State Records Committee Appeal Decision 2022-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NICKOLAS PARKER, Petitioner, v.

PRICE CITY POLICE DEPT., Respondent.

DECISION AND ORDER

Case No. 22-03

By this appeal, Petitioner, Nickolas Parker is requesting access to an internal affairs investigation record.

FACTS

On July 2, 2021, Mr. Parker made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Parker requested a copy of all annual performance evaluations, job description, classification, pay range, promotions, educational accomplishments, rewards/recognitions, department development opportunities, emails or another article that has his name on or in it and a copy of any disciplinary action including all internal affairs investigations. On July 12, 2021, Respondent notified Mr. Parker that they were providing all the requested records with the exception of the internal affairs investigation report. The reason given for the partial denial was that the report was protected pursuant to Utah Code § 63G-2-305(10)(d) because releasing the report could reasonably be expected to disclose the identity of a source who is not generally known outside of government.

Mr. Parker filed an appeal with the State Records Committee (“Committee”). On December 17, 2021, the Committee held a hearing during which the parties were allowed to participate. However, in order to allow the Committee members to have sufficient time to properly review the records in camera including an audio recording that had not yet been provided to the Committee by Respondent, the Committee voted unanimously to continue the hearing until the next available hearing date. See, Parker v. Price City Police Dept., State Records Committee Order No. 21-61 (Dec. 29, 2021). On January 20, 2022 after having considered the written materials, oral testimony, and oral arguments of the parties and after reviewing the audio recording in camera, 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 created or maintained for civil, criminal or administrative enforcement purposes, or for discipline, licensing, certification or registration purposes, are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to: (1) Interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration proceedings; (2) Interfere with audits, disciplinary, or enforcement proceedings; (3) Create a danger of depriving a person of a right to a fair trial or impartial hearing; (4) Disclose the identity of a source who is not 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; or (5) Disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts. Utah Code § 63G-2-305(10).

3. Records of a governmental entity or political subdivision regarding security measures designed for protection of persons or property, public, or private, are not subject to GRAMA. Utah Code § 63G-2-106.

4. The Committee finds the arguments made by Respondent regarding the need to keep information within the records non-public and not subject to disclosure to others including Mr. Parker to be persuasive. The Committee understands that with a small community like Price and a small police department like Respondent, release of records with only redactions of the names of the individuals may not in fact be sufficient to keep the identities of those individuals anonymous. Accordingly, the Committee agrees that release of these records must include sufficient redactions that will protect the information within the records as outlined in Utah Code § 63G-2-305(10). Accordingly, the Committee finds the following:

• Pages 1-12 are public records.
• Pages 13-26 were classified correctly, but should be redacted in order to protect sources within the record including names, pronouns, and titles pursuant to Utah Code § 63G-2-305(10).
• Pages 27-43 are public records.
• Pages 44-62 should be released as public records but with appropriate redactions to protect the names of individuals pursuant to Utah Code § 63G-2-305(10)(c).
• Pages 63-64 are public records.
• Pages 65-68 are records not subject to GRAMA pursuant to Utah Code § 63G-2-106 because they involve security measures for Respondent.
• Pages 69-83 should be released as public records but with appropriate redactions to protect the names of individuals pursuant to Utah Code § 63G-2-305(10)(c).
• Pages 84 & 85 should be released to Mr. Parker pursuant to Utah Code § 63G-2-202(1)(a)(i) because he is the subject of the record.
• Pages 86-92 are public records.
• The audio recording should be released to Mr. Parker pursuant to Utah Code § 63G-2-202(1)(a)(i) because he is the subject of the record.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nickolas Parker, is GRANTED in part and DENIED in part as outlined above.

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 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 31st day of January 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee