State Records Committee Appeal Decision 2017-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KARL DAVIS on behalf of SHORE LODGE ESTATES HOA, Petitioner, v.

GARDEN CITY. Respondent.

DECISION AND ORDER

Case No. 17-05

By this appeal, Petitioner, Karl Davis on behalf of Shore Lodge Estates HOA, seeks access to records allegedly held by Respondent, Garden City.

FACTS

In a records request form dated November 3, 2016, Mr. Davis, a board member of the Shore Lodge Estates HOA, made a request for records from Garden City (“City”) pursuant to the Utah Government Records Access and Management Act (“GRAMA”). Mr. Davis requested records showing: (1) The amount spent on litigation against Shore Lodge Estates; (2) The source of the funding for the litigation; (3) The projected cost of an eminent domain action against Shore Lodge Estates, and (4) The source of funds for the cost of an eminent domain action.

In a letter dated November 17, 2016, an attorney representing the City stated that Request #1 was being denied because the documents were protected by the attorney-client privilege, and also stated that the City could not locate any documents in response to Requests #2, #3, and #4. The attorney further stated that Mr. Davis would be billed $22.43 for the cost incurred by the City responding to the records request.

Mr. Davis filed an appeal and requested a fee waiver for the $22.43 charge. City Mayor John Spuhler issued a decision dated December 16, 2016, affirming the denial of Request #1, noting that Request #2, #3, and #4 “is not memorialized in a record,” and denying Mr. Davis’ request for a fee waiver. On December 16, 2016, Mr. Davis on behalf of Shore Lodge Estates HOA, filed an appeal with the State Records Committee (“Committee”). On February 9, 2017, the Committee held a hearing regarding the appeal. The Committee, having reviewed the arguments submitted by the parties, and having heard oral argument and testimony, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Utah 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).

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).

3. In response to a request for a record pursuant to GRAMA, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).

4. Counsel for the City argued that for Request #1, the billing records showing how much the City spent in litigation with Shore Lodge Estates should be considered protected records because they are subject to the attorney client privilege pursuant to Utah Code § 63G-2-305(17).

5. 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. Automated Geographic Reference Ctr., 2008 UT 643 ¶ 33, 200 P.3d 643, 654 (“SUWA”), following Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990). In order to rely upon 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. SUWA, 2008 UT 643, ¶33, 200 P.3d at 654.

6. The Committee has previously held that legal invoices between a governmental entity and a private law firm are not protected by the attorney client privilege. See, Cedar Hills Citizens for Responsible Gov. v. Cedar Hills, State Records Committee Case No. 13-02 (Feb, 25, 2013); and Johnson v. Salt Lake Dept. of Pub. Util., State Records Committee Case No. 09-11 (Aug. 24, 2009). Accordingly, the Committee finds that the records for Request #1 are public subject to redaction of any information that is considered to be protected by the attorney client privilege as defined by the Utah Supreme Court in SUWA. Information concerning the amount charged and hours worked by the firm on behalf of the City should not be considered “confidential information” or “legal advice.”

7. Counsel for the City argued that records responsive to Request #2, #3, and #4 do not exist. The Committee finds the City’s arguments that it is not required to create records to respond to Mr. Davis’ Request #2, #3, and #4 persuasive, and finds that the City is not required to produce documents in response to these requests.

8. In the letter dated November 17, 2016, the City charged Mr. Davis $22.43, claiming it was the City’s “cost incurred in responding to the GRAMA request.” However, the City did not produce any documents in response to Mr. Davis’ records request, but nonetheless charged him for his records request. Mr. Davis request for a fee waiver was denied by the City on December 16, 2016.

9. Utah Code § 63G-2-203(1) allows a governmental entity to charge a reasonable fee to cover the governmental entity’s “actual cost of providing a record.” In the present case, even though the City had not provided a record, it still charged Mr. Davis a fee.
10. The adjudicative body hearing an appeal by a person who believes that there has been an unreasonable denial of a fee waiver “shall review the fee waiver de novo” but shall also consider the governmental entity’s denial of the fee waiver. Utah Code § 63G-2-203(6)(b)(i). Considering the fact that GRAMA only allows a governmental entity to charge a reasonable fee for the “actual cost of providing a record,” and the City did not actually provide a record, the Committee finds that the City’s denial of Mr. Davis’ request for a fee waiver of $22.43 was an unreasonable denial and it is accordingly reversed.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Karl Davis, is hereby GRANTED IN PART and DENIED in PART.

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 February 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee