State Records Committee Appeal Decision 2017-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL AMANN, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 17-06

By this appeal, Petitioner, Paul Amann, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.

FACTS

Paul Amann is a former Assistant Attorney General with the Utah Attorney General’s Office (“AG’s Office”). Mr. Amann alleges that because he was a “whistleblower,” he was “driven” from his position within the AG’s Office. On October 2, 2016, Mr. Amann filed the following 17 records requests from the AG’s Office pursuant to the Utah Government Records Access and Management Act (“GRAMA”):

  • 1A. Complaint filed by AG’s Office employee against Mr. Amann and other named individuals.
  • 1B. Documentation of “new information and complaint” referenced in an e-mail dated June 23, 2016.
  • 1C. All documents and the envelope referenced in a “Notice of Intent” dated September 8, 2016.
  • 1D. Documents and envelopes sent from January 2016 to March 2016 to the Utah Board of Pardons, an athletic club, and an ecclesiastical leader.
  • 1E. Mr. Amann’s card key access logs obtained from the Utah Division of Facilities and Construction Management from July 2015 to September 2015.
  • 1F. Information obtained by the Utah AG’s Office from Utah’s CourtXchange servers referenced in the “Notice of Intent” letter.
  • 1G. Information obtained by the Utah AG’s Office from the Utah Department of Technology Service regarding an IP address of a computer used by Mr. Amann from August 3, 2015 to September 2, 2015.
  • 1H. Documentation of the location on Mr. Amann’s hard drive of a specified cover letter.
  • 1I. Any evidence of Mr. Amann’s knowledge of a specified cover letter or an employee’s attendance at a “Forensics in Court” program.
  • 1J. A list of every person who had access to a specified Utah AG’s Office employee and/or had knowledge about the employee’s attendance at a “Forensics in Court” program.
  • 1K. A copy of a “taint review” report referenced in the “Notice of Intent” letter.
  • 1L. A copy of a form provided to a Utah AG’s Office employee on January 2015 referenced in the “Notice of Intent” letter.
  • 1M. A copy of the “taint review” that found that Mr. Amann used workplace devices to promote candidacies of political candidates.
  • 1N. Copies of all e-mails between Mr. Amann and a specified individual using his work e-mail address on December 28, 2013.
  • 1O. All time entry records submitted by Mr. Amann from July 2015 to October 2015.
  • 1P. A copy of a letter dated October 18, 2013 to the Utah Board of Pardons concerning a specified AG’s Office employee without the letterhead being redacted.
  • 1Q. A complete current copy of the AG’s Office Policy Manual.

In a letter dated October 18, 2016, Assistant Attorney General Daniel Widdison denied Mr. Amann’s records requests. Mr. Widdison stated that according to Section 2.18(E)(5) of the AG’s Office Policy Manual, an “employee is not entitled to engage in discovery of documents within the possession or control of the [AG’s] Office that are private, protected, or controlled under [GRAMA].” Mr. Widdison further stated that the records had been classified as private or protected records, and the AG’s Office was not obligated to create records in response to a records request made pursuant to GRAMA. A copy of the AG’s Office Policy Manual (Request 1Q) was provided to Mr. Amann at that time.

Mr. Amann filed an appeal of the records request denial with Parker Douglas, General Counsel for the AG’s Office. In a letter dated November 23, 2016, Mr. Douglas affirmed the decision of Mr. Widdison denying Mr. Amann’s records requests. On December 23, 2016, Mr. Amann 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, having heard oral argument and testimony, and having reviewed the disputed records in camera, 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 the disclosure of which would jeopardize the security of governmental properly, governmental programs, or governmental recordkeeping systems from damage, theft, or other appropriation or use contrary to law or public policy, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(12).

3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).

4. 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).

5. During arguments before the Committee, Assistant Attorney General Daniel Widdison, counsel for the AG’s Office, agreed to provide Mr. Amann with copies of documents from his requests numbered 1E, 1L, and 1O without an order from the Committee. Mr. Widdison stated that requests numbered 1D, 1H, 1I, and 1K, can be provided, but only if restriction to use of the records to Mr. Amann is given by the Committee pursuant to Utah Code § 63G-2-403(11)(c) (The committee “where appropriate, limit the requester’s or interested party’s use and further disclosure of the record in order to protect…privacy interests in the case of a private or controlled record” and “privacy interests or the public interest in the case of other protected records.”). Mr. Widdison stated that there are no records responsive to Mr. Amann’s requests 1A, 1B, 1D, 1J, 1M and 1P.

6. After having reviewed all arguments and evidence, and having reviewed all of the documents provided by the AG’s Office for review in camera, the Committee makes the following findings:

(1) The AG’s Office is not required to provide records in response to requests 1A, 1B, 1D, 1J, 1M, and 1P because the Committee is persuaded that there are no records responsive to the request;

(2) The documents in the folder responsive to request 1C Bates Stamped #3 through #19 are public records subject to disclosure because they are public court records;

(3) The document in the folder responsive to request 1C Bates Stamped #1 is a public record, but all other records in folder 1C except as noted above in (2) are non-public records;

(4) The records in response to requests 1F, 1G, and 1H are records properly classified as protected records pursuant to Utah Code § 63G-2-305(12);

(5) After weighing the various interests and public policies pertinent to the classification, pursuant to Utah Code § 63G-2-403(11)(c) the records in response to requests 1F, 1G, and 1H shall be disclosed to Mr. Amann for his own personal use with the restriction that he may not disclose the information within the records;

(6) The records in response to request 1I were properly classified as private records pursuant to Utah Code § 63G-2-302(2)(d), but pursuant to Utah Code § 63G-2-403(11)(c) shall be disclosed to Mr. Amann with the same restrictions as stated above;

(7) The documents in the folder responsive to request 1K and Bates Stamped #1 through #137 are appropriately classified as protected records pursuant to Utah Code § 63G-2-305(12), documents Bates Stamped #154 and #155 are appropriately classified as private pursuant to Utah Code § 63G-2-302(2)(d), and the remaining documents in folder 1K should be considered public and subject to disclosure; and

(8) The documents in the folder responsive to request 1K and Bates Stamped #1 through #137, #154, and #155, are properly classified as non-public records, but pursuant to Utah Code § 63G-2-403(11)(c) shall be disclosed to Mr. Amann with the same restrictions as stated above;

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Paul Amann, 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

 

Page Last Updated February 22, 2017 .