Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 05-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SALT LAKE CITY CORPORATION,Petitioner/Appellant,
vs.
SALT LAKE CITY MAYOR'S RECORDS APPEALS BOARD,Respondent/Appellee.

DECISION AND ORDER
Case No. 05-02
Salt Lake City Corporation (the "City") appeals the decision of the Salt Lake City Mayor's Records Appeals Board (the "Board") granting access to certain records requested by Neal K. Ostler. The Board submitted the case for decision on the basis of its written order dated November 19, 2004. Senior City Attorney Morris Haggerty appeared on behalf of Salt Lake City Corporation. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on January 13, 2005, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act ("GRAMA") specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). GRAMA further provides that "[t]he disclosure of records to which access is governed or limited pursuant to court rule . . . is governed by the specific provisions of that . . . . rule . . . ." Utah Code Ann. 63-2-201(6); see also Utah Code Ann. 63-2-201(3)(b) (addressing records to which access is "restricted" pursuant to court rule).

2. Mr. Ostler requested records from the Salt Lake City Police Department, the Department of Public Services and other city departments. The City challenges the Board's interpretation of Utah Code Ann. 63-2-201(6)(a). The Board held that section 201(6)(a) "does not mandate that public documents may only be obtained through formal discovery if an action is pending between the governmental entity and the person requesting the records." Therefore, the Board concluded, "the City shall disclose to Mr. Ostler, and Mr. Ostler is entitled to inspect and have copies made of, his personnel file, including all notes, comments, recommendations or references."

3. There is no dispute that Mr. Ostler currently has lawsuits pending against Salt Lake City. See Ostler vs. Salt Lake City Corporation, et al., Case No. 2:04-CV-627TS (D. Utah) (filed on August 16, 2004); and Ostler vs. Salt Lake City Corporation, et al., Case No. 040904240 (Third Judicial District Court) (filed on or about March 1, 2004). In light of this fact, the City took the position that access to the requested records was subject to the Rules of Civil Procedure, including the provisions of Rule 26 concerning discovery.

4. In Ostler v. State of Utah, State Records Comm. Case No. 05-01, we received evidence indicating that federal district court Magistrate Judge David Nuffer recently denied Plaintiff's Motion to Stay Pending Limited Discovery under Rule 56(f). Mr. Ostler did not contest the fact that his motion concerns the same subject matter as his government records requests. See Order Denying Plaintiff's Motion to Stay, Case No. 2:04-CV-627TS (D. Utah, Dec. 17, 2004). Thus, the posture of at least one of the court cases referenced above is that Mr. Ostler has been ordered by the Court to respond to Defendants' Motion to Dismiss before any discovery may take place.

5. As we held in Steed v. Duchesne County, Case No. 04-17, "the right to access public government records is not lost, and may not be impaired, when a citizen files a lawsuit against the government entity that maintains those records." GRAMA recognizes, however, that a court may impose limitations on access to records during the course of litigation. Thus, "where a court order is in place regarding the specific documents requested[,] the terms of that court order shall govern disclosure." Id. (citing Utah Code Ann. 63-2-202(7) and -207). We interpret the referenced order to prohibit the release of the records sought by Mr. Ostler at this time. See Fed. R. Civ. P. 26(d).

ORDER

THEREFORE, IT IS ORDERED THAT the City's appeal is granted in part and denied in part as set forth above. To the extent that the Board's decision grants Mr. Ostler access to records denied by the federal district court in Ostler v. Salt Lake City Corp. et al., Case No. 2:04-CV-627 (D. Utah 2004), that determination is reversed.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the 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 are governed by the Utah Rules of Civil Procedure and Utah Code Ann. 63-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

Entered this 19th day of January, 2005.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chairperson
State Records Committee