No. 120907748 (Aug. 21, 2013), the district court found that:
[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.

7. After having reviewed the records in camera and considering the evidence and arguments presented by the parties, the Committee finds that Internal Investigation report and the Review Board findings for the four shooting incidents involving the CPD since 2010 should be released. The Committee finds that Respondent properly classified the requested records as private records pursuant to Utah Code § 63G-2-302(2)(a). Upon consideration and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, the Committee finds that the public interest favoring access is greater than the interest favoring restriction of access. See, Utah Code § 63G-2-403(11)(b). The Committee follows the district court’s decision in Lawrence holding that the public’s right to know “substantially exceeds” individual interests of public officials or police officers because:

[T]he records reveal whether public officials properly discharged their public responsibility to investigate and address allegations that law enforcement personnel violated a citizen’s constitutional rights. [Lawrence, at pg. 3.]

The Committee also finds that prior to release of the records, Respondent may redact any names of witnesses not known outside of government and the votes of individual members of the Review Board pursuant to Utah Code §§ 63G-2-305(10)(d) & -305(25).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sam Stecklow, is hereby 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 a parties’ 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. Utah Code § 63G-2-403(15)(d)(i)(B). 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 10 day of May 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee