State Records Committee Appeal 01-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ASSOCIATED PRESS Appellant, vs.

UTAH ATTORNEY GENERAL'S OFFICE, Appellee

DECISION AND ORDER
Case No. 01-02

By this appeal, the Associated Press seeks an order compelling the Utah Attorney General's Office to disclose "information gathered by the Attorney General during an investigation of the bidding for the 2002 Olympic Winter Games." Paul Foy represented the Associated Press. Assistant Attorney General Thom Roberts represented the Attorney General's Office. James Blanch represented certain intervening parties who provided information to the Attorney General's Office during the course of the investigation.

The State Records Committee, having reviewed the written materials submitted by the parties, and having heard oral argument and testimony on February 14 and 16, 2001, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISIONS

1. The Government Records Access and Management Act ("GRAMA") specifies that "[a]ll records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2)(1997).

2. GRAMA also provides that records properly classified as "protected" or otherwise "restricted pursuant to court rule, another state statute, federal statute, or federal regulation..." are not public. Utah Code Ann. 63-2-201(3)(1997).

3. Utah Code Ann. 63-2-403(11)(b) allows the Record Committee to disclose protected records where the "public interest favoring access outweighs the interest favoring restriction of access" after "consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure...." Id; see also Utah Code Ann. 63-2-202(9)(b)(1997).

4. The Attorney General's Office has classified its investigative files regarding bidding for the 2002 Winter Olympic Games as "protected" and bases its denial on that classification. Therefore, the threshold question before us is whether that classification is proper. After considering the evidence and argument of the parties, the Record Committee finds that the Attorney General's Office has properly classified the investigation file as a protected record under Utah Code Ann. 63-2-304(9)(Supp. 2000).

5. The remaining issue before us is whether, after "consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure," the public interest favoring access outweighs the interest favoring restriction of access. See Utah Code Ann. 63-3-403(11)(b)(Supp. 2000).

6. Under the specific facts of this case, the Record Committee is persuaded that the public interest favoring access outweighs the interests favoring restriction of access. Therefore, the requested records should be disclosed to the Associated Press under the following conditions. First, all records to which access is restricted pursuant to a court order, court rule or other law may only be disclosed in accordance with that order, rule or law. Second, the Attorney General is specifically authorized to redact or limit the disclosure of records that would disclose the identity of persons who furnished information to a law enforcement officer relating to, or assisting in, the investigation of bidding for the 2002 Winter Olympics. See Utah R. Evid. 505(2000)("The government has a privilege to refuse to disclose the identity of an informer.").

7. It is the Committee's understanding that counsel for the intervenors will have the opportunity to review the documents the Attorney General plans to disclose prior to disclosure so that he may have the opportunity to assert his client's privacy interests.

ORDER

WHEREFORE, it is ordered that the Associated Press' appeal is granted under the conditions set forth herein.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the 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 the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-402 and -404(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 21st day of February, 2001.

BY THE STATE RECORDS COMMITTEE

Cherie Willis, Chairperson
State Records Committee