Michael Patrick O’Brien: It is the job of the press to trust, but verify

Openness by police departments show the public the good and the bad.

(Francisco Kjolseth | The Salt Lake Tribune) BYU Police work a football game at LaVell Edwards Stadium in Provo, Saturday, Sept. 25, 2021.

At first, I doubted the asserted defense in a police shooting from a few years ago. The involved officer claimed the dead suspect had tried to hit him with a snow shovel. I wondered—did that really justify an armed response?

But then I watched the involved officer’s body cam video of the incident. I was terrified by the assailant’s actions. I will never look at snow shovels the same way again. I would have shot to defend myself, too.

That’s the power of public access to government records. We see the bad. We learn the good. We understand the necessary.

I am a media law attorney. My law partners Mark Tolman, Mike Judd and I go to court to help journalists find out what is bad, good and necessary in government actions. It is one of the most satisfying parts of our jobs.

Our clients scrutinize every branch of government. They have examined school/university administration, investigated elected official competence, asked how health officials responded to the pandemic and questioned whether regulators were adequately protecting the consumer.

Lately, much of that access litigation has involved police agencies. These are difficult lawsuits sometimes. Cops protected me when I was a young crime victim. My late brother Pete was a heroic award-winning police officer.

Not all persons and communities have enjoyed similar positive encounters with law enforcement, proving once again that the garden of life includes both blossoms and weeds. The public cannot separate the wheat from the chaff, however, without access to the records generated during the course of policing.

Sadly, such information is not always readily available.

Thus, for the last five years, journalists from The Salt Lake Tribune litigated against the Brigham Young University police department to make sure it accepted and complied with the Utah state records law — the Government Records Access and Management Act (GRAMA). The Tribune wrote about the fruits of that long effort this week.

The Tribune is in court right now seeking documents from other law enforcement agencies about their use of deadly force. This includes the records that even police officers themselves admit provide the most candid and thorough accounts of police shootings.

These incredibly important records are called Garrity statements. They are named after a court case (involving a New Jersey police officer named Garrity who was accused of participating in a ticket-fixing scheme) which ruled that a government employer (like a police department) can force a government employee to explain their actions, but a government prosecutor cannot use those same explanations against the employee in a criminal case.

Unfortunately, journalists today cannot focus their energy only on reporting about government actions. Instead, they also must spend their limited resources in litigation trying to uncover the details of those very actions. Although it is frustrating, it also is one of the most important things journalists do on our behalf.

We cannot govern ourselves unless we know what our government does. We all benefit from government transparency, and most of us say we support it. Journalists, however, put their money where their mouths are on this important principle.

Some cynics suggest journalists only are trying to stir up trouble to sell newspapers. Other skeptics argue we should just step back and trust our public officials. I agree that our freedom and prosperity are based, at least in part, on trusting the good will of our government.

Yet, it was President Ronald Reagan who often said, “Trust, but verify.” That’s exactly what journalists like my friends at The Salt Lake Tribune are doing right now — for you and for me.

I am honored to assist them in such a noble American endeavor.

Michael Patrick O'Brien | attorney at Jones Waldo

Michael Patrick O’Brien is a Salt Lake City media law and employment lawyer.