State Records Committee Appeal 02-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL T. McCOY, Appellant, vs.

UTAH ATTORNEY GENERAL'S OFFICE, Appellee.

DECISION AND ORDER
Case No. 02-03

By this appeal, Appellant seeks an order compelling the Utah Attorney General's Office to disclose "copies of the contract or contracts between the State of Utah and/or the Utah Attorney General's Office and the law firm of Ray, Quinney & Nebeker together with any addendums, amendments, or modifications of the contract or contracts, in which the law firm ... agrees to provide legal representation in the cases styled Utah Education Association et al, vs. Michael Leavitt, et al., Salt Lake County Case No. 0190903586 and Utah Public Employees Association v. State of Utah, et al., Salt Lake County Case No. 010903293 both now consolidated under Case No. 010903293."

The State Records Committee, having reviewed the written materials submitted by the parties, and having heard oral argument and testimony on February 6, 2002, 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). GRAMA further provides that public contracts are "normally public" but access may be restricted to the extent that a record is expressly exempt from disclosure under Utah Code Ann. 63-2-301(2)(d), -201(3)(b), -302, -303 or -304. 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).

2. The Attorney General's Office 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.

3. Prior to the hearing, the Attorney General's Office classified the contract as "protected" and based its denial on that determination. During the hearing, counsel for the Attorney General narrowed the scope of the Attorney General's denial to a single paragraph in the contract at issue. See Utah Code 63-2-307 (describing standards for segregation of records). The Attorney General's Office argued, among other things, that the paragraph in question contained legal strategy and other information protected by the attorney-client privilege and other provisions of GRAMA. See Utah Code Ann. 63-2-304(16), (17), (18) and (23); Utah Code Ann. 78-24-8(2); and Utah R. Evid. 504.

4. Therefore, the only question before us is whether that paragraph is properly classified as a protected record. After an in-camera review of the paragraph in question, the Committee finds that the Attorney General's Office incorrectly classified the paragraph in question. It is the Committee's opinion that this paragraph does not contain protected "legal strategies, theories or conclusions" of an attorney and is not otherwise a protected record under the other authorities references above. See Gold Standard, Inc. v. American Barrick Resources Corp., 801 P.2d 909, 910 (Utah 1990). As the court in Gold Standard noted, "[r]etainer agreements are not generally protected by the attorney-client privilege. The items commonly contained in them, describing the external trappings of the attorney-client relationship, are not confidential." Id. Therefore, under Gold Standard and Utah Code 63-2-301(2)(d), the entire contract should have been classified as public.

ORDER

WHEREFORE, it is ordered that the appeal of Michael T. McCoy 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. 63-2-404 (2001). 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.

PENALTY NOTICE

Pursuant to Utah Code Ann. 63-2-403(14), the government entity herein shall comply with the order of the records committee and, if records are ordered to be produced, file: (i) a notice of compliance with the records committee upon production of the records; or (ii) a notice of intent to appeal. If the government entity fails to file a notice of compliance or a notice of intent to appeal, the Records Committee may do either or both of the following: impose a civil penalty of up to $500 for each day of continuing noncompliance or send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies entities.

Entered this 11th day of February, 2002.

BY THE STATE RECORDS COMMITTEE

Cherie Willis, Chairperson
State Records Committee