State Records Committee Appeal Decision 2022-18

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ADAM HERBETS, Petitioner, v.

HEBER CITY POLICE, Respondent.

DECISION AND ORDER

Case No. 22-18

By this appeal, Petitioner, Adam Herbets, an investigative reporter with Fox 13 News, seeks access to records allegedly held by Respondent, Heber City Police.

FACTS

On February 1, 2022, Mr. Herbets made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Herbets requested copies of all settlement agreements, dispositions of claim, and/or nondisclosure agreements involving Heber City from January 1, 2021, through present day. On February 3, 2022, Respondent denied the request saying that the records requested are classified as private and/or protected in accordance with 63G-2-205. On February 4, 2022, Mr. Herbets appealed to Heber City, but that appeal was denied for the same reasons.

Mr. Herbets filed an appeal with the State Records Committee (“Committee”). On May 19, 2022, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties including reviewing the responsive settlement agreement record in camera. After having carefully considered all evidence presented to the Committee, 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. Settlement agreements are governed by the rules applied to general contract actions. Pioneer Builders v. K D A Corp., 2018 UT App 206, ¶ 10, 437 P.3d 539, 541-542. Contracts entered into by a governmental entity are normally public, but to the extent that a record is expressly exempt from disclosure, access may be restricted under Utah Code § 63G-2-305. Utah Code § 63G-2-301(3)(d).

3. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records reasonably could be expected to disclose the identity of the 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, are protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(10)(d).

4. Respondent argued that the settlement agreement should not be disclosed because it involved compelled testimony associated with internal investigations, discipline and enforcement policies. Counsel further argued that there is an ongoing investigation with the Utah Peace Officers Standards and Training (“POST”) related and involving one of the parties to the agreement, and that disclosure of the settlement agreement could reasonably be expected to interfere with that investigation.

5. After having reviewed the settlement agreement in camera, the Committee agrees with Respondent’s arguments and determined that the individuals named within the agreement should remain non-public pursuant to Utah Code § 63G-2-305(10)(d). Although government contracts are normally public pursuant to Utah Code § 63G-2-301(3)(d), because of the roles of the individuals and the current POST investigation, the Committee finds that redactions of these names would be proper prior to release of the settlement agreement. See also, Utah Code § 63G-2-308.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, 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 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 31 day of May 2022

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee