Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 98-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

GEORGE E. BROWN, JR., Appellant, vs.

AMERICAN FORK CITY, Appellee.

DECISION AND ORDER

Case #98-08

Appellant George E. Brown, Jr. sought an order of the Committee requiring Appellee to supply records originally described as follows:

"[A]ll documents to include but not limited to, contact reports, supplemental police reports, witness statements, prosecutor notes, that pertain to, refer to, or relate to American Fork City v. George E. Brown, Jr., Criminal No. 972000503."

"[A]ll documents, to include, but not limited to, allegations of employee misconduct (AEM), contact reports, investigative reports, or other internal investigation documents that pertain to refer to, or relate to the internal investigation of Chief John Durrant or other members of the American Fork Police Department that provided documents to members of the news media that pertain to the criminal case of American Fork City v. George E. Brown, Jr., Criminal No. 971000503."

"[A]ll correspondence between agents or employees of American Fork City and outside people, entities and agencies, to include, but not limited to, the Utah Attorney General's Office, the Utah County Sheriff's Office, conflict prosecutors, Strong & Hanni, and other police agencies, that address, refer to, relate to, or in any other way pertain to George E. Brown, Jr., or any other form of the name such as George Brown, George E. Brown, etc.. I am the subject of all the documents."

Appellee supplied certain documents pursuant to Mr. Brown's requests, but a number of documents remained in issue, which Appellee declined to supply on various stated reasons. The documents placed before the Committee for its decision regarding disclosure were identified in the Affidavit of Richard M. Colburn, by stipulation of the parties, and the Committee's decision on each of those documents will be stated below, item by item.

Appellant requested that the Committee issue subpoenas duces tecum to six persons for their appearance with documents at the hearing. The Committee issued those subpoenas with regard to the six persons, identified as follows: Steven H. Morrissett, a Utah Assistant Attorney General; Pat Scott of the Office of the Utah State Archives; John Durrant, the Chief of Police of American Fork City; Phil Miller; Bekki Janson; and Edward L. Carter. It was left to Appellant to serve the subpoenas.

Mr. Morrissett appeared and testified. Ms. Scott appeared, but was not called to present documentary or testimonial evidence. Mr. Durrant appeared and submitted documentary evidence, but despite the request of the Committee that he remain, he left upon the advice of legal counsel without allowing himself to be called as a witness. Mr. Miller did not appear, his counsel having presented to the Committee written argument prior to the hearing to the effect that under law his testimony could not be compelled under the subpoena issued. Legal counsel for Bekki Janson submitted a request to quash the subpoena served on Janson, in part on the bases of undue burden placed upon her and lack of materiality. The Committee granted Janson's request to quash the subpoena served on Janson. Edward L. Carter was not served the subpoena issued with regard to him because he was out of the State, and Mr. Carter did not appear.

Appellant appeared in his own behalf, and presented documentation, witnesses and argument. Appellee was represented by Kevin R. Bennett, attorney for American Fork City, and presented documentation and argument. The State Records Committee, having reviewed the written materials submitted by the parties and having heard testimony, argument and public comment, now issues the following decision and order:

STATEMENT OF REASONS FOR DECISION

The appeal is granted in part and denied in part.

Each document in issue and the Committee's ruling on Appellant's request for its release are as follows:

A letter from City Attorney Hansen to County Attorney Kay Bryson, dated June 25, 1997. Request denied -- protected under U.C.A. 63-2-304(1).

A letter from City Attorney Hansen to Lt. Terry Fox, of the American Fork Police Department, dated June 25, 1997. Request denied -- protected under U.C.A. 63-2-304(18).

A letter from Assistant Attorney General Steven H. Morrissett to City Attorney Hansen, dated August 4, 1997. Request denied -- protected under U.C.A. 63-2-304(17).

A letter from City Attorney Hansen to then-Conflicts Counsel Rod Rivers, dated August 25, 1996. Request denied -- protected under U.C.A. 63-2-304(18).

A letter from then-mayor Jess Green to City Attorney Hansen, dated September 11, 1997. Request denied -- protected under U.C.A. 63-2-304(18).

A letter from City Attorney Hansen to then-mayor Green, dated September 12, 1997. Requested denied -- protected under U.C.A. 63-2-304(18).

Sample/draft summons and information forms. Request denied -- protected under U.C.A. 304(22).

A letter from then-Mayor Green to then-Conflicts Counsel Rod Rivers, dated September 10, 1997. Request denied -- protected under U.C.A. 63-2-304(18).

A letter from City Attorney Hansen to Assistant Attorney General Steve Morrissett, dated March 25, 1998. Request denied -- protected under U.C.A. 63-2-304(18).

An inter-office memorandum prepared by Conflicts Counsel Buhler regarding the case, dated January 22, 1998. Request granted -- public under U.C.A. 63-2-201(1) and not exempted from disclosure by any other provision of GRAMA.

Various personal notes prepared by Conflicts Counsel Buhler regarding the Brown matter. Request denied -- protected under U.C.A. 63-2-304(17).

Draft Diversion Agreement, Approval and Order ("temporary draft"). Request denied -- protected under U.C.A. 63-2-304(22).

ORDER

WHEREFORE, it is ordered the Appellant's request for access to the described records is granted in part and denied in part, as indicated above.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to District Court. The petition for review must be filed no later than thirty (30) days after the date of this Order. The petition for judicial review must be a complaint. The complaint and the appeals process and governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 and 63-2-502(7). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advice from an attorney.

Entered this 5th day of October, 1998.

BETSY L. ROSS, Acting Chair
State Records Committee