State Records Committee Appeal 06-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

THE ST. GEORGE SPECTRUM, Appellant, vs.
WASHINGTON CITY, Appellee.

DECISION AND ORDER
Case No. 06-03

STATEMENT OF THE CASE

On April 5, 2006, Jill Hunt, a reporter for The St. George Spectrum requested from Washington City records described as "All lawyers fees that were and are associated with the Cloud Moving and Storage vs. Washington City lawsuit." Washington City asserted that these records were protected under Utah Code 63-2-304(16), (17) and (18) and denied the request. Washington City later provided The Spectrum with the total amount of attorney fees paid in the case, but provided no records. In its appeal to the City Manager, The Spectrum requested records documenting the amounts the City has paid in legal fees and costs in connection with the Cloud litigation under Utah Code 63-2-301(2)(e). The Spectrum expressly disavowed any request for privileged or otherwise protected materials. On May 19, 2006, through its counsel, Washington City again denied the request. On May 20, 2006, The Spectrum appealed to the State Records Committee.

On June 29, 2006, Washington City's counsel informed the Committee that except for records showing lawyer fees paid by the City's liability insurance carrier, the City provided to The Spectrum the requested records. Privileged and otherwise protected materials were redacted. As to the records not provided, Washington City claimed that it did not possess the records, had not received copies of the records and was not required to maintain such records by law or for accounting or audit purposes. Washington City stated "Thus, the City has complied with the Spectrum's Government Records Access and Management Act ("GRAMA") request and has provided all of the records that it has reflecting lawyer fees it has spent or paid in relation to the Litigation. All other records are in the possession of its insurance carrier."

At the July 13, 2006 hearing before the Committee, The Spectrum acknowledged receipt of the records described in Washington City's June 29, 2006 letter. However, The Spectrum contends it is entitled also to records documenting the legal fees paid in the Cloud litigation by the insurance carrier claiming that these records also are Washington City's records. The Spectrum contends that the insurance carrier retained the same law firm that worked directly for the City. The Spectrum contends it is entitled to documents of the amount of public funds paid in the litigation. The Spectrum argues that Washington City has the right and should request the records from the insurance carrier. Furthermore, the Spectrum maintains that defense costs are records that the City must have available for audit and accounting purposes.

Washington City's counsel responded that the records are not in its possession or control and because the insurance carrier is not a governmental entity, the records are not government records. It therefore had no duty to disclose records pertaining to a private contract with the law firm. Washington City contends that the insurance carrier became the law firm's client, and assumed control of the litigation when the carrier assumed the defense of the Cloud litigation. Washington City contends it has no obligation to acquire records it does not receive in the usual course of business and does not have a duty to provide the records in response to a GRAMA request.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (GRAMA) specifies that a "record is public unless otherwise expressly provided by statute." Utah Code 63-2-201(2). Records that are not public are designated as either "private," "protected," or "controlled." Utah Code 63-2-302, 303 and 304. GRAMA is the Utah Legislature's effort to balance multiple interests relating to access to government records. For purposes of this case, the Spectrum and Washington City agree that governmental records of the legal fees and costs paid by Washington City in the Cloud litigation, exclusive of privileged or otherwise protected materials, are public records. The issue is whether the billing records from the City's defense counsel are government records.

2. A government record is one that is "prepared, owned, received, or retained by a governmental entity or political subdivision. . . ." Utah Code 63-2-103(19)(a)(i). This definition is not limited to documents in the possession or control of the governmental entity. Utah Code 63-2-301(3) states that the following records are normally public, but may be restricted for reasons not at issue here:
"(b) records documenting a contractor's or private provider's compliance with the terms of a contract with a governmental entity;
(c) records documenting the services provided by a contractor or a private provider to the extent the records would be public if prepared by the governmental entity;
(d) contracts entered into by a governmental entity; ..."

3. Washington City directly paid legal fees and costs for its defense in the Cloud litigation. Records documenting these payments are public. As to the remaining records, several facts are significant. First, the City's insurance carrier undertook the City's defense under a policy of insurance for which the City paid premiums. The insurance carrier then hired the same law firm, which regularly represents the City in other matters. Therefore, the Committee concludes that the City is the owner of these records. In addition, the records are public under Utah Code 63-2-301(3)(b) or (c).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of The Spectrum is granted 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 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 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 19th day of July, 2006.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chairperson
State Records Committee