State Records Committee Decision 2015-22

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

GRAY SMITH, Petitioner, v.

COTTONWOOD HEIGHTS CITY, UTAH. Respondent.

DECISION AND ORDER

Case No. 15-22

By this appeal, Petitioner, Gray Smith, seeks access to records allegedly held by Respondent, Cottonwood Heights City, Utah.

FACTS

On April 10, 2015, Mr. Smith made a records request to Cottonwood Heights City, Utah ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Smith requested “[a]udio of April 9 Board of Adjustment meeting” and “[c]opies and records of detailed inquiries and investigations of the City’s determination of alleged improper communications of Giverny appeal. (March 20, 2015, BOA City’s response memorandum page (7).).” On April 24, 2015, Respondent, via the City Recorder, provided the Petitioner with a response, a copy of the requested audio recording and the investigation records as they pertained to the factual basis for the City’s statement in its responsive brief in the pending Giverny appeal. In the response provided by the Respondent, the Petitioner was notified that the remaining records were withheld due to attorney client privilege, as it relates to litigation strategy, and as protected under Utah Code § 63G-2-101 et seq.

Pursuant to the GRAMA request the Respondent provided certain attorney client privileged records under Utah Code § 63G-2-401(6). Respondent further noted that “[b]y providing these arguable protected records, however, the City does not waive, relinquish or in any way diminish its claim of attorney client privilege as to any other matters or records whatsoever.” On May 5, 2015, Petitioner appealed the response, and on May 11, 2015, the decision was affirmed by the City Manager.

On June 9, 2015, Mr. Smith filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, on July 9, 2015, 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 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 subject to the attorney client privilege are protected if properly classified by a governmental entity. Utah Code § 63G-2-305(17).

3. Counsel for Respondent argued at the hearing that the records were properly classified as protected attorney client privileged communications pursuant to Utah Code § 63G-2-305(17), and that these records specifically related to litigation strategy. Counsel further noted that by previously providing attorney client records due to balancing interests, the City “did not waive, relinquish, or in any way diminish its claim of attorney client privilege as to any other matters or records.

4. The Committee reviewed the disputed records in camera and found the records were properly classified by Respondent as protected records pursuant to Utah Code § 63G-2-305(17).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Gray Smith, is DENIED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). 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(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 20th day of July, 2015.

BY THE STATE RECORDS COMMITTEE

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PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee