State Records Committee Appeal Decision 2009-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CATHY MCKITRICK, REPORTER FOR THE SALT LAKE TRIBUNE, Petitioner, vs.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 09-14

By this appeal, Petitioner, Cathy McKitrick, Government Reporter for the Salt Lake Tribune (“Tribune”), seeks access to all correspondence between Utah Attorney General, Mark Shurtleff and U.S. Attorney General Eric Holder since January 1, 2009. Specifically, the Tribune is seeking access to a letter dated March 23, 2009 from Mr. Shurtleff to Mr. Holder regarding U.S. Attorney Brett Tolman.

FACTS

On or about June 15, 2009, Ms. McKitrick, on behalf of the Tribune, submitted a request for records to Respondent, the Utah Attorney General’s Office (“AG’s Office”) asking for the above referenced documents. On June 29, 2009, Paul Murphy responded to the request by providing some documents but denying access to the March 23, 2009 letter from Mr. Shurtleff to Mr. Holder. The Tribune appealed this denial and on July 16, 2009, Chief Deputy Attorney General, Raymond Hintze, denied the Tribune’s request pursuant to Utah Code Ann. § 63G-2-305(25).

The Tribune now appeals to the Utah State Record Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties including arguments submitted by third party intervener the U.S. Attorney Office, and having convened on September 10, 2009, a hearing to hear oral argument and testimony, 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, -304 and –305.

2. Records, other than personnel evaluations, that contain a personal recommendation concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal privacy, or disclosure is not in the public interest, are protected if properly classified by the governmental entity. Utah Code Ann. § 63G-2-305(25).

3. The AG’s Office argued that the letter requested by the Tribune contains “personal recommendations” because Mark Shurtleff in this letter makes certain recommendations as to actions U.S. Attorney General Holder could take with regard to U.S. Attorney, Brett Tolman. However, the regular meaning of “personal recommendations” seems to connote a positive recommendation concerning an individual based upon personal experience. The Committee is not convinced, nor was sufficient evidence presented after reviewing the March 23, 2009 letter, that Mr. Shurtleff was making a “personal recommendation” to Mr. Holder about Mr. Tolman.

4. Additionally, the AG’s Office further argued that as a result of Mr. Shurtleff’s letter to Mr. Holder, the vital relationship between the state and U.S. Attorney’s office would be damaged and release of the contents of the letter would not be in the “public interest.” However, simply because there is a perceived potential that release of the letter would damage the relationship between the AG’s Office and the U.S. Attorney’s Office, does not by itself outweigh the public’s constitutional right of access to information concerning the conduct of the public’s business. See, Utah Code Ann. § 63G-2-102(1)(a). It is the intent of the Legislature to specify those conditions under which the public interest in allowing restrictions on access to records may outweigh the public’s interest in access. Utah Code Ann. § 63G-2-102(3)(b). Therefore, the burden is placed upon the governmental entity to specify which section of GRAMA the Legislature specified allowing restrictions to access, or at the very least, demonstrate a general “public good” restricting access. See, Utah Code Ann. § 63G-2-102(2). We find that the AG’s Office has failed to meet its burden in this regard.

5. It was further argued that the release of the contents of the letter would clearly be an unwarranted invasion of Mr. Tolman’s personal privacy and, therefore, the contents of the record should be protected pursuant to Utah Code Ann. § 63G-2-305(25). However, even assuming the document contained a discussion of Mr. Tolman’s performance as a U.S. Attorney, because of the very public nature of his position as U.S. Attorney; it could be found that this information is in the public interest and not a clearly unwarranted invasion of his personal privacy.

6. After hearing argument and reviewing the materials submitted by the parties, and based upon a reading of the plain language of Utah Code Ann. § 63G-2-305(25), the Committee is not convinced Subsection –305(25) operates to make the record requested a protected document. Insufficient evidence was presented to demonstrate that the record was a “personal recommendation” or that the release of the contents of the record would be a “clearly unwarranted” invasion of privacy and/or not in the public interest.

7. The AG’s Office also argued that access should be restricted pursuant to Utah Code Ann. § 63G-2-201(3)(b), because the common law recognizes “executive privilege” and/or a “deliberative process privilege” for documents created within the executive branch of government. However, the cases proffered by the AG’s office supporting such position clearly predate the enactment of GRAMA. “[W]here a statute’s plain language or its structure and purpose demonstrate a legislative intent to preempt an area of the law, the statute becomes the only source of law in that area, and the development and application of common law principles necessarily ceases” Gottling v. P.R. Inc., 2002 UT 95, 61 P.3d 989, ¶ 8. An examination of the plain language and structure of GRAMA demonstrates the Utah Legislature’s intention to have GRAMA preempt this area of law. Although Utah Code Ann. § 63G-2-201(3)(b) and (6)(a) refer to the non-disclosure of a record pursuant to a “court rule,” the listing of “court rule” with state statutes, federal statutes, and federal regulations in these sections infers that the Legislature intended “court rules” to mean rules promulgated for the governance of courts and not the incorporation of common law court rulings into GRAMA. After hearing arguments by the parties, the Committee finds the plain language of Utah Code Ann. § 63G-2–201 to be clear in its intent and accordingly finds the AG Office’s argument unpersuasive in this matter.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Cathy McKitrick, Government Reporter for the Salt Lake Tribune is upheld and the office of the Utah Attorney General is hereby ordered to release said public record to Petitioner within ten (10) days. However, pursuant to Utah Code Ann. § 63G-2-303(1)(a)(ix) and § 63G-2-302(1)(g), the home address of U.S. Attorney General, Eric Holder shall be redacted prior to the release of said record.

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 governmental 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 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 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.

Dated this 17th day of September 2009.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee