Deseret News v. Salt Lake County

2008 UT 26
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Deseret News Publishing Company, 	No. 20060454
publisher of the Deseret Morning
News,
Plaintiff and Appellant,
v.
Salt Lake County, a political
subdivision of the State of
Utah, and the Salt Lake County 	F I L E D
District Attorney’s Office,
Defendants and Appellees. 	March 28, 2008
---
Third District, Salt Lake
The Honorable Tyrone E. Medley
No. 050900725
Attorneys: 	Jeffrey J. Hunt, David C. Reymann, Michael T. Hoppe,
Salt Lake City, for plaintiff
Lohra L. Miller, Valerie M. Wilde, Salt Lake City,
for defendants
---
NEHRING, Justice:
INTRODUCTION
¶1 	In this appeal, we are called upon to decide whether
Salt Lake County’s decision to deny the Deseret Morning News
access to an investigative report of alleged sexual harassment
was a lawful application of Utah’s Government Records Access and
Management Act, commonly known as GRAMA. 	The district court
concluded that the County properly withheld the report. 	We
disagree and reverse.
BACKGROUND
¶2 	In November 2003, while Marcia Rice was an employee of
the Salt Lake County Clerk’s Office, she filed a sexual

No. 20060454 	2
harassment complaint against the office’s chief deputy, Nick
Floros. 	According to Ms. Rice, Mr. Floros helped her obtain a
position for which she was unqualified, targeted Ms. Rice for his
highly inappropriate sexual advances once she began her
employment, and retaliated against her when she refused to submit
to his libidinal overtures. 	Ms. Rice further claimed that
Mr. Floros previously engaged in similar conduct with at least
one other female employee and that county officials knew of
Mr. Floros’s inappropriate behavior and failed to respond.
¶3 	Under Salt Lake County’s Personnel Policy No. 5730,
allegations of sexual harassment are to be investigated within
fifteen calendar days of receipt of a written complaint. 	When
Salt Lake County Clerk Sherrie Swensen learned of Ms. Rice’s
complaint, she placed Mr. Floros on administrative leave pending
the outcome of an investigation. 	Citing her desire to ensure
objectivity in the investigation and her long-term professional
relationship with Mr. Floros, Ms. Swensen referred the
investigation to the Salt Lake County District Attorney’s Office.
¶4 	District Attorney David Yocom retained two independent
attorneys with experience in employment law to conduct the
investigation and prepare a list of findings and recommendations.
The investigating attorneys interviewed Ms. Rice, Mr. Floros,
Ms. Swensen, and several other current and former county
employees. 	Based on these interviews and a review of relevant
documents, the investigators compiled a twenty-three-page
investigative report. 	In February 2004, three days before the
investigators delivered the report to Mr. Yocom, Mr. Floros
retired.
¶5 	The District Attorney’s Office reviewed the report and
sent Ms. Rice a summary of its contents. 	The summary is a public
document, and it received extensive media coverage. 	According to
the summary, the investigators concluded that the evidence
substantiated Ms. Rice’s complaint that Mr. Floros’s conduct
constituted “egregious violations” of county policy. 	It
concluded that Mr. Floros, were he still employed with the
County, should be immediately terminated and considered
ineligible for future employment. 	The summary did not indicate
whether the full investigative report addressed Mr. Floros’s
alleged history of sexual misconduct or whether the investigative
report reached any conclusions concerning the manner in which Mr.
Floros’s superiors dealt with complaints about his conduct.
¶6 	Armed with the summary, Ms. Rice filed a notice of
claim with the United States Equal Employment Opportunity

1 Although the County originally cited section 63-2-304(17),
which provides for protection of “records disclosing an
attorney’s work product,” as grounds for its refusal to release
the report, this provision is not at issue in this case.
3 	No. 20060454
Commission in July 2004. 	Several weeks later, the EEOC
determined that reasonable cause existed to believe Ms. Rice had
been the victim of sexual harassment and unlawful retaliation at
the hands of Mr. Floros. 	In October 2004, Ms. Rice filed a
federal civil rights lawsuit against the County, Ms. Swensen, and
Mr. Floros, alleging sexual harassment and retaliation, which she
eventually settled.
¶7 	Meanwhile, a Deseret Morning News reporter,
dissatisfied with the information contained in the summary,
submitted a request authorized by GRAMA for a copy of the full
investigative report. 	The County denied the reporter’s GRAMA
request, citing its policy to withhold from public access records
“that are considered protected, confidential and/or private.” 	In
short order, the newspaper’s lawyer challenged the County’s
denial. 	The lawyer asked the County to support its denial with
specific statutory authority. 	The District Attorney’s Office
promptly replied with the information mandated by GRAMA to be
included in a notice of denial. 	See Utah Code Ann. § 63-2-205(2)
(2004).
¶8 	GRAMA permits classifying as either “private” or
“protected” any records that contain information that, if
disclosed, would constitute a “clearly unwarranted invasion of
personal privacy.” 	Id. § 63-2-304(25). 	The District Attorney
claimed that the Floros investigative report was such a document.
The District Attorney next claimed that the report was
“protected” because it was “created or maintained for . . .
administrative enforcement [or disciplinary] purposes,” and that
its release “reasonably could be expected to interfere with
investigations undertaken for enforcement, discipline, licensing,
certification, or registration purposes.” 1 	Id. § 63-2-304(9).
Finally, the District Attorney explained that the investigative
report was classified as “protected” by express designation in
the County’s personnel policy governing sexual harassment.
¶9 	The Deseret Morning News disagreed with the County’s
classifications. 	It first lodged an administrative appeal with
Salt Lake County’s Government Records Access Management Policy
Administration Hearing Board. 	After a hearing, the Board denied
the newspaper’s request. 	The Board concluded that the County had
properly classified the report and its contents. 	The newspaper
then appealed to the Salt Lake County Council. 	Before the

No. 20060454 	4
Council, the District Attorney objected to the newspaper’s
request that Council members review the report in camera. 	He
contended that the contents of the report were irrelevant to
determining whether the County had properly classified it. 	The
District Attorney also contended that the Council, despite being
empowered to rule on the newspaper’s appeal, need not look at the
report’s contents before passing judgment on its status under
GRAMA. 	He anchored his resistance to disclosing the contents of
the report in the text of GRAMA, but some, including the
newspaper and Republican Party members of the Council, suspected
other motives. 	They looked at the County’s zealous protection of
the report and suspected a political cover-up. 	Because many of
the key players, notably the District Attorney and the County
Clerk, were members of the Democratic Party serving in elected
posts, Republican members of the Council charged that Democrats
were helping keep the embarrassing details of the report from
public view. 	The report, they believed, would direct
unflattering light on the workplace environment in the County
Clerk’s Office and on its attitude toward sexual harassment
allegations directed at high-level employees.
¶10 	Rather than continue their skirmish over the propriety
of in camera review by the Council, the newspaper and the County
agreed to bypass the Council and move their dispute to court.
The newspaper then began the lawsuit that resulted in this
appeal.
¶11 	District courts review record denials under GRAMA de
novo. 	Id. § 63-2-404(7)(a). 	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.
ISSUES AND STANDARD OF REVIEW
¶12 	The Deseret Morning News attributes several errors to
the district court. 	The newspaper insists that the court was

5 	No. 20060454
wrong when it declined to weigh interests and public policy as
part of its assessment of whether the County had properly
classified the report. 	It argues that had the district court not
deferred its examination of these considerations, the court could
have, and should have, ruled the report public as a matter of
law. 	Through this appeal, we are called upon to decide how
governmental entities go about the work of classifying records
under GRAMA and how an entity’s classification responsibilities
shape the distribution of burdens between record requesters and
governmental entities upon judicial review of a denied record
request. 	These issues present questions of statutory
interpretation that we review for correctness, affording no
deference to the district court’s legal conclusions. 	E.g., R.A.
McKell Excavating, Inc. v. Wells Fargo Bank, N.A., 2004 UT 48,
¶ 7, 100 P.3d 1159.
ANALYSIS
I. 	OVERVIEW OF GRAMA
¶13 	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. 	Utah Code Ann. § 63-
2-102(1) (2004). 	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.
¶14 	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. 	Id. § 63-2-102(2)-(3). 	The Legislature’s
commitment to governmental transparency is reflected in GRAMA’s
declaration that “[a] record is public unless otherwise expressly
provided by statute.” 	Id. § 63-2-201(2). 	Moreover, although
GRAMA contains a lengthy roster of records that are presumptively
public, id. § 63-2-301(1)-(3) (Supp. 2007), the statute cautions
that this list “is not exhaustive and should not be used to limit
access to records,” id. § 63-2-301(4).
¶15 	GRAMA strives to accomplish its legislative goals by
creating a government records classification system. 	The most
general classification segregates public from nonpublic records.

2 GRAMA uses the term “[r]ecord series.” 	Utah Code Ann.
§ 63-2-103(23) (Supp. 2007).
No. 20060454 	6
GRAMA then creates three categories of nonpublic records:
private, id. § 63-2-302 (2004); controlled, id. § 63-2-303; and
protected, id. § 63-2-304. 	Only the private and protected
categories of nonpublic records concern us here.
¶16 	To assist a governmental entity with the task of
classifying its records, GRAMA details attributes unique to each
of the three nonpublic categories. 	While GRAMA identifies in
detail many types of information and assigns classifications to
them, GRAMA’s taxonomy is not exhaustive. 	For example,
investigative reports of sexual harassment complaints are not
classified. 	See id. §§ 63-2-302 through -304. 	GRAMA anticipates
that its inventory of records does not classify every
governmental record and sets out procedures for classifying
records that have escaped statutory classification. 	These
classification procedures focus on properly identifying and
balancing interests associated with a record. 	For example, if a
record fits into more than one category, GRAMA authorizes a
governmental entity to select one “by considering the nature of
the interests intended to be protected and the specificity of the
competing provisions.” 	Id. § 63-2-305(1). 	To facilitate
classification, GRAMA permits a governmental entity to divide a
record into its public and nonpublic parts by redacting nonpublic
content. 	Id. § 63-2-307. 	Moreover, to ease the burden of record
classification, GRAMA does not impose upon a governmental entity
a duty to classify a record unless “access to the record is
requested,” id. § 63-2-306(2), but it may reclassify or
redesignate its records at any time, id. § 63-2-306(3).
II. 	THE DISTRICT COURT OWED NO DEFERENCE TO THE COUNTY’S ADVANCE
CLASSIFICATION OF SEXUAL HARASSMENT INVESTIGATIVE REPORTS
¶17 	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 2
containing information expressly classified by GRAMA, the
County’s classification of sexual harassment investigative
reports represents, at most, a prediction of how a particular

7 	No. 20060454
investigative report would be treated if a request were made to
make it public.
¶18 	To be sure, under some circumstances, most
investigative reports concerning allegations of sexual harassment
could qualify for nonpublic status under one or more provisions
of GRAMA. 	For example, a report of an ongoing investigation
“reasonably could be expected to interfere with investigations
undertaken for enforcement, discipline, licensing, certification,
or registration purposes.” 	Id. § 63-2-304(9)(a) (2004). 	More
plausible still is the possibility that a sexual harassment
investigative report contains information that “constitute[s] a
clearly unwarranted invasion of personal privacy, or [allow]
disclosure [that] is not in the public interest.” 	Id. § 63-2-
304(25). 	Finally, one might even imagine a sexual harassment
investigative report that “reasonably could be expected to
disclose investigative or audit techniques, procedures, policies,
or orders not generally known outside of government . . . [and
result in] disclosure [that] would interfere with enforcement or
audit efforts.” 	Id. § 63-2-304(9)(e). 	Still, despite the
authority granted the County by GRAMA to classify the entire
category of sexual harassment investigative reports in advance,
it is certainly possible that none of these statutory provisions
would justify withholding access to a particularly requested
report.
¶19 	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

No. 20060454 	8
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.
¶20 	The County’s policy of classifying all sexual
harassment investigative reports as “protected” would never be
sufficient, standing alone, to justify denying a request for
access to such a report. 	We agree that the assignment of a
primary classification to a record series in advance of a record
request is a prudent policy. 	Advance classification offers
organizational structure that supports record retention and
management practices. 	Advance classification may also provide an
important starting point when a governmental entity is confronted
with a request for all, or a significant part, of a record
series, where passing judgment on each record individually would
be impractical. 	Advance classification is, however, of little or
no relevance when evaluating a request for the disclosure of a
single record within a record series that does not bear an
express GRAMA classification.
¶21 	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.”
¶22 	As an alternative to classifying a record series, GRAMA
authorizes a governmental entity to “designate” a classification
for it. 	Id. § 63-2-306(1). 	When a governmental entity
designates records, it assigns a primary classification based on
how, in its experience, a majority of the records in the series
would be classified should the occasion arise to classify them.
Although the County chose to classify sexual harassment
investigative reports instead of designating them, that choice
conferred no greater presumption of the correctness of the
record’s status under GRAMA. 	The County presumably had the
expertise to predict what classification a majority of sexual
harassment investigative reports would bear but had no ability to
predetermine how any particular report should be classified.
That judgment could be made only after the County reviewed the
content of the requested investigative report and took into
account the competing interests of public access versus

3 The policy of requiring disclosure of a record when
“countervailing interests are of equal weight,” found in GRAMA’s
statement of legislative intent, Utah Code Ann. § 63-2-102(3)(e)
(2004), conflicts with the standard to be applied by courts
hearing reviews of GRAMA rulings. 	Under this standard a court
may order disclosure “if the interest favoring access outweighs
the interest favoring restriction of access.” 	Id. § 63-2-
404(8)(a). 	We hold that the conflicting “outweighs” standard
must yield to the clear and preeminent expression of legislative
intent.
9 	No. 20060454
restricted disclosure. 	A governmental entity’s commitment to
perform this important work of interest identification and
balancing is essential if GRAMA’s aims are to be realized. 	It is
work that a governmental entity cannot sidestep by electing to
classify a record series in advance, as contrasted to designating
the record series.
¶23 	By functionally merging the classification and
designation of records we have not wholly deprived the two terms
of any separate meaning. 	For example, a governmental entity’s
advance classification of a record series, as distinguished from
designation, may be entitled to greater deference than its
designation when the record series is comprised of records
expressly classified by GRAMA. 	Sexual harassment investigative
reports do not appear, however, within any statutory
classification. 	Here, the County was required to conduct an
individualized assessment of the Floros report, its primary
classification notwithstanding.
III. 	GRAMA REQUIRES THE COUNTY TO CONDUCT A CONSCIENTIOUS AND
NEUTRAL ASSESSMENT OF THE FLOROS REPORT
¶24 	When the County received the newspaper’s request, it
assumed the statutory responsibility to determine the report’s
classification status by taking into account the entire scope of
GRAMA, including its expressions of legislative intent, its
presumptions favoring access, and its mandate that when competing
interests fight to a draw, disclosure wins. 3 	This duty is
reflected in GRAMA’s requirement that denial letters contain
citations to the provisions of the statute supporting the denial.
It would be incompatible with a governmental entity’s
responsibilities under GRAMA to apply to a record request a
review methodology which presumes that a requested record has
been properly classified and then proceed to canvass GRAMA for
statutory language that confirms its designation. 	Here, the
County was required to conduct a conscientious and neutral
evaluation of the report’s GRAMA status without regard to

4 Cf. U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)
(indicating that the purpose and plain language of the federal
Freedom of Information Act, which also promotes access to public
records, creates “the strong presumption in favor of disclosure
[that] places the burden on the agency to justify the withholding
of any requested documents”).
No. 20060454 	10
existing designations or classifications. 4 	This obligation
continues throughout the appeal process. 	If a governmental
entity becomes aware that circumstances that contributed to the
denial of a record request have changed during the appeal, or
before another request is received for the same record, the
legislative intent and statutory structure of GRAMA requires the
entity to reassess the classification of the record and, if
appropriate, alter its classification as permitted by section 63-
2-306.
IV. 	GRAMA MANDATES THAT THE DESERET MORNING NEWS BE GRANTED
ACCESS TO THE FLOROS INVESTIGATIVE REPORT
¶25 	GRAMA does not contemplate adversarial combat over
record requests. 	It instead envisions an impartial, rational
balancing of competing interests. 	To be sure, a requesting party
may disagree with the governmental entity over the classification
of a record, but the overriding allegiance of the governmental
entity must be to the goals of GRAMA and not to its preferred
record classification. 	When a governmental entity follows this
approach, the requesting party can be assured upon receiving a
denial that the entity has honored the purpose and intent of
GRAMA and that the grounds cited in the denial were not uncovered
in a single-minded quest for reasons to turn away the record
request.
¶26 	Under the proper GRAMA evaluative regimen, a
governmental entity must weigh competing interests in the first
instance. 	Here, the County took a contrary view, insisting that
GRAMA contemplated a preliminary review of the propriety of its
initial classification of the Floros report without weighing
interests. 	The County persuaded the district court to endorse
this view. 	Having rejected the County’s analytical approach, we
reverse the district court ruling based on it.
¶27 	We also conclude that the district court erred when it
concluded that the newspaper should be denied the Floros report
because its contents fell within the two GRAMA provisions cited
by the County to justify its classification: 	a clearly
unwarranted invasion of personal privacy and interference with an
investigation. 	Utah Code Ann. § 63-2-304(9)(a), (25) (2004).

5 GRAMA makes the privacy category available only for
records that have been “properly classified by a governmental
entity.” 	Utah Code Ann. § 63-2-302(2). 	This is a puzzling and
circular condition to impose on a record, the proper
classification of which depends upon whether its disclosure
constitutes a clearly unwarranted invasion of personal privacy.
The County suggests that “properly classified” contemplates a
“primary classification” process of the kind performed here.
Moreover, the County implies that GRAMA’s “properly classified”
language requires a court to first examine and defer to its
primary classification of the Floros report. 	While this
statutory language remains an enigma to us, we are satisfied that
it does not give us cause to defer to the County’s primary
classification of the Floros record.
11 	No. 20060454
A. 	The Floros Investigative Report Does Not Constitute a Clearly
Unwarranted Invasion of Personal Privacy
¶28 	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.
¶29 	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.” 	Id. § 63-2-302(2)(d). 5
¶30 	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. 	Id.
¶31 	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

6 Our interpretation of the phrase “clearly unwarranted
invasion of privacy” finds support in the United States Supreme
Court’s interpretation of identical language contained in the
federal Freedom of Information Act. 	E.g., U.S. Dep’t of State v.
Ray, 502 U.S. 164, 177 (1991) (“Although the interest in
protecting the privacy of the redacted information is
substantial, we must still consider the importance of the public
interest in its disclosure. 	For unless the invasion of privacy
is clearly unwarranted, the public interest in disclosure must
prevail.” (internal quotation marks omitted)).
No. 20060454 	12
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.” 	Id.
¶32 	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.
¶33 	As we observed above, a record may not be withheld
merely because its contents invade personal privacy. 	Instead,
the invasion must be clearly unwarranted. 	The presence of this
limiting provision inevitably calls on a governmental entity,
when classifying a record, to consider matters other than whether
and to what degree a record invades personal privacy. 	In the
realm of GRAMA, these other matters are nothing more or less than
the constitutional and public policy interests that GRAMA insists
be placed on the scales that weigh whether or not a record ought
to be made public. 	We therefore hold that section 63-2-302(2)(d)
necessarily demands an expansive and searching evaluation of the
interests that might make an invasion of personal privacy
warranted. 	We further hold that the district court erred when it
declined to gather and weigh relevant interests before accepting
the County’s classification of the 	Floros investigative record. 6
While the district court did not conduct a balancing of the
interests, the record before us is more than sufficient to
perform the task. 	We begin by examining the potential invasions
of personal privacy that might be suffered should the
investigative report be released.
¶34 	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

13 	No. 20060454
diminishes the risk of invading the personal privacy of
third-party witnesses.
¶35 	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.
¶36 	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.
¶37 	Unlike witnesses whose true names were not revealed in
the report, the report referred to Ms. Rice, Mr. Floros, and Ms.
Swensen by name. 	We do not consider, however, the disclosure of
their identities to amount to a clearly unwarranted invasion of
personal privacy.
¶38 	Ms. Rice cannot reasonably argue that the release of
the report would significantly implicate her personal privacy
interests. 	As the district court indicated, Ms. Rice made the
choice to disclose her identity and publicize the allegations
against Mr. Floros. 	Several publicly available documents,
including Ms. Rice’s complaint filed in federal court, contain
personal details of the same nature as the investigative report.
¶39 	As public officials, Mr. Floros and Ms. Swensen cannot
reasonably argue that release of the investigative report would
generally constitute a significant invasion of their personal
privacy. 	The accusations of misconduct contained in the
investigative report primarily pertain to the performance of
their official duties.

No. 20060454 	14
¶40 	The investigative report certainly contains personal
information that does not relate to official conduct, including
details of the origin and development of the relationship between
Ms. Rice and Mr. Floros. 	The release of this information may
well be invasive and even embarrassing. 	In our judgment,
however, the disclosure of this information to the public will
likely provide relevant context in which to fairly evaluate the
propriety of the official conduct of Mr. Floros and Ms. Swensen.
We therefore turn our attention to the County’s assertion that
the district court correctly concluded the report was a protected
record under section 63-2-304(9).
B. 	The Floros Investigative Report Does Not Qualify as a
“Protected” Record so as to Prevent Interference with an Ongoing
Investigation
¶41 	We are not persuaded that the Floros investigative
report merits classification as protected under the provision of
GRAMA that shields from public access records that “reasonably
could be expected to interfere with investigations undertaken for
enforcement, discipline, licensing, certification, or
registration purposes[] . . . [or] reasonably could be expected
to interfere with audits, disciplinary, or enforcement
proceedings.” 	Utah Code Ann. § 63-2-304(9)(a)-(b) (Supp. 2007).
We therefore part company with the district court’s adoption of
the County’s argument that a goal of these provisions is the
preservation of the integrity of future sexual harassment
investigations, not just the Floros investigation, which had been
completed by the time the newspaper requested the record. 	While
the district court read GRAMA to justify restricting access to
the report on this ground, we draw a different lesson from
GRAMA’s text.
¶42 	Apart from section 63-2-304(9)(a), GRAMA addresses the
subject of investigations in one other provision. 	Section 63-2-
302(1)(e) classifies as “private”
records received or generated for a Senate
confirmation committee concerning character,
professional competence, or physical or
mental health of an individual:
(i) if prior to the meeting, the chair
of the committee determines release of
the records:
(A) reasonably could be expected to
interfere with the investigation
undertaken by the committee; or

15 	No. 20060454
(B) would create a danger of
depriving a person of a right to a
fair proceeding or impartial
hearing; and
(ii) after the meeting, if the meeting
was closed to the public.
Id. § 63-2-302(1)(e).
¶43 	This section of GRAMA governing the classification of
investigations conducted in connection with Senate confirmation
hearings tracks closely the classification standards for
investigations conducted by other governmental entities cited by
the County and the district court. 	It is clear to us that the
text of section 63-2-302(1)(e) contemplates an evaluation for
potential risk of interference with the investigation at hand--
“the investigation undertaken by the committee”--and not future
confirmation investigations. 	The only way in which section 63-2-
304(9)’s treatment of investigations differs from section 63-2-
302(1)(e) is in its use of the plural “investigations.”
¶44 	As used in this section, “investigations” may be
interpreted in two ways. 	When interpreted in a temporal sense,
the word “investigations” imparts an intention to apply the
statutory provision to investigations of the same type conducted
in the future. 	This is the County’s preferred interpretation and
the one that the district court adopted. 	We find this
interpretation to be in conflict, however, with the unambiguous
language of section 63-2-302(1)(e) that limits application of
record disclosure to the particular investigation to which the
record relates. 	We adopt, therefore, the second and correct
interpretation of “investigations,” one that limits the
possibility of interference to a then ongoing investigation
undertaken for one of the five named purposes. 	It is the need to
account for these multiple purposes for investigations that the
plural form is used, not multiple future investigations.
¶45 	Our textual interpretation is consistent with that of
courts that have confronted and turned back identical alternate
readings of “investigations” provisions. 	The clearest expression
of the low regard in which the County’s interpretation of the
“investigations” is held appears in Badran v. United States
Department of Justice, 652 F. Supp. 1437 (N.D. Ill. 1987), a case
brought under the Freedom of Information Act. 	There, the
district court rejected as “bewildering and indefensible” the
government’s efforts to restrict a woman’s access to the
documents in her immigration file because production might
interfere with enforcement proceedings “against a person who

No. 20060454 	16
might some day violate immigration laws.” 	Id. at 1440. 	As the
court reasoned,
An agency may not assert the “enforcement
proceedings” exception to the FOIA [under 5
U.S.C. § 552(b)(7)(A)] “when there is no
enforcement proceeding then pending or
contemplated.” 	No court has ever held to the
contrary. 	If an agency could withhold
information whenever it could imagine
circumstances where the information might
have some bearing on some hypothetical
enforcement proceeding, the FOIA would be
meaningless; all information could fall into
that category.
Id. (citations omitted) (quoting Coastal States Gas Corp. v.
Dep’t of Energy, 617 F.2d 854, 870 (D.C. Cir. 1980)).
¶46 	Having been stripped of the statutory justifications
advanced by the County and accepted by the district court for
classifying the Floros investigation report as nonpublic, the
report has acquired a public classification by default. 	Although
we could end our inquiry at this point, we take time to note that
the report earned its public status not solely because it did not
meet the stated grounds for nonpublic designation but also
because of the presence of significant, legitimate public
interests favoring its disclosure. 	We now turn our attention to
them.
V. 	THE PUBLIC INTEREST IS BEST SERVED BY DISCLOSING THE FLOROS
INVESTIGATIVE REPORT
¶47 	The Floros investigative report includes detailed
findings concerning Mr. Floros’s inappropriate sexual behavior.
The contents of the report also fairly communicate to the
objective reader, albeit by inference, a genuine question about
the propriety of the manner in which Salt Lake County officials
monitored their workplace and responded to evidence of sexual
misconduct. 	We agree with the Deseret Morning News that the
investigative report provides a window, opaque as that window may
be, into the conduct of public officials that is not available by
other means, including the summary report.
¶48 	Cases from other jurisdictions lend support to the
conclusion that the legitimate public interest in information
regarding a public official’s misconduct may outweigh the
official’s interest in preserving personal privacy. 	In Local

17 	No. 20060454
2489, AFSCME v. Rock County, 2004 WI App 210, 277 Wis. 2d 208,
689 N.W.2d 644, thirteen employees of the Rock County Sheriff’s
Office, who were disciplined for viewing “inappropriate images”
on work computers, sought to prevent the release of “copies of
reports generated by . . . [the] investigations.” 	Id. ¶ 5. 	The
employees argued that the Janesville Gazette should be denied
access to the records, in part, because the public interest in
“protecting the privacy and reputations of the employees”
outweighed the public interest in disclosure. 	Id. ¶ 27.
¶49 	Although Wisconsin’s records access statute is
different from ours, we find the Wisconsin court’s discussion of
the privacy rights of public employees useful. 	The court said,
“[Though] the public’s interest in not injuring the reputations
of public employees must be given due consideration, . . . it is
not controlling. 	When individuals become public employees, they
necessarily give up certain privacy rights and are subject to a
degree of public scrutiny.” 	Id. ¶ 26. 	This is especially true
when the “misconduct . . . ‘allegedly occurred in the location
where the public has entrusted [the employees] to work and during
the performance of [their] public duties, and therefore should be
more subject to public scrutiny.’” 	Id. ¶ 27 (quoting Linzmeyer
v. Forcey, 2002 WI 84, ¶ 28, 254 Wis. 2d 306, 646 N.W.2d 811
(alterations in original)). 	The Wisconsin court rejected efforts
to keep the records private. 	It ordered the release of the
records with the proviso that the names of the disciplined
employees be redacted. 	Id. ¶ 27.
¶50 	The Montana Supreme Court reached a similar conclusion
in a case that involved allegations of sexual harassment and
discrimination by a city mayor. 	Citizens to Recall Mayor James
Whitlock v. Whitlock, 844 P.2d 74 (Mont. 1992). 	Although we note
that the court considered the case in the context of Montana’s
constitutional right to privacy rather than a records access
statute, we find the facts and larger policy considerations
helpful.
¶51 	The city retained an independent investigator to
prepare a report about the mayor for the city council following
allegations of the mayor’s misconduct. 	Id. at 76. 	After a group
of citizens sought release of the report, the council refused to
do so because the mayor had invoked his right to privacy. 	Id.
The Montana court disagreed and held that the citizens group
should be able to access the report. 	Id. at 79. 	The court
concluded that the mayor’s expectation of personal privacy with
regard to the report was unreasonable because he

No. 20060454 	18
is an elected official and as such is
properly subject to public scrutiny in the
performance of his duties. . . . 	When a
person is elected to public office, the
general public has . . . [the] right to be
informed of the actions and conduct of their
elected officials. . . . 	[T]he sexual
harassment allegations against [the mayor] go
directly to the mayor’s, and another
government official’s, abilities to properly
carry out their duties. 	Information related
to the ability to perform public duties
should not be withheld from public scrutiny.
. . . .
. . . 	[P]ublic officials cannot
reasonably have as great an expectation of
privacy as individuals who are not public
servants.
Id. at 77-78. 	Moreover, the court concluded that “society will
not permit complete privacy and unaccountability when an elected
official is accused of sexually harassing public employees or of
other misconduct related to the performance of his official
duties.” 	Id. at 78.
¶52 	Like Montana and Wisconsin, we believe that the public
interest in governmental accountability will often prevail over
the interest of insulating an official from unwanted intrusion
into sexually related conduct. 	The legitimate public interest in
the release of the Floros investigative report provides a
separate and significant basis for releasing it.
CONCLUSION
¶53 	We conclude that government records are presumptively
public under GRAMA, and thus, the County bears the burden of
proving that it properly classified the investigative report as
nonpublic. 	We hold that the County did not properly classify the
investigative report as a private record under section 63-2-
302(2)(d) because the public interest in the record’s release
outweighs the potential personal privacy intrusion suffered. 	We
further hold that the County did not properly classify the
investigative report as a protected record under section 63-2-
304(9), an exception that should properly extend only to
reasonably expected investigations rather than hypothetical ones.

19 	No. 20060454
Finally, we find legitimate public interest in releasing the
report. 	Reversed and remanded.
---
¶54 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.