State Records Committee Appeal 06-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SALT LAKE TRIBUNE, Appellant, vs.
GOVERNOR'S OFFICE OF ECONOMIC DEVELOPMENT, Appellee.
DECISION AND ORDER
Case No. 06-01

By this appeal, the Salt Lake Tribune challenges the Governor's Office of Economic Development's denial of access to the names of companies promised monetary incentives by the State of Utah, as well as e-mail correspondence between the GOED employees, GOED board members and company officials relating to these specific incentive awards. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on April 13, 2006, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act ("GRAMA"), Utah Code Ann. 63-2-101 to -1001 is the Utah Legislature's effort to balance multiple interests relating to access to government records. For purposes of this case, the critical statutory interests are "the public's right of access to information concerning the conduct of the public's business" and the Legislature's recognition of the public policy interest in "allowing a government to restrict access to certain records, as specified in [GRAMA] for the public good." Utah Code Ann. 63-2-102(1) and (2). The Committee is mindful of the Legislature's intent to "favor public access when, in the application of [the] act, countervailing interests are of equal weight." Utah Code Ann. 63-2-102(2)(e).

2. The Act specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). Records that are not public are designated as either "private," "protected," or "controlled." See Utah Code Ann. 63-2-302, -303 and -304. Properly classified protected records may only be released to the public under certain circumstances. See Utah Code Ann. 63-2-202(4).

3. The Governor's Office of Economic Development ("GOED") denied the Salt Lake Tribune ("Tribune") access to the records sought on the grounds that they were protected records. Specifially, GOED asserts the provisions of Utah Code Ann 63-2-304(2), -304(29) and -304(35) applied to this request. The key provisions relied upon by GOED state in relevant part:
The following records are protected if properly classified by a governmental entity:
. . . .
(2) commercial information or nonindividual financial information obtained from a person if:
(a) disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future;
(b) the person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and
(c) the person submitting the information has provided the governmental entity with the information specified in Section 63-2-308;
. . . .
(29) records of the governor's office, including budget recommendations, legislative proposals, and policy statements, that if disclosed would reveal the governor's contemplated policies or contemplated courses of action before the governor has implemented or rejected those policies or courses of action or made them public;
. . . .
(35) records that would reveal negotiations regarding assistance or incentives offered by or requested from a governmental entity for the purpose of encouraging a person to expand or locate a business in Utah, but only if disclosure would result in actual economic harm to the person or place the governmental entity at a competitive disadvantage, but this section may not be used to restrict access to a record evidencing a final contract;
Utah Code Ann. 63-2-304.

4. With regard to the Tribune's request for access to the names of companies promised monetary incentives for moving to the State of Utah, GOED provided evidence that release of names would likely cause some companies to withdraw from considering Utah as a potential business site. The Committee is thereby persuaded that release of names would place the state at a competitive disadvantage, and therefore, pursuant to Utah Code Ann. 63-2-304(35), that the Tribune's request should be denied.

5. Regarding the Tribune's request for access to e-mail correspondence between the GOED employees, GOED board members and company officials relating to the specific incentive awards, the Committee finds that the e-mails are public except to the extent that they contain information protected under Utah Code Ann. 63-2-304(2), which protects "commercial information," but also requires a written claim of business confidentiality. Therefore, to the extent that a written claim of business confidentiality exists, the Committee finds that commercial information within these e-mails is protected.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of the Salt Lake Tribune is denied in part and granted in part, as 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 Utah Code Ann. 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.

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 impose a civil penalty of up to $500 for each day of continuing noncompliance.

Entered this 18th day of April, 2006.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chairperson
State Records Committee