Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2012-22

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JEFFREY B. LAWRENCE, Petitioner, vs.

UTAH DEPARTMENT OF PUBLIC SAFETY, Respondent.

DECISION AND ORDER

Case No. 12-22

By this appeal, Petitioner, Jeffery B. Lawrence (“Lawrence”), seeks to appeal the denial of his request for records regarding a Department of Public Safety (“DPS”) investigation of his complaint filed against a Utah Highway Patrol trooper on September 17, 2011.

FACTS

On or about May 31, 2012, Mr. Lawrence submitted a Utah Government Records Access and Management Act (“GRAMA”) request to DPS seeking records: (1) related to his arrest on April 20, 2011; (2) records related to his compliant against the Utah Highway Patrol (“UHP”) trooper who arrested him and: (3) all disciplinary records regarding the UHP trooper. On June 22, 2012, DPS responded and indicated that it had located records responsive to his request with regard to his arrest, but denied his request for records regarding his complaint against the UHP trooper indicating that the records were protected pursuant to Utah Code § 63G-2-305(17) and private pursuant to Utah Code § 63G-2-302(2)(d).

On July 5, 2012, Mr. Lawrence appealed the denial to DPS Commissioner, Lance Davenport. Commissioner Davenport responded by letter dated July 11, 2012, indicating that Mr. Lawrence could have access to the records related to his arrest upon payment of the $55.00 fee. In the letter, Commissioner Davenport also affirmed the previous denial for records related to Mr. Lawrence’s complaint against the UHP trooper citing Utah Code § 63G-2-305(17).

Petitioner, Jeffrey Lawrence, now appeals DPS’s denial of his GRAMA request for records related to his complaint against the UHP trooper to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on October 11, 2012, now 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. 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 protected if properly classified. See Utah Code § 63G-2-305(17).

3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private if properly classified by the governmental entity. See Utah Code § 63G-2-302(2)(d).

4. Records concerning a current or former employee of a governmental entity including performance evaluations and personal status information, but not including public records under § 63G-2-301(2)(b) or § 63G-2-301(3)(o) are private if properly classified by the governmental entity. See Utah Code § 63G-2-302(2)(a).

5. Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity are normally public if properly classified and the disciplinary action has been completed and all time periods for administrative appeal have expired and the charges on which the disciplinary action was based were sustained. See Utah Code § 63G-2-301(3)(o).

6. At the hearing, Counsel for Mr. Lawrence argued that the records responsive to his request, were not created in anticipation of litigation, but were created within the ordinary course of business based upon the Utah Supreme Court’s decision in S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, 200 P.3d 643, and therefore, the requested records could not be classified as protected, “work product” pursuant to Utah Code § 63G-2-305(17).

7. Counsel for DPS argued that an Internal Affairs (“IA”) investigation of Mr. Lawrence’s complaint was conducted/completed as part of, or in anticipation of administrative/ disciplinary action against the Trooper. Therefore, the IA investigation and any findings contained the observations, mental impressions and opinions of employees engaged in the process constituted “work product” pursuant to § 63G-2-305(17) and as such, were properly classified as protected records which should not be released.

8. DPS also argued that release of the records requested by Mr. Lawrence would constitute a “clearly unwarranted” invasion of the Trooper’s privacy pursuant to Utah Code § 63G-2-302(2)(d). DPS further argued that no formal charges were filed and that no disciplinary action had been taken or had been sustained against the Trooper. Therefore, records relating to Mr. Lawrence’s IA complaint against the Trooper were properly classified as protected and should not be released pursuant to Utah Code § 63G-2-302(2)(a).

9. Mr. Lawrence countered asserting that no specific exemption had been granted to IA records/reports and as such pursuant to Utah Code § 63G-2-201, he was entitled to receive the records. Further, since the Trooper was a public employee with certain authority granted to detain/deprive an individual of personal liberty, there was a public interest in knowing how the IA investigation of Mr. Lawrence’s complaint was handled.

10. After hearing the arguments of the parties, and having reviewed their submissions, the Committee is persuaded the records related to Mr. Lawrence’s IA complaint against UHP trooper are records concerning a current or former employee of a governmental entity including performance evaluations and personal status information and are not public under 63G-2-301(3)(o) as the charges were not sustained. The Committee therefore finds the records are properly classified as private as set forth in Utah Code § 63G-2-302(2)(a) and should not be released.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jeffery Lawrence is DENIED pursuant to Utah Code § 63G-2-302(2)(a).

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 § 63G-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.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) a notice of intent to appeal. If the government entity 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.

Entered this 22nd day of October 2012.

BY THE STATE RECORDS COMMITTEE

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BETSY ROSS, Chairperson
State Records Committee