Bill that would bar public access to internal police records heads to governor’s desk

Legislators heard public comment on the bill, HB399, only once, briefly in February.

(Cottonwood Heights Police Department) Body camera footage released by Cottonwood Heights Police Department show officers giving aid to Zane James after he was shot by Officer Casey Davies (center) on May 29, 2018. Davies told internal investigators as part of his Garrity statement that he wrecked James before shooting him. James later died. A bill that would restrict the public from accessing such Garrity statements is headed to Gov. Spencer Cox’s desk after passing out of the Senate late Thursday.

A bill that would restrict the public from accessing certain internal law enforcement records is headed to Gov. Spencer Cox’s desk after passing out of the Senate late Thursday, the penultimate day of this year’s legislative session.

Stakeholders have said access to these records is critical to maintain public trust and hold government employees accountable for policy violations or misconduct. But police and other officials have argued that the personnel records are highly sensitive and have chastised efforts to access these documents.

Lawmakers allowed only six people to comment on the bill — three in favor, and three against — during a lone Feb. 18 committee meeting, the measure’s only public comment period.

“Public comment on a bill that limits people’s access to records was severely restricted in Utah’s House,” Lauren Gustus, executive editor of The Salt Lake Tribune, said in a statement Friday. “And Utahns were offered no chance to share their thoughts on the legislation in a Senate hearing because there was no hearing.”

Cox said Friday on KSL NewsRadio that he plans to sign the measure into law.

The bill was proposed in response to The Tribune’s police shooting data collection project, Shots Fired. Tribune reporters sought such internal police documents and won access at the State Records Committee, although some departments — including the West Jordan and Cottonwood Heights police departments and the Washington County Sheriff’s Office — took that decision to court.

What are these internal police records?

The records, called Garrity statements — based on a 1967 U.S. Supreme Court ruling in Garrity v. New Jersey — are forced interviews. Public employees give such statements with the understanding that if they don’t, they could lose their job. Lying during these statements can also be grounds for termination.

The Supreme Court ruled that these statements cannot be used in criminal court because employees are forced to talk — a violation of their Fifth Amendment rights against self-incrimination.

[Read more: This is why police officers can be forced to explain a shooting]

West Jordan Police Chief Ken Wallentine said during the bill’s sole public comment period that these interviews can be difficult for officers and can uncover painful memories.

”The threat that these candid and draining interviews will be shared on the pages of the newspaper or the website as so-called human interest stories powerfully reinforces the stigma that causes our officers to bottle up raw emotion and let it become a festering wound,” he said.

Such records are considered public in other states, however, and have uncovered various issues including a lack of public insight into police misconduct in Hawaii, or allegations of racial bias and policy violations by police in Arkansas.

In Utah, Garrity statements obtained by The Tribune related to a 2018 police shooting in Cottonwood Heights revealed an officer’s previously unknown use of force and discrepancies between police officials’ narrative of what happened and what the shooting officer said happened.

The Salt Lake County District Attorney’s Office recently reopened their investigation into the Cottonwood Heights case after another officer came forward years later saying he knew about the use of force described in the Garrity interview.

Garrity statements can also reveal why police shot at someone, as such records would reveal in another Utah case from 2018, where officers who fatally shot someone declined to answer prosecutors’ questions about the deadly use of force, citing the right against self-incrimination. The Tribune’s access to those West Jordan police records is currently being contested in court.

Vote came weeks after one brief public comment period

Acting committee chairman Rep. Jefferson Burton, R-Salem, citied time constraints Feb. 18 when he limited public comment on the measure, after bill sponsor and committee chairman Rep. Ryan Wilcox, R-Ogden, pushed the bill from the second spot to the last spot on the committee’s agenda.

At the end of the meeting, at least seven people who planned to testify on the measure were not granted the opportunity to comment. Wilcox told The Tribune that lawmakers shuffled the agenda to accommodate legislators presenting bills in other committees.

On the House floor on Feb. 22, Democratic Reps. Sandra Hollins and Angela Romero, as well as Republican Rep. Phil Lyman, voted against the bill, while 66 other House members voted in favor.

The bill moved from the House to the Senate on Feb. 23 and was assigned to the Senate Business and Labor Committee the following day. But the item never appeared on the committee’s agenda. Instead, it was returned to Senate Rules Committee on Tuesday, then added to the Senate second-reading calendar on Thursday and passed unanimously under suspension of rules — with one senator absent — just after 6:45 p.m. that evening.

It moved out of the Senate for final passage Friday morning without a third reading.

“I suspect I am not the only one who is troubled by lawmakers’ efforts to pass legislation that cuts off public records without involving the public in the process,” Gustus, with The Tribune, said.

Sen. Curtis Bramble spent about the same amount of time Thursday night explaining the bill as it took for senators to approve it during the roll call vote.

“The biggest thing that this bill does — it specifies that Garrity statements taken at the time immediately following a critical incident is a protected record, the same as other law enforcement records,” he said. “Doesn’t mean that they can’t be accessed, but … you have to meet the criteria of the balancing test.”

Utah open records law states that a record can be released through a public records request if the requester can prove the public’s right to know exceeds the privacy rights of the individuals that the record concerns.

In a statement, Mike Judd, an attorney for The Tribune, said Utahns should be alarmed by the measure, “both in what it does and in how it was passed.”

“In practice, the bill narrows public access to records in a way that will excuse city officials and police leaders from public oversight,” Judd said. “A law restricting public access to records is always a bitter pill to swallow, for anyone who believes in the value of governmental transparency. The process lawmakers used to rush HB399 through, as the legislature seemed to take every opportunity to avoid public input, makes the bill bitterer still.”