State Records Committee Appeal Decision 2013-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CEDAR HILLS CITIZENS FOR RESPONSIBLE GOVERNMENT, Petitioner, vs.

CITY OF CEDAR HILLS, Respondent.

DECISION AND ORDER

Case No. 13-02

By this appeal, Petitioner, Cedar Hills Citizens for Responsible Government, appeals the denial of a records request for complete copies of legal invoices for the City of Cedar Hills.

FACTS

On October 29, 2012, Ken Cromar, on behalf of Cedar Hills Citizens for Responsible Government (“Petitioner”), made the following records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to the City of Cedar Hills, (“Cedar Hills”):

Copy (electronic) of all billings since June 1, 2011 to date, for legal services from Peter Stirba and/ Stirba & Associates employees, and city attorney Eric Johnson and employees of Blaisdell & Church PC. Or any other legal service and cost per hour details please.

On November 13, 2012, the City Recorder for Cedar Hills produced redacted copies of the legal invoices pursuant to Utah Code § 63G-2-305(16). In response, Mr. Cromar filed an appeal with Cedar Hills claiming that the records were “incomplete” and claimed that the city “continues to withhold information.” In a letter dated December 11, 2012, David H. Bunker, City Manager/Engineer and Chief Administrative Officer for Cedar Hills, stated that the city would only provide redacted copies of the billing records because they contained “confidential communications” and that “[a]ttorney client communications are privileged from disclosure.”

Mr. Cromar filed an appeal on behalf of Petitioner with the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on February 14, 2013, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. With the enactment of GRAMA, the Utah Legislature recognized the constitutional right to the public’s right to access to information concerning the conduct of the public’s business and the public policy interest in allowing a government to restrict access to certain records as specified in GRAMA for the public good. Utah Code § 63G-2-102(1)(a) & (2).

3. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(16). Additionally, records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17).

4. Cedar Hills claimed that the redacted portions of the records were protected records (citing the SRC Order 2000-05 Wasatch County Courier vs. Wasatch County decision) because they included only: (1) specific dates and number of hours of service rendered on particular dates, (2) details regarding the subject matter of legal research, (3) the names of people spoken to and the subject matter of the conversation, (4) details regarding the subject matter of any other activity, or (5) any other items that would disclose the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation.

5. After reviewing the records in camera, the Committee determined that the redactions were proper pursuant to Utah Code § 63G-2-305(16) & (17). The redacted portions revealed information that was subject to the attorney client privilege and/or records prepared for or by an attorney or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Cedar Hills Citizens for Responsible Government 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 § 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 § 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 25th day of February 2013.

BY THE STATE RECORDS COMMITTEE

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LEX HEMPHILL, Chairperson
State Records Committee