State Records Committee Appeal 2008-20

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

UTAH FEDERAL DEFENDER OFFICE, Petitioner, vs.

MARK L. SHURTLEFF, Utah Attorney General, CRIMINAL APPEALS DIVISION, Utah Attorney General’s Office, Respondent.

DECISION AND ORDER

Case No. 08-20

By this appeal, Utah Federal Defender Office seeks access to records of communications between the Utah Division of Finance and Criminal Appeals Division of the Utah Attorney General’s Office.

FACTS

On July 1, 2008 Utah Federal Defender Office made a request of Mark Shurtleff, Utah Attorney General, pursuant to the Governmental Record Access Management Act. Utah Federal Defender Office requested “all records of all communications between the Utah Division of Finance and the Division of the Utah Attorney General’s Office over Capital Habeas Appeals, Post Conviction Appeals, and any other matter related to capital/post conviction proceedings.” By letter dated August 27, 2008, Assistant Attorney General Brett J. DelPorto denied the request saying the record was not subject to disclosure pursuant to Utah Code § § 63G-2-305(17) and (18), in that they were attorney/client communications and attorney work product. Utah Federal Defender Office appealed the decision to Attorney General Mark Shurtleff on September 26, 2008.
By letter dated October 5, 2008, Chief Deputy Attorney General Kirk Torgensen, on behalf of Mark Shurtleff, denied the appeal. That letter indicated that the requested records were protected pursuant to Utah Code § 63G-2-305(17) and (18).

By letter dated November 4, 2008, Utah Federal Defender Office appealed Attorney General Mark Shurtleff’s denial to the State Records Committee (Committee). Having reviewed the materials submitted by the parties, including the third party presenter Division of Finance, and having heard argument on December 11, 2008, and having continued the hearing to allow complete submission of the disputed records, and the Committee having reviewed the records in camera, 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 and records disclosing an attorney’s work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation, are considered protected records if properly classified by governmental entity. Utah Code Ann. § 63G-2-305(16) and (17), Southern Utah Wilderness Alliance v. Automated Geographic Reference Center, 2008 UT 88, (December 23, 2008). Records of communications between a governmental entity and an attorney representing, retained, or employed by the governmental entity, if the communications would be privileged as provided in § 78B-1-137, are considered protected records if properly classified by a governmental entity. Utah Code Ann. § 63G-2-305(18), Southern Utah Wilderness Alliance, Id.

3. Based upon the arguments of the parties and review of the records in camera, we find no unity of interest between the Division of Finance (and its lawyers in the Attorney General’s Office) and the lawyers in the Criminal Appeals Division of the Attorney General’s Office and, in fact, we find actual or potential conflicts between them. The Attorney General’s Office failed to meet its burden that these records were properly classified as “protected” pursuant to Utah Code § 63G-2-305(16), (17), or (18), involving attorney/client communications and attorney work product.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Utah Federal Defender Office is granted, the classification of these records by Respondent Mark Shurtleff, Utah Attorney General
pursuant to Utah Code § 63G-2-305(16), (17), or (18), is reversed, and the records are public and shall be produced by the Respondent to the Utah Federal Defender Office.

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 15th day of January, 2009

BY THE STATE RECORDS COMMITTEE

____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee