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West Valley City denies appeal for release of records in Powell case

Published September 25, 2012 7:21 pm

The Salt Lake Tribune had argued documents should be made public.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

West Valley City • The City Council on Tuesday denied a request from The Salt Lake Tribune to release certain records in the case of missing mother Susan Cox Powell.

Council members released an order Tuesday evening upholding City Manager Wayne Pyle's denial of the request. The order says release of the records reasonably could be expected to interfere with an investigation, create a danger of depriving a person of a right to a fair trial or disclose the identity of a source.

The denial comes after The Tribune appeared before the council earlier this month. The Tribune filed an appeal challenging denials by the police department and city manager earlier this summer to release five records in the missing mother's case.

The records requested include: recordings or transcripts of interviews with Josh Powell, Susan's husband; forensic reports of blood found in the Powell's West Valley City home and of possible charred remains found during a search in Utah's West Desert; GPS data from a tracking device placed on Josh Powell's minivan; and reports regarding vehicles Josh Powell rented after his wife's disappearance.

The Tribune had also requested records of any service calls to the Powell home between Jan. 1, 2007, and Dec. 6, 2009, the day Susan Cox Powell was last known to have been at the home. But Pyle previously informed the newspaper that the city has no record of any calls being made to the Powell's home.

Earlier this month, Pyle and Clint Gilmore, legal adviser to the West Valley City Police Department, both urged the council to deny the appeal because the investigation is ongoing.

"It has been established clearly ... that an ongoing investigation is in fact occurring along multiple avenues and taking a considerable amount of time," said Pyle, who added that the media — and The Tribune in particular — seem to not believe that.

But Tribune editor Nate Carlisle told the council earlier this month that the issue is not whether an investigation is ongoing, but rather if releasing the documents would "reasonably" interfere with that investigation.

Carlisle told the council that, previous denials aside, the council still has an obligation under the state's records law to independently review the documents and determine if they should be made public.

"If you don't take that look, you are just taking the police department's word for it," Carlisle said.

Most of the requested documents related directly to Josh Powell, Carlisle said, and there is not a "good reason to protect records that relate directly to Josh Powell."

Susan Cox Powell was last seen at the home on Dec. 6, 2009. Her husband was the only "person of interest" named by West Valley City Police. Josh Powell killed himself and sons Charlie, 7, and Braden, 5, in a fire set at his rented home in Graham, Wash., in February.

Carlisle earlier this month gave the council a copy of Utah Supreme Court ruling that found a government entity could not withhold documents merely because of concerns about their impact on an ongoing or future investigation.

With each day that passes, it is less and less likely that the records are going to be pertinent and reasonably interfere with an investigation, Carlisle said.

But council member Steve Buhler said earlier this month whatever Josh Powell said and did "did not die with him" and the records may be important to any case brought against other individuals.

The Tribune first requested documents related to the case shortly after Susan Cox Powell disappeared. It requested the five specific documents listed in the appeal in May.

Gilmore said the police department's "bottom line continues to be that we want to solve this case."

"That is what we are actively pursuing," he said. "And the fact is that the information being requested is sensitive and is therefore protected."

Gilmore said that all five records fall within provisions of the records law that protect ongoing investigations, enforcement and depriving a person of a fair trial. He said the GPS tracking device reports are protected by provisions that address investigative techniques and government sources.

When pressed about the need to protect the forensic reports, Gilmore responded that "no one can anticipate a document's future worth to a hearing, interview or prosecution. That would be revealing something about the case we don't want to reveal."

Last month, a 3rd District Court judge released 84 court documents filed in the case following two years of effort by The Tribune to get the records unsealed. Those documents included search warrants and affidavits that showed police almost immediately classified the case as a kidnapping and murder investigation.

But the city has refused to make other documents public. Last month, it turned down an appeal filed by Washington attorney Anne Bremner, who had requested investigative records on behalf of Chuck and Judy Cox, Susan's parents.

In announcing that decision, council member Corey Rushton said it was clear after reviewing records in private that releasing them would interfere with an ongoing investigation into what happened to the young mother. The council did not specify what records it reviewed.

Bremner has said she still intends to take the city to court over that decision.

The FBI this week also denied a request for any documents related to Josh Powell made by the Tribune under the Freedom of Information Act.

The agency based its denial on a provision of the act that protects records and information which "could reasonably be expected to interfere with enforcement proceedings."

brooke@sltrib.com

pmanson@sltrib.com