State Records Committee Appeal 00-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

WASATCH COUNTY COURIER, LLC, Appellant, vs.
WASATCH COUNTY, Appellee.

DECISION AND ORDER
Case No. 00-05

By this appeal, Wasatch County Courier, LLC, a newspaper, (hereinafter, the "Courier") seeks an order compelling Wasatch County (hereinafter, the "County") to allow it access to certain records that County officials have deemed "protected." At issue is the disclosure of billing records relating to payments by the County to outside counsel Joseph Dunbeck.

The State Records Committee, having reviewed the materials submitted by the parties, and having heard the oral argument and testimony of the parties on October 11, 2000, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act ("GRAMA") provides that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2) (2000).

2. GRAMA also provides that records that are "protected" are not public. Utah Code Ann. 63-2-201(3) (2000).

3. The County has classified Mr. Dunbeck's attorney billing statements as protected records under GRAMA. See Wasatch County Resolution No. 00-05. The resolution classified "attorney billing statements as 'protected records' under GRAMA where the County is involved in pending or ongoing litigation . . . ."

4. "Pending" or "ongoing" litigation is defined in this resolution as covering the following circumstances: A. A "Notice of Claim" or a "Notice of Intent to Commence Action" has been submitted to the County pursuant to Title 63, Chapter 30 of the Utah Code or an action has been filed in a court of law; and B. The litigation has not been settled or adjudicated and the time periods for appealing, modifying or otherwise vacating the settlement or adjudication have not expired. Id.

5. On or about May 10, 2000, the county clerk provided the materials in the County's possession as requested in the Courier's GRAMA request, with the exception of Joseph Dunbeck's attorney billing statements to the County as to ongoing litigation.

6. The newspaper does not have any relationship with the parties described in the billing records they seek.

7. The Committee finds that Utah Code Ann. 63-2-307 (Segregation of records), is applicable to the Courier's records request. This provision states, that "[n]otwithstanding any other provision of this chapter, if a governmental entity receives a request for access to a record that contains both information that the requester is entitled to inspect and information that the requester is not entitled to inspect under this chapter, . . . the governmental entity: (1) shall allow access to information in the record that the requester is entitled to inspect under this chapter . . . ."

8. Having considered argument by the County that Utah Code Ann. 63-2-304 (16) - (18) governs disclosure of these records, the Committee is not persuaded that those provisions are applicable to all data elements in the requested billing statements.

9. Furthermore, the Committee finds the Utah Supreme Court's decision in Gold Standard, Inc. v. American Barrick Resources Corp., 801 P.2d 909 (Utah 1990) applies to this case. In that decision, the Utah Supreme Court held that a letter from a corporate client to its attorney which merely outlined a fee agreement was not a privileged communication. It based this decision on the fact that "[t]he letter [did] not contain any legal strategies, theories or conclusions of appellees or their attorneys designed to assist in litigation brought by Gold Standard." Gold Standard, 801 P.2d at 911.

10. Based on the foregoing authority, the Committee finds that the County's classification of the following data elements in Mr. Dunbeck's billing statements as protected was improper: (1) the name of the case, (2) the date of the invoice, (3) the date range for which the services were rendered, (4) the general description of services rendered (e.g. legal research, telephone call, etc.), excluding the precise object or subject matter of those general services, (5) the summary of hours of legal services rendered during the period covered by the invoice, and (6) the total amount billed during that period. The County is specifically authorized to redact: (1) specific dates and the number of hours of service rendered on particular dates, (2) details regarding the subject matter of legal research, (3) the names of people spoken to and the subject matter of the conversation, (4) details regarding the subject matter of any other activity, and (5) any other items that would "disclose the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation."

11. The Committee finds that the County's decision to disclose billing statements in an unredacted form after underlying litigation has concluded has no relevance to the legal issues currently before it.

12. In addition to the authority cited above, the Committee bases its decision on the Legislature's recognition of the public's constitutional "right of access to information concerning the conduct of the public's business," the intent of the GRAMA act to "promote the public's right of easy and reasonable access to unrestricted public records," and to "favor public access when . . . countervailing interests are of equal weight." Utah Code Ann. 63-2-102 (2000).

ORDER

WHEREFORE, IT IS ORDERED THAT the decision of Wasatch County to deny Appellant access to the data elements of Mr. Dunbeck's billing statements identified above is reversed and the appeal granted as outlined above.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 and -502(7) (2000). The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

Entered this 16th day of October, 2000.

BY THE STATE RECORDS COMMITTEE

Betsy L. Ross, Chairperson
State Records Committee