USA et al v. Colorado City et al

Filing 15

ORDER denying 2 Motion to Quash. Signed by Magistrate Judge Paul M. Warner on 7/11/2014. (srs)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

UNITED STATES OF AMERICA,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 2:14mc321

TOWN OF COLORADO CITY,
ARIZONA, et al.,
Defendants.

District Judge Robert J. Shelby
Magistrate Judge Paul M. Warner

This matter was referred to Magistrate Judge Paul M. Warner by District Judge Robert J.
Shelby pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court is the Utah Department of Public
Safety, Division of Peace Officer’s Standards and Training’s (“POST”) motion to quash a
subpoena issued to Lieutenant Al Acosta (“Lt. Acosta”) by Hildale City, Twin City Power, and
Twin City Water Authority (collectively, “Hildale Defendants”) pursuant to rule 45 of the
Federal Rules of Civil Procedure.2
The court has carefully reviewed the memoranda submitted by the parties. Pursuant to
civil rule 7-1(f) of the United States District Court for the District of Utah Rules of Practice, the

1

See docket no. 4.

2

See docket no. 2.

court elects to determine the motion on the basis of the written memoranda and finds that oral
argument would not be helpful or necessary. See DUCivR 7-1(f).
The Hildale Defendants seek to depose Lt. Acosta in Salt Lake City in the matter of USA
v. Town of Colorado, Arizona, which is now pending before Judge H. Russel in the United States
District Court for the District of Arizona, case no. 3:12-cv-8123. The subpoena further requests
that Lt. Acosta produce certain documents maintained by POST, including “[a]ll documents
regarding Utah POST’s decertification’s of former members of the Hildale City Marshal’s
Department, the Marshal Departments refusal to recognize the court ordered authority of Bruce
Wisan, and the Marshal Departments refusal to recognize occupancy agreements issued by
Wisan.”
POST asserts that the records and information sought by the Hildale Defendants have
been classified by POST as protected pursuant to the provisions of the Utah Governmental
Records and Management Act (“GRAMA”). GRAMA provides that the following records are
protected if properly classified by a governmental entity:
(10) records created or maintained for civil, criminal, or administrative
enforcement purposes or audit purposes, or for discipline, licensing, certification,
or registration purposes, if release of the records: (a) reasonably could be expected
to interfere with investigations undertaken for enforcement, discipline, licensing,
certification, or registration purposes; (b) reasonably could be expected to
interfere with audits, disciplinary, or enforcement proceedings; (c) would create a
danger of depriving a person of a right to a fair trial or impartial hearing.
Utah Code Ann. § 63G-2-305. POST argues that the records and information sought by the
Hildale Defendants relate to pending POST disciplinary investigations that have not been fully
adjudicated. POST further asserts that releasing this information before it completes its
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investigations could interfere with a potential disciplinary proceeding. Thus, POST initially
concludes, disclosure of these records would violate GRAMA by requiring the disclosure of a
protected or privileged matter.
In response, the Hildale Defendants argue that requiring compliance with the subpoena
would not violate GRAMA. Specifically, the Hildale Defendants assert that because the first
category of records are related to the decertification of former Hildale City Marshals Officers,
their release would not interfere with investigations or disciplinary proceedings or deprive the
officers of a fair hearing because the officers have already been decertified and would not be
prejudiced by the release of the information.
The Hildale Defendants further assert that the second and third categories documents
requested involve the Hildale City Marshal’s Officers’ refusal to recognize Bruce Wisan’s
authority and his occupancy agreements. The Hildale Defendants recognize that while
documents in this category may have been created or maintained for enforcement, discipline or
certification purposes, the release of these records will not interfere with those investigations or
deprive any current officers of a fair hearing because Utah Admin. Code R728- 409-13(B)
provides that an officer whose POST certification is the subject of an adjudicative proceeding “is
entitled to a copy of the materials contained in [POST’s] investigative file that [POST] intends to
use in the adjudicative proceeding.” The Hildale Defendants state that assuming that POST does
have documents regarding Hildale City Marshal’s Officers refusing to recognize Bruce Wisan’s
authority or occupancy agreements, such documents would likely be used in any future
adjudicative proceeding against the officer, and he would be entitled to them pursuant to this
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rule. Thus, they conclude that releasing these documents at this time would not interfere with
these investigations, disciplinary proceedings or hearings, as the officers are entitled to them
regardless.
In its reply brief, POST appears to agree with the Hildale Defendants’ interpretation of
GRAMA with regard to the records requested. Specifically, POST explains that it cited to Utah
GRAMA provisions in its motion because without a court order and protective order in place,
POST would be in violation of state law, which it is required to follow. Thus, POST now asserts
that this court should order the records and information to be disclosed and subject to a protective
order to ensure POST is compliant with state and federal laws.
Based on the foregoing, the court DENIES POST’s motion to quash the subpoena and
orders the documents to be produced subject to Confidentiality Stipulation and Protective Order
already in place in the underlying lawsuit. The court notes that the records requested are not the
result of a criminal investigation; it is pursuant to an administrative matter. Thus, any documents
produced by POST in response to the subpoena are deemed confidential under the Protective
Order will be entitled to that protection throughout the litigation.
IT IS SO ORDERED.
DATED this 11th day of July, 2014.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

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