State Records Committee Appeal Decision 2022-31

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ADAM HERBETS, Petitioner, v.

FARMINGTON CITY, Respondent.

DECISION AND ORDER

Case No. 22-31

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

FACTS

On January 19, 2022, Mr. Herbets made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Respondent. Mr. Herbets requested the following regarding a Farmington City employee: (1) Copies of all complaints filed against the employee in 2021 and 2022; (2) Copies of all attached records submitted alongside the complaints; (3) Copies of all files generated from a completed investigation; (4) Copies of all reports documenting the use of force; and (5) Copies of all electronic communication, including but not limited to emails and text messages sent by the employee and Farmington City Manager in 2022 and any responses to those sent messages. Respondent partially granted and denied the requests on February 3 and 17, 2022, stating “the records are classified as private and protected because they relate to unsustained charges against an employee or former employee of the City and privileged attorney-client communication or attorney work product.” Respondent sent a zip file to Mr. Herbets with the records that were granted under GRAMA.

Mr. Herbets filed an appeal with the State Records Committee (“Committee”). On July 21, 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. The Committee viewed the records 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 a “record is 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 are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a). However, records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee, are public records 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 are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). 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 also protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).

4. After having reviewed the records in camera, the Committee has determined that the records were properly classified as non-public records pursuant to §§ 63G-2-302(2)(a), -305(17), and -305(18). After having considered the weighing provision found in Utah Code § 63G-2-403(11)(b), the Committee also finds that the interest favoring restriction of access outweighs the public interest favoring access to the records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Adam Herbets, is hereby DENIED.

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 1day of August 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee