State Records Committee Appeal 04-04

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SOUTHERN UTAH WILDERNESS ALLIANCE and the WILDERNESS SOCIETY, Appellants, vs.

UTAH STATE ATTORNEY GENERAL, Appellee.

DECISION AND ORDER

Case No. 04-04

By this appeal, the Southern Utah Wilderness Alliance and the Wilderness Society (collectively SUWA), Appellants, seek an order compelling the Utah State Attorney General's Office to disclose the records requested pursuant to Appellants' GRAMA request dated 2 January 2004 for "records concerning potential applications for recordable disclaimers of interest for alleged R.S. 2477 rights of way." Joro Walker represented the Appellants, SUWA. Assistant Attorney General Ralph L. Finlayson represented the Attorney General's Office.

The State Records Committee, having reviewed the written materials submitted by the parties, and having heard oral argument on 20 May 2004, 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) (1997).

2. GRAMA also provides that records properly classified as "private, controlled, or 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) (Supp. 2003).

3. Section 63-2-403(11)(b) allows the Records Committee, after "consideration and weighing of the various interests and public policies pertinent to the classification" to order disclosure "of information properly classified as private, controlled, or protected if the public interest favoring access outweighs the interest favoring restriction of access." Utah Code Ann. 63-2-403(11)(b) (1997); see also Utah Code Ann. 63-2-202(9)(b) (1997).

4. The Attorney General's Office has classified the requested records as "protected" and based its denial on that determination. Therefore, the threshold question before the Committee is whether that classification is proper. Upon considering the evidence and argument of the parties, the Records Committee finds that the Attorney General's Office has properly classified the subject records as "protected" records under Section 63-2-304 (1997), and more particularly pursuant to subsections -304(16), (17), (18), (33), (9)(a) and (e), and (22).

5. The remaining issue before the Committee 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. 63-2-403(11)(b). The Committee conducted an in camera review of representative documents to make this determination.

6. Under the specific facts of this case, the Records Committee is persuaded that the public interests favoring access outweigh the interests favoring restriction of access as to Items 1 and 2 of the original GRAMA request, as numerically denoted in Appellants' and Appellee's briefs. But the interests favoring restriction of access as to the remaining Items 3 and 4 prevail and access to materials relative to Items 3 and 4, as numerically denoted in parties' briefs, is denied.

7. From evidence presented at the hearing, the Committee finds that from a large database of roads and supporting documentation, the state identified twenty (20) roads for action, placing documents and information for those specified roads on the state's R.S. 2477 website. The Committee is persuaded that by the state's actions, the public access to otherwise properly classified protected documents is necessary for public discussion to occur on the status of the roads identified for action. The interests in access as to the twenty (20) roads identified on the state's website, and referenced herein and in the parties' briefs as Items 1 and 2, are diverse which on balance outweigh the interests favoring restriction of access.

8. a. The original GRAMA request Item 1 states as follows and access is granted:

Establishment, construction, maintenance, use, existence, extent, nature, termini, or any other information concerning the 20 routes identified on the State of Utah's website (http://www.rs2477.utah.gov/Applications.htm) for which the State says it intends to apply for recordable disclaimers of interest for R.S. 2477 rights-of-way pursuant to 43 C.F.R. subpart 1864 and the Utah-Interior Memorandum of Understanding signed April 9, 2003. (Emphasis in original.)

b. The original GRAMA request Item 2 states as follows and access is granted:

[T]he withdrawal or reservation of the lands underlying the routes identified above.

c. The original GRAMA request Item 3 states as follows and access is denied:

Any other records concerning any other potential applications for disclaimers pursuant to 43 C.F.R. subpart 1864 and the Utah-Interior Memorandum of Understanding signed April 9, 2003 generated, modified or acquired by the Office of the Governor since April 9, 2003.

d. The original GRAMA request Item 4 states as follows and access is denied:

All documents (including calendars and notes) which refer or relate to written or verbal communications between representatives of the State of Utah on the one hand and representatives of the Department of Interior (including the BLM) on the other at which 1) potential RS 2477 claims by the State of Utah counties were discussed; and 2) the standards for determining whether a claim satisfied RS 2477 were discussed.

ORDER

WHEREFORE, it is ordered that the appeal by the Southern Utah Wilderness Alliance and the Wilderness Society is granted in part and denied in part for the reasons set forth above.

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 (1997). 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 25th day of May 2004.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chairperson
State Records Committee