State Records Committee Appeal 2007-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARK HAIK, Petitioner, vs.

TOWN OF ALTA, Respondent.

DECISION AND ORDER

Case No. 07-08

By this appeal, Mark Haik seeks access to records of the Town of Alta, specifically the tape of the closed meeting held on December 14, 2006, and any public records pertaining to pending or reasonably imminent litigation which was the basis for the closed meeting. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on May 31, 2007, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

The Government Records Access and Management Act ("GRAMA") 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. The Town of Alta denied Mr. Haik the records he seeks on the grounds that Attorney Client Privilege protects the documents and the documents created in anticipation of reasonably imminent litigation and are therefore classified as "protected" pursuant to Utah Code Ann. 63-2-304(16) and (17).

The Committee is persuaded that the Town of Alta has failed to properly identify and/or produce the records requested by Haik or in the alternative provide notice to Haik including a description of the records or portion of records exempt from disclosure and citations as to authority for denial pursuant to Utah Code Ann. 63-2-204 and 205. The Town of Alta has not definitively identified what records exist and are maintained by the Town that may be responsive to Mr. Haik's request.

The Committee is also persuaded it does not have authority to order the release of the tape recording of the closed meeting held by the Town of Alta on December 14, 2006.

The Town of Alta has therefore failed to show that the requested public records pertaining to pending or reasonably imminent litigation which was the basis for the closed meeting sought by Haik are properly classified as "protected" under Utah Code Ann. 63-2-304(16) and (17).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Mark Haik is affirmed in part as it relates to 205. The Town of Alta is hereby directed per Utah Code Ann. 63-2-204 and 205 to within ten (10) days of receipt of this Order, identify and produce to the Committee for in camera review all documents and/or records, to the extent that there are documents or records that may be responsive to the request made by Mr. Haik for any public records pertaining to pending or reasonably imminent litigation which was the basis for the closed meeting. Said documents or records must be classified, and the Town of Alta shall identify any withheld documents with reasonable specificity and provide citation authority to GRAMA as to reasons for withholding or denying any records to Mr. Haik. The identification and reasons for withholding or denying the records shall be provided to Mr. Haik and to the State Records Committee. The Town of Alta and Mr. Haik shall appear before the State Records committee on July 26, 2007 at 11:00 a.m. for further proceedings. The Town of Alta shall bring the disputed records to the proceedings to allow for in camera review pursuant to Utah Code Ann. 63-2-403(9)(a).

The Committee denies the portion of the appeal of Mark Haik seeking the release of the taped recording of the closed meeting held by the Town of Alta on December 14, 2006.

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)(d), the government entity herein shall comply with the order of the 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 Committee may do either or both of the following: (a) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (b) 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 and entities.

Entered this 7th day of June 2007.

BY THE STATE RECORDS COMMITTEE

Carl Albrect, Chairperson
State Records Committee