Deny, deny, deny.
That’s often how government agencies in Utah treat records requests from pesky journalists and the general public. Ideally, those denials would be in keeping with the Government Records Access and Management Act (GRAMA), which regulates the release of records locked away by state and local governments. However, GRAMA is a voluminous law, with countless exceptions, and subject to conflicting interpretations. In practice, therefore, records deemed public by one municipality often aren’t deemed so by another, agencies might release certain records one day but not the next, and some records custodians don’t know a GRAMA request from a TPS report.
To that end, intrepid paper-chasers must assume everything is public and, if denied access, appeal to the agency’s chief GRAMA authority for reconsideration within 30 days. They must question the legal grounds for the denial, but also appeal to the decision-maker’s civic sensibility.
“It’s an often-overlooked remedy that reporters and the public have to obtain â€¦ what would otherwise be nonpublic records,” says Jeff Hunt, a Salt Lake City media-law attorney. “Even if the records are properly classified [as private, protected or controlled], if there’s really no good reason, or the reason for nondisclosure is outweighed by a great public interest for disclosure, then you have a shot.
Hunt adds that an agency holding the requested records isn’t likely to overrule its own decision. But, for the pluckiest gadflies, going through the motions can pay off. Case in point, Salt Lake Tribune reporter Heather May recently won an appeal at the state records committee, six months after filing an initial GRAMA request with the Salt Lake City Civilian Review Board (CRB), which investigates alleged police misconduct. The city denied May’s request, as did its records appeals board.
Noticing that several serious allegations of misconduct sustained by the CRB were exonerated by then-Police Chief Rick Dinse, May requested the CRB’s findings on a handful of cases. The allegations included excessive force, civil-rights violations, destruction of evidence and profiling. Under GRAMA, if the police department sustained the allegations, the officers’ names and details of the cases would be public. Opposite two city lawyers before the state records committee, Brent Israelsen, an editor on the Trib’s cops and courts desk, argued GRAMA should apply the same to misconduct sustained by the CRB.
“It was kind of a specious argument, but we tried it anyway,” Israelsen says. Though that argument flopped, he also urged the committee to apply its own discretion, as provided by GRAMA, arguing that the public’s right to know trumps the police officers’ legitimate privacy interests.
“When the mayor beefed up the civilian review board, he said one of the purposes was to â€˜promote greater trust between the police department and the community,’” Israelsen recalls of his argument. “There can’t be this trust if the community doesn’t understand how a panel of three upstanding citizens chosen by the mayor â€¦ was able to uphold these allegations and the police chief just reversed them.
In a 3-2 vote, the state records committee agreed, noting in its Aug. 17 decision, “there is a substantial public interest in disclosing said records.” Though uncommon, the decision is not unprecedented.
Of 64 GRAMA appeals granted or partially granted by the state records committee since 1992, by City Weekly’s count, at least 13 were cases where records properly classified nonpublic were released in the public’s interest. In one coup, The Associated Press won access to ordinarily protected investigative records associated with the Utah attorney general’s Olympic bribery probe. In other cases, a prisoner prevailed on similar grounds in a request for inmate and guard assignments, and a credit-reporting firm obtained Utah’s driver license database.
Hunt sees the so-called “balancing interests” provision of GRAMA as an equalizer. “Any [layperson] can come in and make a compelling argument based on public-policy considerations,” he says.
To date, the city hasn’t met May’s request, and it won’t anytime soon. Another remedy provided for in GRAMA gives both parties 30 days from the committee’s Aug. 17 decision to appeal it in district court, and Assistant Police Chief Scott Atkinson says the city will do exactly that.
Atkinson cites the committee’s slim 3-2 decision as reason enough to appeal. He adds that there are other ways to inspect the department’s discipline regime without implicating officers publicly.