State Records Committee Appeal Decision 2017-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

TERRY MITCHELL, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 17-08

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

FACTS

On September 30, 2016, Ms. Mitchell made a request for records from the Utah Attorney General’s Office (“AG’s Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Mitchell requested any and all communications related to her report of a “child sexual abuse…regarding Chief Justice Judge Richard Roberts.” Ms. Mitchell also requested “all documentation, communication, emails, minutes, phone calls, meetings, correspondence of any kind, on and off record” regarding herself and Judge Roberts. Judge Roberts at the time of the complaint being filed was the Chief Judge of the United States District Court for the District of Columbia. Subsequent to the filing of the complaint, Judge Roberts voluntarily retired as a U.S. District Court Judge.

In a letter dated December 9, 2016, Lonny Pehrson, Assistant Attorney General and Government Records Counsel for the AG’s Office, denied Ms. Mitchell’s records request. Mr. Pehrson stated that “there is still an ongoing judicial misconduct proceeding in the United States Court of Appeals for the Tenth Circuit regarding your allegations against Judge Roberts” and therefore, the records had been classified as protected records pursuant to Utah Code § 63G-2-305(10). Mr. Pehrson added that “once the proceedings against Judge Roberts have concluded it may be possible to reclassify the records for release.”

In a letter dated January 6, 2017, Ms. Mitchell filed an appeal with Sean D. Reyes, Utah Attorney General. Parker Douglas, General Counsel for the AG’s Office responded to Ms. Mitchell’s appeal in a letter dated January 13, 2017. Mr. Douglas stated that records that had been previously classified as public records and had been publicly disseminated are not protected records, and agreed to grant Ms. Mitchell’s appeal for release of those records. However regarding the release of the other records, Mr. Douglas affirmed Mr. Pehrson’s decision denying access to the records.

Ms. Mitchell filed an appeal with the State Records Committee (“Committee”), and 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. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code §63G-2-201(2). Records to which access is restricted pursuant to court rule, federal statute, or federal regulation, are not public records. Utah Code § 63G-2-201(3)(b). The disclosure of a record to which access is governed or limited pursuant to court rule, federal statute, or federal regulation, is governed by the specific provisions of that statute, rule, or regulation. Utah Code § 63G-2-201(6)(a). GRAMA applies to records described in -201(6)(a) insofar as GRAMA is not inconsistent with the statute, rule, or regulation. Utah Code § 63G-2-201(6)(b).

2. The Federal Judicial Conduct and Disability Act states that “all papers, documents, and records of proceedings related to investigations conducted under [Chapter 16-Complaints Against Judges and Judicial Discipline] shall be confidential and shall not be disclosed by any person.” 28 U.S.C. § 360(a).

3. Mr. Pehrson, legal counsel for the AG’s Office, stated that the AG’s Office filed a judicial misconduct complaint against Judge Roberts in United States District Court for the District of Utah. On March 18, 2016, the United States Court of Appeals for the District of Columbia Circuit dismissed the judicial misconduct complaint based upon Judge Roberts’ retirement. The AG’s Office filed an appeal for a rehearing of the decision dismissing the judicial misconduct complaint with the Chief Justice John Roberts Jr. of the United States Supreme Court. In May 2016, Justice Roberts remanded the judicial misconduct complaint to a committee of judges of the United States Court of Appeals for the 10th Circuit for further proceedings. At the time of this GRAMA appeal, the judicial misconduct complaint is still currently being investigated by the 10th Circuit Court of Appeals.

4. After having reviewed all arguments and evidence, the Committee finds that the records are not public records pursuant to Utah Code §§ 63G-2-201(3)(b) and -201(6). The records are related to an investigation of former Judge Richard Roberts and with the investigation proceedings continuing before the 10th Circuit Court of Appeals, 28 U.S.C. § 360(a) applies to the records. Accordingly, “all papers, documents, and records of proceedings related to investigations…shall be confidential and shall not be disclosed by any person.” Although the Committee is very sympathetic to Ms. Mitchell’s request for the records, the Committee is refrained by the Federal Judicial Conduct and Disability Act that prohibits disclosure of these records by the Utah AG’s Office. While GRAMA provides a provision that allows the Committee to release properly classified records that it determines that the “public interest favoring access is greater than or equal to the interest favoring restriction of access” (See, Utah Code § 63G-2-403(11)(b), Federal Law provides no such provision allowing release of the subject records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Terry Mitchell, is hereby 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 21st day of February 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee