State Records Committee Appeal 02-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRENT POLL, Appellant, vs.

SOUTH WEBER CITY, Appellee.

Case No. 02-07

DECISION AND ORDER

By this appeal, Brent Poll seeks access to the legal opinions of South Weber City's attorney concerning a proposal regarding 1375 East and the City's decision regarding that proposal. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on July 10, 2002, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act ("GRAMA") specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. Sec. 63-2-201(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. Sec. 63-2-201(3). Respondent denied Mr. Poll the records he seeks on the grounds that the legal opinions of its attorney are protected records privileged from disclosure under Utah Code Ann. Secs. 63-2-201, 63-2-304 and 78-24-8.

2. The Committee finds that the records in question are properly classified as protected and privileged from disclosure as confidential attorney-client communications. The attorney client privilege "is intended to encourage candor between attorney and client and promote the best possible representation of the client." Doe v. Maret, 984 P.2d 980, 982 (Utah 1999). Indeed, "[i]t is the oldest of the common law privileges protecting confidential communications." Id. The privilege is recognized in Rule 504 the Rules of Evidence as well as by statute at Utah Code Ann. Secs. 63-2-304(18)⁽¹⁾ and 78 24 8(2) (1996)⁽²⁾. The general rule is set forth in subsection (b) of Rule 504. This provision states:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, and among the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, in any combination. Id.

3. In the present case, the Committee has reviewed the subject documents in-camera. Our review confirms that the documents in question are communications from an attorney to a client, that were intended to be confidential, that contain "informed legal advice . . . which might not have been [given] absent the privilege." See Gold Standard, Inc. v. American Barrick Resources (USA), Inc., 801 P.2d 909 (Utah 1990). Therefore, these records are properly classified as protected.

4. Furthermore, after consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or non-disclosure, the Committee finds that the public interests favoring access are not outweighed by the interests favoring restriction of access. See Utah Code Ann. Secs. 63-2-403(11)(b) and 63-2-202(9)(b).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Mr. Poll is denied. Respondent's determination regarding the classification of these records as protected is affirmed.

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 Utah Code Ann. Sec. 63-2-404. 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.⁽³⁾

Entered this 15th day of July, 2002.

BY THE STATE RECORDS COMMITTEE

Cherie Willis, Chairperson
State Records Committee

FOOTNOTES

1. Utah Code Ann. Sec. 63-2-304(18) provides as follows: The following records are protected if properly classified by a governmental entity: . . . . (18) records of communications between a governmental entity and an attorney representing, retained, or employed by the governmental entity if the communications would be privileged as provided in Section 78-24-8 . . .

2. Utah Code Ann. Sec. 78-24-3(2) states in relevant part: An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him or his advice given regarding the communication in the course of his professional employment. An attorney's secretary, stenographer, or clerk cannot be examined, without the consent of his employer, concerning any fact, the knowledge of which has been acquired in his capacity as an employee. The Evidence Advisory Committee notes that Rule 504 was intended to replace and supersede Utah Code Ann. Sec. 78 24 8(2). This statute, however, was relied upon by the Utah Supreme Court in the Maret case and remains a qualifying factor in Utah Code Ann. Sec. 63-2-304(18).

3. This notice is required by Utah Code Ann. Sec. 63-2-403(12)(d).