State Records Committee Appeal 2008-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JIM GARSIDE, Petitioner, vs.

SALT LAKE CITY CORPORATION, Respondent.

DECISION AND ORDER

Case No. 08-16

By this appeal, Jim Garside seeks access to a joint defense agreement (“agreement”) between Salt Lake City Corporation (“SLC”) and Big Cottonwood Lower Canal Company (“Lower Canal”).

FACTS

On June 2, 2008, Mr. Garside made a request of the Salt Lake City Public Utilities Department pursuant to the Government Records Access and Management Act. Mr. Garside requested a “copy of the confidential Joint Defense Agreement contract #51-1-05-1320 between Salt Lake City and Lower Canal against one shareholder of Lower Canal under which $7,000 was paid by the City to Lower Canal.” SLC did not produce the agreement stating that the record was not subject to disclosure pursuant to Utah Code Ann. § 63G-2-305(16). Mr. Garside appealed the decision to the Salt Lake City Record Appeals Board (“Appeals Board’) who considered the appeal on July 8, 2008.

In a letter dated July 9, 2008, Christine Meeker, Acting City Recorder for SLC, stated that the Appeals Board unanimously found “that the requested record satisfied the provisions of U.C.A. Section 63G-2-305(16) and is therefore properly classified as a protected document because it was prepared by a governmental entity solely in anticipation of litigation and was not otherwise available under the rules of discovery.” On August 18, 2008, Mr. Garside appealed SLC’s denial to the State Records Committee (“Committee”). Having reviewed the materials submitted by the parties and having heard oral argument and testimony on October 9, 2008, the Committee 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. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303 and -304.

2. Records prepared by or on behalf of a governmental entity solely in anticipation of litigation that are not available under the rules of discovery are considered protected records if properly classified by a governmental entity. See, Utah Code Ann. § 63G-2-305(16).

3. After hearing arguments from both parties and reviewing the agreement in camera, the Committee finds that the agreement is a protected record pursuant to Utah Code Ann. § 63G-2-305(16). The agreement is a joint defense agreement that was prepared solely in anticipation of litigation and no evidence was presented that the agreement would be available under the rules of discovery.

ORDER

THEREFORE, IT IS ORDERED THAT the determination of the Salt Lake City Corporation is upheld pursuant to Utah Code Ann. § 63G-2-305(16), and the appeal of Jim Garside is denied.

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. § 63G-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. § 63G-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: (1) a notice of compliance with the records committee upon production of the records; or (2) 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: (1) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) 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 entities.

Entered this 16th day of October 2008.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson pro tem
State Records Committee