State Records Committee Appeal Decision 24-49

BEFORE THE UTAH STATE RECORDS COMMITTEE

EMILY ANDERSON STERN, on behalf of THE SALT LAKE TRIBUNE, Petitioner, vs.

OFFICE OF THE GOVERNOR, STATE OF UTAH, Respondent.
    
DECISION AND ORDER

Case No. 24-49

ISSUES FOR REVIEW

The parties, through counsel, have moved the State Records Committee for entry of an order requiring the release of certain redacted records. 

BACKGROUND

A brief background of this dispute is as follows. In November 2023, The Salt Lake Tribune, through its reporter Emily Anderson Stern (collectively, “The Tribune” or “Petitioner”) submitted a GRAMA request to the Utah Governor’s Office (“Governor’s Office” or “Respondent”) explaining that the “request [was] being submitted following a similar request and subsequent appeal being denied by the Department of Government Operations because ‘the governor’s office claims ownership of these records as product created for the office by DHRM’” and seeking “all draft and/or final versions of investigative reports pertaining to Maj. Gen. Michael Turley, as well as source documents or notes included in such investigative reports/files, and documentation of any remedial or other actions taken following the foregoing,” and “a log of all interviews conducted during the investigation, and any recordings or notes taken during such interviews.” This records request seeks information about Maj. Gen. Michael J. Turley (“Turley”), the former Adjutant General of the Utah National Guard.

On December 6, 2023, the Governor’s Office sent The Tribune a letter denying the request in full and declaring that, “We understand your request to be for records regarding state investigations you requested from DHRM to which access was denied on appeal. All records responsive to [the] request have been classified as private, protected, or non-records.” On December 28, The Tribune appealed that Initial Denial to the Chief Administrative Officer of the Governor’s Office, who responded on January 29, 2024, affirming the denial. On February 28, The Tribune appealed this denial to the SRC by submitting a Notice of GRAMA Appeal. The parties have therefore met the required procedural steps for a State Records Committee Appeal.
On June 12, in lieu of the Governor’s Office submitting a statement of its position on appeal, the parties jointly submitted a stipulated motion asking the State Records Committee to order the release of the records sought by The Tribune with redactions applied by the Governor’s Office to protect witness identities. 

STATEMENT OF REASONS FOR DECISION

Under Utah Code Section 63G-2-403(11)(a)(i), the State Records Committee issues signed orders within seven days of the hearing on a party’s appeal, either “granting the relief sought, in whole or in part,” or “upholding the governmental entity’s access denial, in whole or in part.” See Utah Code § 63G-2-403(11)(a)(i)–(ii). Here, the parties have stipulated to a specific form of relief: an order granting The Tribune access to the records it seeks, in a redacted form intended to protect witness identities. Such redactions do not include redactions of the name of Governor Spencer Cox, unless not redacting the Governor’s name would somehow disclose or compromise the identity of a witness. The State Records Committee hereby grants the parties’ request.

ORDER

Therefore, in accordance with the above, the Committee hereby ORDERS that, within seven days of entry of this order, the Governor’s Office must produce to The Tribune:

1.     Seven pages of documents dating from late 2022: two copies of an investigatory report (draft and final versions); a cover email; and two pages of notes; and

2.     Nineteen pages of documents from mid-2023: a two-page report; one page of interview questions that were asked to a series of witnesses; one page containing an interview schedule;  and fifteen pages of interview notes from speaking to witnesses.

These represent the totality of the documents responsive to The Tribune’s GRAMA request. The documents’ redactions should match the redactions made according to the redaction log already created by the Governor’s Office. No additional redactions may be made by the Governor’s Office before the release of such records. 

 
Entered this 1st day of July 2024.

BY THE STATE RECORDS COMMITTEE

Marie Cornwall
Chair, Pro Tem, Utah State Records Committee

Committee members: Cornwall, M., Chair Pro Tem,  Williams, K., Biehler, E., Buchanan, M., and Peterson, L. unanimously voted in favor of adopting and issuing  this Decision and Order. [1]

Enclosures: Right to Appeal; Penalty Notice

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).

1. We note that this order was stipulated to and drafted by the parties, and then submitted to us for our approval.