State Records Committee Appeal Decision 2023-32

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ERIC PETERSON (Utah Investigative Journalism Project), Petitioner, vs

SALT LAKE CITY POLICE DEPARTMENT, Respondent,

DECISION AND ORDER

Case No. 23-32

By this appeal Eric Peterson (“Petitioner”), requests records allegedly held by Salt Lake City Police Department (SLCPD) (“Respondent”).

FACTS

On June 9, 2021, the body of Joseph Salas was found in the Jordan River near North Temple. Petitioner, an investigative journalist with the Utah Investigative Journalism Project, has reported on and followed the investigation since that time. As of late, Petitioner became concerned that the Respondent had not been actively investigating the case. Consequently, on March 20, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”) requesting the “full unredacted report into the homicide investigation of Joseph Salas found in the Jordan River near North Temple on June 9, 2021.” But that request wasn’t responded to within 10 business days, which, pursuant to Utah Code §63G-2-204(9), constituted a formal denial of the request.
Petitioner appealed the de facto denial to Respondent’s Chief Administrative Officer (“CAO”) on April 12, 2023. Rachel Otto, the CAO, affirmed the denial of Mr. Peterson’s request and explained that “the City does not believe that the public interest in this investigation outweighs the interest in preserving the integrity of the investigation and the rights of the individuals involved. Accordingly, the records of the homicide investigation are ‘protected’ pursuant to Utah Code §63G-2-305(10)(a).” However, also within her response, Ms. Otto informed Petitioner that one of the city attorneys reached out to the Respondent to inquire the status of the Salas investigation and was assured that detectives were still actively investigating the case.

Notwithstanding that assurance, Petitioner has now appealed to the State Records Committee (“Committee”) challenging the CAO’s decision. On July 20, 2023, 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. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

ISSUES FOR REVIEW

Whether the full investigation report into Mr. Salas’s death is properly classified and if by a preponderance of the evidence the public interest favoring access is equal to or greater than the interest favoring restriction of access.

STATEMENT OF REASONS FOR DECISION

The GRAMA states that a person “has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours . . . .” Utah Code § 63G-2-201(1)(a). However, a record that is private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5).

1. The Requested Records are Properly Classified as Protected under the GRAMA.
The record at issue here is the investigation file pertaining to Mr. Salas’s homicide. The GRAMA classifies criminal investigation records as protected as long as they meet one of five possible conditions. The Respondent’s CAO classified the investigation file as protected under the condition outlined in Subsection 305(10)(a), which states that the following records are protected if classified correctly:

(10) records created or maintained for civil, criminal, or administrative purposes . . . if release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes.

Utah Code § 63G-2-305(10)(a) (emphasis added).

In her denial letter, the CAO explained that the Respondent classified the investigation file as protected because it “does not believe that the public interest in this investigation outweighs the interest in preserving the integrity of the investigation and rights of the individuals involved.”

At the hearing, Captain Alma Sweeny, who oversees the Investigations Division for the Respondent, testified before the Committee that not only was the investigation ongoing, but that releasing the records could compromise investigators’ efforts. For example, Captain Sweeny explained that when a file containing details of an active investigation is released, those details can become known to the public. At that point, the public knows information about the case, the crime scene, the victim, or any other matter that only the police should know. When this happens, interrogating suspects and questioning persons of interest becomes jeopardized because it is difficult to ascertain whether the individual knew the details of the crime merely because those details are now public knowledge or because the individual has firsthand knowledge.

We believe this is precisely what the legislature had in mind when it codified Subsection 305(10)(a). Because the investigation file concerns an active ongoing criminal investigation, we find that releasing the file could reasonably be expected to interfere with the efforts the Respondent is undertaking for enforcement purposes. Therefore, we find that the requested investigation file into Mr. Salas’s homicide is properly classified as protected under Utah Code § 63G-2-305(10)(a).

2. The Evidence Does Not Support Disclosing the Releasing Records.

Normally, if a record is properly classified as protected under Section 305, this Committee has the authority to weigh the “various interests and public policies pertinent to the classification and disclosure or nondisclosure” and then order the disclosure of the records “if the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). But when a record is properly classified as protected under Subsection 63G-2-305(10), the Code requires us to forego that traditional weighing analysis and instead look to the actual evidence presented. Utah Code § 63G-2-403(11)(b) (pointing to § 63G-2-406(1)). Subsection 406(1) states that if the petitioner can establish “by a preponderance of the evidence[ ] that the public interest favoring access is equal to or greater than the interest favoring restriction of access,” then we have the discretion to order the records be disclosed. Utah Code § 63G-2-406(1). That is, when analyzing a record protected under Subsection 305(10), we no longer look at the “various interests and public policies pertinent to the classification and disclosure or nondisclosure”; rather, we are to look only at the actual evidence showing that the public interest favoring disclosure outweighs that of restriction. Compare § 63G-2-403(11)(b) with Utah Code § 63G-2-406(1).

Here, Petitioner relies only on policy arguments rather than evidence that the public interest outweighs disclosure. As noted above, weighing public policies favoring disclosure is not permitted when analyzing disclosure under Subsection 305(10) protection. But even if it were, as much as we might agree on the policies that the family of a homicide victim should be updated on the status of an investigation, or that police should investigate the homicides of homeless individuals with as much fervor as society’s elites, we don’t find those policies compelling enough to disclose the records. As Captain Sweeny testified and the Committee discussed, there may be viable law enforcement strategies at hand in deliberately not updating the family.

Nonetheless, it is Petitioner’s burden under Section 406(1) to show by a preponderance of the evidence that the public interest favoring disclosure outweighs the interest favoring restriction. In this case, Petitioner provided no evidence other than policy arguments. Consequently, the burden has not been met and since the statute bars us from considering disclosure until such evidence is presented, we must affirm the CAO’s decision and deny the appeal.

ORDER

THEREFORE, Petitioner’s appeal is hereby DENIED. The investigation file for Joseph Salas is properly classified as protected under Utah Code § 63G-2-305(10) and there is no evidence supporting disclosing the file.

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 1 day of August 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee