State Records Committee Appeal Decision 2009-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

EVAN JOHNSON, Petitioner, vs.

SALT LAKE CITY DEPARTMENT OF PUBLIC UTILITIES, Respondent.

DECISION AND ORDER

Case No. 09-11

By this appeal, Petitioner Evan Johnson (“Johnson”) seeks access to un-redacted copies of general outsourced legal invoices from the Salt Lake City Department of Public Utilities.

FACTS

In a letter dated April 22, 2009, Johnson requested records from the Salt Lake City Department of Public Utilities (“Department”) pursuant to the Government Records Access Management Act. The records requested were copies of general outsourced legal invoices for the time period of January 1, 2000, through April 22, 2009.

On May 4, 2009, the Department responded by providing Johnson with approximately 518 legal invoices from private law firms. The legal invoices contained dates of service, amounts charged to the Department, and the identity of the law firm. However, subject matter and case identification entries were redacted from the invoices. A letter to Johnson dated May 4, 2009 from Department Director Jeffry T. Niermeyer accompanied the invoices. The letter stated that the redacted items were classified as protected under Utah Code Ann. § 63G-2-305(17) and (18) and access to the redacted portions of the records was denied.

Johnson appealed the Department’s response on the basis that the redacted information was not properly classified as protected records, and argued that the Department therefore, should produce un-redacted copies of the legal invoices. A hearing was held before the Mayor’s Record Appeals Board of Salt Lake City (“Appeals Board”) on June 11, 2009. The Appeals Board denied Johnson’s appeal.

Johnson now appeals the Department’s redaction of the legal invoices to the State Records Committee (“Committee”). The issue before the Committee is whether the redacted subject matter and case identification entries are “protected” records pursuant to Utah Code Ann. § 63G-2-305(16), (17) and (18). Having reviewed the materials submitted by the parties, including un-redacted legal invoices in camera, and having heard oral argument and testimony on August 13, 2009, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Government Records 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, -304, and -305.

2. Records are considered protected if properly classified by a governmental entity when the records: (1) Are prepared by or on behalf of a governmental entity solely in anticipation of litigation that are not available under the rules of discovery; (2) Disclose an attorney’s work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation; or (3) Consist 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 Utah Code Ann. § 78B-1-137. Utah Code Ann. § 63G-2-305(16), (17) and (18); S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, 200 P.3d 643.

3. Based upon the arguments of the parties and an in camera review of the records, we find that the redacted subject matter entries do not qualify as attorney work product under § 63G-2-305(16) or (17), nor as privileged communications as provided in Utah Code Ann. § 78B-1-137. Further, a review of the legal invoices showed that they do not contain legal advice, analysis or discussion of confidential or privileged communication between an attorney and a client that would meet the definition of attorney work product or be protected by attorney-client privilege. Accordingly, the Department failed to meet its burden that these records were properly classified as “protected” pursuant to Utah Code § 63G-2-305(16), (17) or (18).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Evan Johnson is granted, the classification of these records by the Salt Lake City Department of Public Utilities, pursuant to Utah Code § 63G-2-305(16), (17) and (18) is reversed, and the records are public and shall be produced by the Department to Evan Johnson.

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 governmental 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 governmental 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 24th day of August, 2009.
BY THE STATE RECORDS COMMITTEE

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SCOTT WHITTAKER, Chairperson
State Records Committee