State Records Committee Appeal Decision 2021-26

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

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

WASHINGTON COUNTY SHERIFF’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 21-26

By this appeal, Petitioner, Sam Stecklow, journalist with the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Washington County Sheriff’s Office.

FACTS

In a letter dated December 29, 2020, Mr. Stecklow made a records request pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Stecklow requested from Respondent records regarding four specified officer critical incidents involving Washington County Sheriff Deputies during the past thirteen years. Mr. Stecklow stated that the records were necessary for a story in the Salt Lake Tribune.
On December 30, 2020, Respondent’s records officer stated that no records were being provided because either Respondent did not possess the records or the records were not classified public records pursuant to Utah Code § 63G-2-301(3)(o)(ii). After an appeal was filed, Cory Pulsipher, Washington County Sherriff, affirmed the denial of Mr. Stecklow’s records request finding that Respondent’s internal affair reports should be classified as private records pursuant to Utah Code § 63G-2-302(2)(a).

In a letter dated January 21, 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 that contain medical, psychiatric, or psychological data about an individual, are controlled records if properly classified by a governmental entity and the governmental entity reasonably believes that: (1) Releasing the information in the record to the subject of the record would be detrimental to the subject’s mental health or to the safety of any individual; or (2) Releasing the information would constitute a violation of normal professional practice and medical ethics. Utah Code § 63G-2-304.

4. 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).

5. The requested records are related to four incidents involving Sheriff Deputies for Respondent since 2008. Each of these shootings resulted in five Internal Affair records created and prepared by Respondent to evaluate the response of each Sheriff Deputy involved in the incidents. These records 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 requested records of the four shooting incidents since 2008 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: (1) Information regarding a deputy’s abilities pursuant to Utah Code § 63G-2-304 (Bates stamped pgs. 39 & 40); (2) Names of witnesses not widely known pursuant to Utah Code § 63G-2-305(10)(d); and (3) Any personal information pursuant to Utah Code § 63G-2-302(2)(a) including a signature occurring on Bates stamped page 22.

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