Utah Supreme Court Rules That Newspaper May Have Access to Investigative Report Under Public Records Law

The Utah Supreme Court has ruled in Deseret News v. Salt Lake County that the newspaper had the right of access to a report which investigated allegations of sexual harassment by the county clerk office’s chief deputy. The county attempted to claim that the report was not a public record under the state statute. The Court ruled that the government bore the burden of showing that the report was not presumptively a public record. Said the Court,

District courts review record denials under GRAMA de novo….In the course of conducting its review of the disputed record, a court may consider and weigh interests and public policies bearing on whether the record should be disclosed. The newspaper and the County filed cross-motions for summary judgment on the issue of whether the report was properly classified under GRAMA. Although the County contended that the district court could affirm the County’s classification decision as a matter of law, it argued that the weighing of interests and public policy to be undertaken by the court was a fact-intensive task beyond the reach of summary judgment. After conducting an in camera review of the report, the district court agreed with the County and issued a memorandum decision ruling that the County had properly classified the report and deferred its weighing of interests and public  policy until it could gather facts. The newspaper appealed.
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The Legislature enacted GRAMA to advance the cause of governmental transparency and accountability. When it explained why GRAMA was necessary, the Legislature expressed the view that both the right of access to information concerning the conduct of the public’s business and the right of individual privacy concerning personal information acquired by governmental entities were entitled to constitutional protection….Although both of these interests deserve constitutional dignity, they do not enjoy an altogether harmonious relationship. The provisions of GRAMA provide a rational framework for mediating the conflicts between these interests.

In addition to citing constitutional reasons for enacting GRAMA, the Legislature noted that the public policy of this state required that access to certain forms of information be restricted….The Legislature’s commitment to governmental transparency is reflected in GRAMA’s declaration that “[a] record is public unless otherwise expressly provided by statute.” Moreover, although GRAMA contains a lengthy roster of records that are presumptively public,… the statute cautions that this list “is not exhaustive and should not be used to limit access to records….

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Although GRAMA does not classify sexual harassment investigative reports, the County’s personnel policy relating to sexual harassment classifies them as “protected.” Salt Lake County Personnel Policy & Procedure, 5730 Sexual Harassment 4.3.1 (2004). This categorical classification created by county policy, while permitted by GRAMA under Utah Code section 63-2-306(2) (2004), does not endow a specific report with a presumption that it should be withheld if requested. Unlike a governmental entity’s classification of a type of record containing information expressly classified by GRAMA, the County’s classification of sexual harassment investigative reports represents, at most, a prediction of how a particular investigative report would be treated if a request were made to make it public. When the County defended its denial of the newspaper’s request for access to the report, it was not so much defending its decision on the Floros report as it was defending its classification policy for all sexual harassment reports. Thus, when the County cited the GRAMA provision exempting from disclosure a record that “constitutes a clearly unwarranted invasion of personal privacy” as a ground for denying the newspaper’s request, it was claiming that all investigative reports of sexual harassment complaints qualify for this exemption. When the County contended that no one, not even those empowered to rule on the newspaper’s appeals, should see the contents of the report, it confirmed that as far as it was concerned, its advance classification of sexual harassment investigative reports rendered unnecessary any additional GRAMA review. Faced with a GRAMA request for a particular sexual harassment report, the County could not deny access based solely on its advance categorical classification. Instead, GRAMA required the County to examine and evaluate the GRAMA status of the Floros report in the context of the interests relevant to its content alone. Thus, while some sexual harassment investigations may not have stirred suspicions of efforts to shield partisan public officials from scrutiny, the Floros investigation did, and justifiably so. The County’s reluctance to disclose the contents of the report to the Council merely reinforced this perception. By protesting any disclosure, however, the County was asserting that the contents of the Floros report were irrelevant to assessing the correctness of the County’s classification. Only the merits of classifying all sexual harassment investigative reports as “protected” mattered. We take issue with this position as being incompatible with GRAMA….GRAMA does not permit the County to defend its denial of access with this simple syllogism: the County reasonably classified all sexual harassment investigative reports “protected”; the Floros investigative report concerned an allegation of sexual harassment; therefore the report is “protected.”

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GRAMA classifies private records into two categories. The first acquires its status by virtue of its inherently personal nature; for example, a record pertaining to medical treatment or eligibility for social welfare benefits. Utah Code Ann. § 63-2-302(1)(a) (Supp. 2007). This category is not at issue here.

The second private record category, the one in which the County seeks to place the Floros investigative report, includes “other records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.”…

As we observed above, the content of an investigative report of a sexual harassment allegation could by its nature be expected to invade privacy. It is also possible that considerations of public interest might push aside concerns over even the most intimate, embarrassing, and humiliating episodes of human sexual behavior. GRAMA’s private and protected classification of records that “constitute[] a clearly unwarranted invasion of personal privacy” does not sanction denying access to a record merely because it invades personal privacy. To qualify for nonpublic classification a record must not only invade personal privacy, it must do so in a “clearly unwarranted” manner.

Many factors may contribute to a determination of whether an invasion of personal privacy is warranted. These include the central consideration here: whether elected public officials failed to respond properly to sexual harassment that might, without the presence of possible administrative misconduct, meet the standard of “clearly unwarranted invasion of personal privacy.”…The County argues that it properly classified the investigative report as private under section 63-2-302(2)(d) because, as a matter of law, its disclosure would unnecessarily invade the privacy interests of the alleged victim, the alleged perpetrator, and other persons participating in the investigation. We disagree.

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Thirteen of the sixteen people who were interviewed for the investigative report were never identified by name or job description. The investigators referred to these individuals exclusively by aliases,  a precaution that substantially diminishes the risk of invading the personal privacy of third-party witnesses.

We are aware, as the County suggests, that it could be possible for a dedicated and enterprising person to derive the identities of one or more witnesses regardless of the precautions taken to preserve their anonymity. We also note that a breach in confidentiality might expose witnesses to unwanted attention. We even concede that it might be conceivable, but only remotely so, that the unintended disclosure of the identity of witnesses in the investigation of Mr. Floros might give pause to those who may be sought out for information in future investigations.

We conclude, however, that these hypothetical, untoward events are too improbable to merit assigning them weight on the side of the scales favoring withholding the report. Indeed, as the newspaper indicated in its argument to the district court, the record contains “no evidence to show that if the report is released that people in the office or in the public or anyone will be able to connect the dots and figure out who these people are.” The newspaper further indicated that the County “couldn’t figure out who the employees were that are being talked about under the alias[es]” in documents submitted to the district court. This endorsement of the effectiveness of the precautions undertaken by the investigators to preserve the anonymity of witnesses would likely inspire the confidence of those called upon to be witnesses in future investigations.

Read the ruling here.