State Records Committee Appeal Decision 2021-28

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SAM STECKLOW, Petitioner, v.

WEST JORDAN POLICE DEPARTMENT, Respondent.

DECISION AND ORDER

Case No. 21-28

By this appeal, Petitioner, Sam Stecklow, a journalist with the Salt Lake Tribune, seeks access to records held by Respondent, the West Jordan Police Department.

FACTS

On January 7, 2021, Mr. Stecklow filed a GRAMA request with West Jordan Police Department “for records related to eleven officer involved shootings.” Respondent released some records but did not release any “internal affairs or use of force report[s] and the final disposition from any such internal review”. In a letter to the Utah State Records Committee (“Committee”) dated April 2, 2021, Mr. Stecklow stated that Respondent “later asserted that it did not have internal affairs investigations into its shootings, save for one case, in which the city said it had compelled Garrity statements.” Respondent also denied releasing records “regarding ‘any discipline imposed on any officers’ based on their involvement in the officer involved shootings”.

On February 4, 2021, Mr. Stecklow filed an appeal with West Jordan’s Chief Administrative Officer, Korban Lee. In discussions between Mr. Lee and Mr. Stecklow, the appeal was amended to request only the Garrity statements of two police officers regarding an officer-involved shooting which took place on May 28, 2018. On March 4, 2021, Mr. Lee denied the appeal.

On April 2, 2021, Mr. Stecklow appealed Mr. Lee’s denial to the Committee. On April 29, 2021, the Committee held an electronic hearing during which the parties presented their arguments. After carefully considering the arguments from all parties, 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. A “Garrity” warning assures officers that their statements given in a disciplinary interview will not be used against them in a subsequent criminal prosecution. Macfarlane v. Career Serv. Review Office, 2019 UT App 133, ¶14, 450 P.3d 87, 92, following Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616 (1967). An officer who refuses to respond or fails to respond truthfully to questions after receiving a Garrity warning is subject to suspension or revocation of his or her POST certification. Macfarlane, ¶14, 450 P.3d at 92, following Utah Code § 53-6-211(1)(e) (2015). Under POST guidelines, if an officer is untruthful in an interview after receiving a Garrity warning, the officer’s certification may be revoked. Id.

3. 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).

4. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).

5. Records created or maintained for civil, criminal, administrative, or discipline purposes, are protected records if properly classified by the governmental entity and if release of the records reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings. Utah Code § 63G-2-305(10)(b).

6. Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).

7. 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. [Lawrence, at pg. 3.] The court further stated that “the 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.” Id.

8. In the present case, counsel for Respondent argued that the Garrity statements were properly classified as private records pursuant to Utah Code §§ 63G-2-302(2)(a) & -302(2)(d), and as protected records pursuant to Utah Code §§ 63G-2-305(10)(b) & -308(18).

9. After having reviewed the records in camera and considering the evidence and arguments presented by the parties, the Committee finds that the requested records should be classified as public records. The Garrity statements by the officers were made through the conduct of official business, and therefore should not be considered private personnel records pursuant to Utah Code § 63G-2-302(2)(a) or as attorney work product pursuant to Utah Code § 63G-2-302(18) (records created in the ordinary course of business used in litigation does not render them exempt under GRAMA. See, S. Utah Wilderness Alliance v. Automated Geographic Ctr., 2008 UT 8, ¶26, 200 P.3d 643, 652-653). Considering the penalties for officers refusing to respond truthfully to questions after receiving a Garrity warning, the Committee is unconvinced that disclosure of these records reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings pursuant to Utah Code § 63G-2-305(10)(b).

10. Although an investigation could by its nature be expected to invade privacy, “GRAMA’s private and protected classification of records that ‘constitute[] a clearly unwarranted invasion of personal privacy’ does not sanction denying access to a record merely because it invades personal privacy.” Deseret News Pub. Co. v. Salt Lake Cty.¸182 P.3d 372, 380 (2008 Utah) ¶30. To qualify for nonpublic classification, a record must not only invade personal privacy, it must do so in a “clearly unwarranted” manner. Id. Simply because officers are required to participate in Garrity interviews, their privacy interests do not rise to the level of a “clearly unwarranted invasion” of personal privacy because they are public officials with public responsibilities subject to public oversight.

11. Even if weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, based upon the district court decision in Lawrence, the records would be made public because the public’s right to know “substantially exceeds” individual interests of public officials or police officers. Accordingly, the Committee finds that Respondent’s classification of the officers’ Garrity statements as non-public to be incorrect and find that they should be classified as public records pursuant to SUWA, Deseret News, Lawrence, and Utah Code § 63G-2-201(2).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Sam Stecklow, is hereby 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 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 10th day of May 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH WILLIAMS
Chair, State Records Committee