State Records Committee Decision 2013-10

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROBERT GEHRKE, REPORTER FOR THE SALT LAKE TRIBUNE, Petitioner, vs.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 13-10

By this appeal, Petitioner, Robert Gehrke, Reporter for The Salt Lake Tribune, seeks access to records from Respondent, the Utah Attorney General’s Office (AG’s Office), pursuant to Utah’s Government Records Access and Management Act (“GRAMA”).

FACTS

On July 16, 2013, Mr. Gehrke made a request from the AG’s Office for “copies of any subpoenas for testimony or documents received by the Attorney General’s office or members of the office from federal investigative agencies since April 1, 2013.” Mr. Gehrke also requested copies of correspondence “regarding any such subpoenas and copies of documents provided in response to the above subpoenas.” Mr. Gehrke added that the request made by The Salt Lake Tribune was intended for use in a news article for publication to the general public. In an e-mail dated July 30, 2013, Paul Murphy, Director of Communications for the AG’s Office, stated that the AG’s Office and federal investigative agencies cannot confirm or deny whether any subpoenas have been issued, and that any such records would be considered protected records pursuant to Utah Code § 63G-2-305(10)(a).

On July 31, 2013, Mr. Gehrke filed an appeal with Kirk Torgensen, Chief Deputy with the AG’s Office. In the appeal, Mr. Gehrke disagreed with the AG’s Office’s classification of the records as protected claiming that Utah Code § 63G-2-305(10)(a) was written to protect law enforcement or other agencies from disclosing ongoing investigations “being conducted by those agencies [and] does not apply when those agencies are witnesses to or the subject of an investigation.” Mr. Gehrke also noted that in April 2012, the AG’s Office had released documents similar to the requested documents relating to a different federal investigation. Mr. Gehrke further stated:

The Tribune contends that the disclosure of correspondence regarding the subpoenas would not impede a law enforcement investigation. Such correspondence would not relate to the facts being investigated, but rather to the manner in which the office responds to matters under investigation. Again, that response is not as part of any investigation being conducted by the office, but rather reveals the function of an office that holds a profound public trust.

In a letter dated August 6, 2013. Mr. Torgensen denied Petitioner’s appeal stating that the records were exempt under GRAMA “because the disclosure of records relating to federal grand jury proceedings is limited by Rule 6 of the Federal Rules of Criminal Procedure” pursuant to Utah Code § 63G-2-201(6)(a). Petitioner now appeals the denial of the GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on September 12, 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).

2. Utah Code § 63G-2-201(3) provides that the following records are not public: (1) A record that is designated “private,” “protected,” or “controlled” pursuant to Utah Code §§ 63G-2-302, -303, -304 and -305; and (2) A record to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, including records for which access is governed or restricted as a condition of participation in state or federal program or for receiving state or federal funds.

3. The disclosure of a record to which access is governed or limited pursuant to court rule, another state statute, federal statute, or federal regulation, is governed by the specific provisions of that statute, rules, or regulation. Utah Code § 63G-2-201(6)(a).

4. Counsel for the AG’s Office argued that the Federal Rules of Criminal Procedure, which govern the procedure in all criminal proceedings in United States district courts, the United States Courts of Appeals, and the Supreme Court of the United States, apply to the records requested by Petitioner. See, Fed. R. Crim. P. 1(a)(a). Specifically, counsel claimed that Fed. R. Crim. P. 6(e) did not allow disclosure by the AG’s Office of matters occurring before a grand jury unless it “is pursuant to an order issued by the Federal District Court according to the procedures set forth in Rule 6(e)(3)(E).”

5. Fed. R. Crim. P. 6(e)(2) states that no obligation of secrecy may be imposed on any person regarding Federal grand jury proceedings except in accordance with Rule 6(e)(2)(B). Fed. R. Crim. P. 6(e)(2)(B) states that the following persons must not disclose a matter occurring before the grand jury: A grand juror; An interpreter; A court reporter; An operator of a recording device; A person who transcribes recorded testimony; An attorney for the government; or A person to whom disclosure is made under Fed. R. Crim. P. 6(e)(3)(A)(ii) or (iii).

6. Fed. R. Crim. P. 1(b)(1) defines “attorney for the government” as (1) the Attorney General or an authorized assistant; (2) a United States attorney or an authorized assistant; (3) when applicable to cases arising under Guam law, the Guam Attorney General or other person whom Guam law authorizes to act in the matter; and (4) any other attorney authorized by law to conduct proceedings under these rules as a prosecutor. Fed. R. Crim. P. 6(e)(3)(A)(ii) states that disclosure of a grand jury matter, other than the grand jury’s deliberations or any grand juror’s vote, may be made to “any government personnel –including those of a state, state subdivision, Indian tribe, or foreign government –that an attorney for the government considers necessary to assist in performing that attorney’s duty to enforce federal criminal law.”

7. After hearing the arguments of the parties, the Committee finds that Fed. R. Crim. P. 6 does not prohibit disclosure of the subject records. Fed. R. Crim. P. 6(e)(2) places no obligation of secrecy on any person regarding Federal grand jury proceedings except in accordance with Rule 6(e)(2)(B). The only subsections of Fed. R. Crim. P. 6(e)(2)(B) that could be considered applicable to the AG’s Office are “an attorney for the government” or a person to whom disclosure is made under Fed. R. Crim. P. 6(e)(3)(A)(ii). As the subject of a Federal investigation, the AG’s Office cannot be considered an “attorney authorized by law to conduct proceedings under these rules as a prosecutor” pursuant to the definition of an “Attorney for the government” in Fed. R. Crim. P. 1(b)(1). Similarly, the AG’s office as the recipient of a Federal subpoena regarding a Federal investigation of the AG’s office is not “assisting” the enforcement of federal criminal law as contemplated by Fed. R. Crim. P. 6(e)(3)(A)(ii). Reception of a Federal subpoena by a law enforcement agency, especially by one being investigated by Federal prosecutors, does not automatically result in that law enforcement agency “assisting” the enforcement of federal criminal law. Accordingly, without an applicable statutory, rule or other regulatory restriction regarding disclosure of the requested records, the records are considered public records pursuant to Utah Code § 63G-2-201(2).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Robert Gehrke, Reporter for The Salt Lake Tribune, is GRANTED and Respondent, the Utah Attorney General’s Office shall disclose the requested records.

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 23rd day of September 2013.

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Chairperson
State Records Committee