State Records Committee Appeal Decision 2016-23

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

UTAH LEGAL CLINIC, Petitioner, v.

SALT LAKE CITY CORPORATION. Respondent.

DECISION AND ORDER

Case No. 16-23

On May 12, 2016, the State Records Committee (“Committee”) held a hearing regarding an appeal filed by Petitioner, the Utah Legal Clinic (“Petitioner”). The records request made by Petitioner was for “[a]ny and all emails sent or received by” certain individuals since July 1, 2013, referencing Trenton Mellen and/or specific court case numbers. After it was determined that the records were too numerous to review in its entirety during the hearing on this matter, the Committee voted unanimously to continue the hearing to a later date in order to allow sufficient time for Committee members to review the disputed records in camera. See, Utah Legal Clinic v. Salt Lake City Corporation, State Records Committee Order No. 16-20 (May 23, 2016). Having reviewed the records in camera provided by Respondent, Salt Lake City Corporation (“Respondent”), and having considered the written and oral arguments made by the parties, the Committee 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 and -304.

2. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). The attorney-client privilege protects information given by a client to an attorney that is necessary to obtain informed legal advice, which might not have been made absent the privilege. S. Utah Wilderness Alliance v. Auto. Geographic Reference Ctr., 2008 UT 88, 200 P.3d 643, ¶33. In order to rely on the attorney client privilege, a party must establish: (1) an attorney-client relationship; (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice. Id.

3. Similarly, 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 administration, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18). In order for this exemption to apply, the asserting party must show that the documents or materials were prepared in anticipation of litigation by or for a party or that party’s representative. Haik v. Salt Lake City Corp., 2014 UT App 193, 334 P.3d 490, ¶31, following SUWA, 2008 UT 88, 200 P.3d 643, ¶29.

4. In the present case, Respondent provided some documents to Petitioner pursuant to the records request, but denied access to other documents after classifying them as non-public records. Counsel for Respondent argued that the records were prepared “for or by attorneys or other City employees in anticipation of Mr. Mellen’s criminal proceedings.” Counsel also argued that the records consisted of employees of Respondent having communications with the City Attorney or other attorneys “seeking legal advice regarding threatened or potential civil litigation related to or deriving from Mr. Mellen’s criminal prosecution, and/or legal issues surrounding the prior GRAMA requests.”

5. After having reviewed the records in camera, the Committee finds that Respondent properly classified the records as protected records pursuant to Utah Code §§ 63G-2-305(17) & (18). Although the records primarily contain protected information, the in camera review showed that they also contain information that would not be protected pursuant to -305(17) or (18). However, segregating the public information from the protected information would not leave enough detail in the documents that would allow them to be beneficial to the public. Accordingly, Respondent should not be required to provide redacted copies of the records to Petitioner.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Utah Legal Clinic, 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 26th day of July 2016.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee