State Records Committee Appeal 01-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

U.S. CHAMBER OF COMMERCE and U.S. CHAMBER INSTITUTE FOR LEGAL REFORM, Appellant, vs.

UTAH ATTORNEY GENERAL'S OFFICE, Appellee.

DECISION AND ORDER
Case No. 01-06

By this appeal, Appellants seek an order compelling the Utah Attorney General's Office to disclose certain documents pertaining to the selection of outside counsel to represent the State of Utah in tobacco litigation. These documents fall into three categories: (1) proposals submitted by outside counsel; (2) two internal office memoranda concerning the proposals; and (3) a "Briefing to Legislative Leadership re: Tobacco Litigation." Stephanie Kanwit of Epstein Becker & Green, P.C. represented Appellants. Assistant Attorney General Joel Ferre represented the Utah Attorney General's Office.

The State Records Committee, having reviewed the written materials submitted by the parties, and having heard oral argument and testimony on July 11, 2001, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

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).

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).

3. Utah Code Ann. 63-2-403(11)(b) allows the Records 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). The Attorney General's Office also has an administrative rule providing that "[a]ll information in all proposals, including the winning proposal, is and will remain closed from public inspection under R105-1-14 of this rule." Utah Admin Code. R. 105-1-6 and -14.

4. The Attorney General's Office has classified the requested records as "protected" and bases its denial on that determination. The Attorney General's Office also argues that the requested records are protected under the deliberative process privilege. Therefore, the threshold question before us is whether the records are properly classified as protected. After considering the evidence and argument of the parties, the Records Committee finds that the Attorney General's Office has incorrectly classified the proposals as protected. The Committee also finds that the remaining documents (i.e. the internal office memoranda and the legislative briefing) were properly classified.

5. Therefore, 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 non-disclosure," the public interest favoring access outweighs the interest favoring restriction of access. See Utah Code Ann. 63-2-403(11)(b). The Committee conducted an in camera review of the internal office memoranda and legislative briefing to make this determination.

6. Under the specific facts of this case, the Committee is persuaded that the significant public interest favoring access outweighs the interests favoring restriction of access. None of the requested records disclose information protected by the legal or statutory privileges asserted by the Attorney General's Office.

7. In making this determination, the Committee bases its decision, in part, on the fact that the tobacco litigation, which is the subject of these records, is no longer pending. It should be noted that litigation was pending when the parties submitted their briefs in this appeal.

8. The Committee is not persuaded that disclosure of these records "would impair governmental procurement proceedings or give an unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity . . ." Finally, the Committee recognizes that the internal office memoranda was between the Solicitor General, an Assistant Utah Attorney General and a staff person working for the Attorney General's Office. It does not find their positions are a determinative factor, however, in deciding whether these records should be released. More significant is the overwhelming public interest in this matter and the fact that the documents in question fail to disclose "any legal strategies, theories or conclusions" of the Attorney General's Office or its staff. See Gold Standard, Inc. v. American Barrick Resources Corp., 801 P.2d 909 (Utah 1990).

ORDER

WHEREFORE, it is ordered that the appeal of U.S. Chamber of Commerce and U.S. Chamber Institute for Legal Reform is granted.

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 11th day of July, 2001.

BY THE STATE RECORDS COMMITTEE

Cherie Willis, Chairperson
State Records Committee