State Records Committee Appeal 2013-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ERIC PETERSON, REPORTER FOR THE CITY WEEKLY, Petitioner, vs.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 13-13

By this appeal, Petitioner, Eric Peterson, Reporter for the City Weekly, seeks access to records with Respondent, the Utah Attorney General’s Office (“AG’s Office”).

FACTS

On May 22, 2013, Mr. Peterson filed a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) with the AG’s Office. Mr. Peterson requested all documents pertaining to the “Whitewater VII” development investigation. The request included e-mails, documents, text messages, and other correspondence between employees in the AG’s Office and specified individuals related to the Whitewater VII development investigation.

In a letter dated May 31, 2013, the Records Officer in the Investigation Division of the AG’s Office denied the records request pursuant to Utah Code § 63G-2-305(10). Mr. Peterson filed an appeal with Kirk Torgensen, Chief Deputy Attorney General with the AG’s Office, arguing that the investigation has “been going on since 2010” and that the “public deserves to know why it’s not resolved or get some kind of status update.” In a letter dated June 13, 2013, Mr. Torgensen denied the appeal stating that the records were classified as protected “because the records were created or maintained for criminal enforcement purposes and release of the records reasonably could be expected to interfere with investigations undertaken for enforcement purposes.”

Petitioner now appeals the denial of Mr. Peterson’s request for records to the State Records
Committee (“Committee”). This matter originally was heard by the Committee on August 8,
2013 when it was determined that an in camera review of the disputed records was necessary
pursuant to Utah Code § 63G-2-403(9). However, since the disputed records were too numerous to review in their entirety during the hearing and a portion of the disputed records were not provided to the Committee to review at the time of the hearing, the Committee continued the hearing until September 12, 2013. During the September 12, 2013 hearing, it was determined by the Committee that the parties should have an opportunity to brief whether Fed. R. Crim. P. 6 is applicable to the present case. See, Utah Code § 63-2-201(3)(b). Accordingly, the hearing was continued a second time until October 10, 2013, in order to allow the parties to address the applicability of Fed. R. Crim. P. 6 to the present case by filing written memoranda concerning this subject. See, Peterson v. Utah Attorney Gen. Office, State Records Committee Case No. 13-08 (Sep. 23, 2013). Although the parties had previously made their arguments before the Committee, with the new argument presented by the AG’s Office, the Committee believed that the Petitioner should have an opportunity to respond.

The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony, and having reviewed in camera some of the disputed records, 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 § 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. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, can be classified as protected records by a governmental entity if release of the records reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code § 63G-2-305(10).

3. A record that is classified as protected pursuant to Utah Code § 63G-2-305(10) may be ordered to be disclosed under the provisions of Utah Code § 63G-2-403(11)(b) only if the person or party seeking disclosure of the record has established, by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.

4. Counsel for the AG’s Office argued that all of the requested documents should not be disclosed because they involved a criminal and/or civil investigation undertaken by the AG’s Office. Counsel also argued that many of the requested documents not only involved the AG’s Office investigation of the Whitewater VII development, but also involved a Federal investigation of the AG’s Office’s handling of the Whitewater VII development investigation.
5. Mr. Peterson argued that even if the disputed documents were related to a criminal and/or civil investigation, the public’s interest in knowing about the investigation is greater than the interest favoring restriction to access to the records. See, Utah Code §§ 63G-2-403(11) & 63G-2-406(1).

6. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, and reviewing a portion of the disputed records in camera, the Committee makes the following findings:

7. The records designated as the “Whitewater VII investigation records” were properly classified as protected records pursuant to Utah Code § 63G-2-305(10)(a).

8. Outside of the “Whitewater VII investigation records,” are two sets of e-mails designated as “Group 1” and “Group 2.” Group 1 consists of six e-mails referred to as the “Jeff Jones Group.” The Committee finds that these six e-mails are responsive to Mr. Peterson’s records request, are not considered protected records because they are not part of an investigation, and therefore, are public records and should be released after any personal information has been redacted prior to their release.

9. “Group 2” consists of a set of twenty-four e-mails referred to as the “Gang Bills Group.” The Committee finds that Utah Code § 63G-2-305(10)(a) does not apply to the Group 2
e-mails because it is not reasonably expected that release of the e-mails would interfere with investigations undertaken for enforcement by the AG’s Office. The Committee finds that
e-mail #20 should be considered a protected record pursuant to Utah Code § 63G-2-305(17) because it is subject to the attorney client privilege. However since Utah Code § 63G-2-305(10)(a) does not apply, the remaining twenty-three e-mails in this group should be considered public records and released.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Eric Peterson, Reporter for the City Weekly, for the “Whitewater VII investigation records” and e-mail #20 is DENIED, and his request for correspondence related to the investigation consisting of twenty-nine e-mails as detailed above is GRANTED.

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 22nd day of October 2013,

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Chairperson
State Records Committee