State Records Committee Appeal 2015-34

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

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

UTAH ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 15-34

By this appeal, Petitioner, Robert Gehrke, Reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office. The subject of the alleged records, Phil Lyman, was also allowed to participate as an Intervenor.

FACTS

On July 21, 2015, Mr. Gehrke made a records request to the Utah Attorney General’s Office ("AG's Office"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Gehrke requested “…copies of the file of any closed investigation conducted into San Juan County Commissioner Phil Lyman within the last five years.” On October 23, 2015, Blaine Ferguson, an Assistant Attorney General with the AG's Office, denied Mr. Gehrke’s records request stating “[w]ithout saying whether it has any records responsive to your request, the Office respectfully denies your request. The Office can provide you with no further information in response to your request.”

On October 26, 2015, Mr. Gehrke filed an appeal, via e-mail, with the AG's Office. In a letter dated October 30, 2015, Parker Douglas, Chief of Staff and Federal Solicitor for the AG's Office, denied Mr. Gehrke’s appeal, claiming that he could neither confirm nor deny that any records exist that were responsive to Mr. Gehrke's records request. Mr. Douglas added that if any records did exist, “release of those records would constitute a clearly unwarranted invasion of privacy" under Utah Code Ann. § 63G-2-302(2)(d).

On November 3, 2015, Mr. Gehrke filed an appeal on behalf of the Salt Lake Tribune with the State Records Committee (“Committee”). Pursuant to Utah Code § 63G-2-403(6), Mr. Lyman was allowed to intervene, after the Committee received his request to intervene on November 13, 2015.

On November 24, 2015, the AG's Office filed with the Committee, a "Motion for Order Implementing Certain Procedures to Preserve Confidentiality" ("Motion"). In the Motion, the AG's Office requested that the Committee allow presentation of "all of its submissions to the Committee under seal" and not allow the presentation to be disclosed "to anyone else, including the Petitioner Robert Gehrke, [Mr. Lyman], other State Records Committee staff, or the public." The AG's Office also offered to have counsel for the AG's Office "available to answer questions to the Committee on an ex parte basis in a closed hearing." Petitioner opposed the Motion and provided arguments against the Motion in an email submitted to the Committee dated November 25, 2015. Counsel for Mr. Lyman submitted a Memorandum supporting the Motion, requesting that any information and/or data gathered by the AG's Office about him [Mr. Lyman] "only be referenced and not produced" and that Mr. Gehrke "should have limited, to no involvement, regarding the relief presently sought by the AG's Office."

On December 10, 2015, the Committee held a public hearing to consider the merits of the Motion and Petitioner's Appeal. After having reviewed the arguments submitted by Petitioner, the AG's Office, and Mr. Lyman's legal counsel, hearing oral argument and testimony from all of the parties, and carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. If the decision of the Chief Administrative Officer of a governmental entity is to affirm the denial of a record request, the requester may appeal the decision to the Committee as provided in Utah Code § 63G-2-403. Utah Code § 63G-2-402(1)(a). The notice of appeal shall include a copy of the decision being appealed and state the relief sought. Utah Code § 63G-2-403(2)(b) & (c). The records committee appellant may file a short statement of facts, reasons, and legal authority in support of the appeal. Utah Code § 63G-2-403(3)(b).

2. After receiving a copy of the notice of appeal, the governmental entity shall submit to the Committee a written statement of facts, reasons, and legal authority in support of the governmental entity's position. Utah Code § 63G-2-403(5)(a). The governmental entity shall send a copy of the written statement "to the requester or interested party involved in the appeal." Utah Code § 63G-2-403(5)(b). Similarly, a person whose legal interests may be substantially affected by the proceedings before the Committee, may file a request for intervention before the Committee, and "written statement of facts, reasons, and legal authority in support of the intervener's position shall be filed with the request for intervention." Utah Code § 63G-2-403(6)(b), emphasis added. Additionally, copies of these materials shall be provided "to all parties to the proceedings before the records committee." Utah Code § 63G-2-403(6)(c).

3. The Committee "shall hold a hearing" and at the hearing, "shall allow the parties to testify, present evidence, and comment on the issues" and "may allow other interested persons to comment on the issues." Utah Code § 63G-2-403(9)(b), emphasis added. The Committee may review the disputed records in camera, and members of the Committee "may not disclose any information or record reviewed by the committee in camera unless the disclosure is otherwise authorized" by GRAMA. Utah Code § 63G-2-403(9).

4. In addition to the hearing procedures outlined in GRAMA, the Committee is considered a "Public Body" subject to the Utah Open and Public Meetings Act ("OPMA") pursuant to Utah Code § 52-4-103(9), and is required to "take their actions openly" and "conduct their deliberations openly" See, Utah Code § 52-4-102(2).

5. The AG's Office argued that GRAMA allows a governmental entity to not disclose a description of a record or citations to GRAMA or other authority, when denying access to a record, if that descriptive information or citation discloses private, controlled, or protected information or information exempt from disclosure under Utah Code § 63G-2-201(3)(b). See, Utah Code § 63G-2-205(2)(b) & (c). The AG's Office further argued that similar provisions exist for the Committee because an order from the Committee shall include citations and a description of the record unless the information discloses "private, controlled, or protected information..." See, Utah Code § 63G-2-403(12)(a) & (b). The AG's Office claims that a combination of these two provisions shows that the Legislature intended to allow a governmental entity to make arguments before the Committee, ex parte.

6. Petitioner argued that allowing a governmental entity to argue before the Committee, ex parte, would deny a records committee appellant "a fair and impartial hearing on the matter at hand."

It would create a scenario where one party, the Attorney General's office, would have unfettered access to the filings and arguments being made by the Tribune, while the other parties in the matter would have to simply guess at what contentions are being raised by the state, essentially fighting in the dark with one arm behind their [back]. As the motion notes, it would leave the ability of the Tribune to have "substantive involvement being very limited."

7. After carefully considering the parties' arguments, the Committee unanimously finds that the "Motion for Order Implementing Certain Procedures to Preserve Confidentiality" should be denied. The Committee's procedures are outlined in statute by the Legislature in both GRAMA and OPMA, and a review of the plain language of these statutes shows that they do not provide a mechanism where one party may argue before the Committee, ex parte, while excluding the opposing party and the public in general. While Courts may have the authority to close hearings, allow ex parte arguments, or even allow the disclosure of non-public records to legal counsel for a party, the Committee does not believe that it has such authority. Allowing only the governmental entity to make arguments before the Committee would not allow "the parties to testify, present evidence, and comment on the issues." See, Utah Code § 63G-2-403(8).

8. Further, one of the primary purposes of hearings before the Committee is to allow Requestors an opportunity to have their GRAMA requests heard by a neutral third party without requiring legal counsel or court filing fees. If the Committee were to allow a governmental entity to make ex parte arguments in a closed hearing, it would set a dangerous precedent where other governmental entities would seek similar hearings, effectively eliminating a records committee appellant's right to argue and have a fair hearing before the Committee without legal counsel. Further, the Committee’s refusal to hold a closed hearing for a governmental entity would not be prejudicial to the governmental entity because an appeal to district court is de novo, and a Court may through its inherent authority, limit access to individuals concerning records and arguments presented to the Court. See, Utah Code § 63G-2-404(4) & (5). Accordingly, based upon the Committee's interpretation of applicable law, the Motion is denied.

9. After the Committee denied the AG's Office's Motion, the AG's Office did not present any argument or citations to statute concerning why the records, if they exist, should not be made public. The AG's Office claimed that any citations, or even an acknowledgement that records exist, would itself be a disclosure of private, controlled, or protected information.

10. 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.

11. Without any reference to any citation that designates the records as private, protected, or controlled, and having been denied the opportunity to review records in camera, the Committee cannot find that Petitioner should be denied access to the records because all records are public unless expressly provided by statute. The Committee does not have any evidence that a record does not exist that is responsive to Petitioner's request, or a citation to a statute that allows the AG's Office to not disclose whether a responsive record exists. Accordingly, the Committee finds that the AG's Office possesses a record that is responsive to Petitioner's request, and the record should be classified as a "public" record subject to disclosure.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is GRANTED.

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 21st day of December, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee