State Records Committee Appeal Decision 2017-18

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

GEORGE CHAPMAN, Petitioner, v.

SALT LAKE CITY CORPORATION. Respondent.

DECISION AND ORDER

Case No. 17-18

By this appeal, Petitioner, George Chapman, seeks access to records held by Respondent, the Salt Lake City Corporation.

FACTS

On January 30, 2017, Mr. Chapman filed a request for records from the Salt Lake City Corporation (“City”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Chapman requested the “Closed Executive Session Meeting Minutes of the SLC Council & RDA meetings that discussed homeless sites.” The City denied the request on February 3, 2017, pursuant to Utah Code §§ 63G-2-305(17), -305(32) and 52-4-206(5).

Mr. Chapman filed an appeal to the Chief Administrative Officer of the City. In a letter dated March 7, 2017, Patrick W. Leary denied the appeal writing that the “City recognizes the public interest in these Records. That interest, however, does not outweigh the City’s ongoing interest in protecting the Records.” Mr. Leary noted that the communications during the closed meeting included confidential advice from City attorneys and “even if the City were to redact the attorney-client communications from the recording, the resulting recording would likely be unintelligible.”

On April 4, 2017, Mr. Chapman filed an appeal with the State Records Committee (“Committee”). A hearing was held before the Committee on May 11, 2017, where the parties were allowed to present their legal arguments. After having reviewed the arguments submitted by the parties and having heard oral argument and testimony, the Committee 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 Utah Code §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).

2. The disclosure of a record to which access is governed or limited pursuant to another state statute is governed by the specific provisions of that statute insofar as GRAMA is not inconsistent with the statute. Utah Code § 63G-2-201(6).

3. Transcripts, minutes, or reports of the closed portion of a meeting of a public body are protected records if properly classified by a governmental entity except as provided in Utah Code § 52-4-206. Utah Code § 63G-2-305(32). Both a recording and written minutes of closed meetings are protected records under GRAMA “except that the records may be disclosed under a court order only as provided under Section 52-4-304.” Utah Code § 52-4-206(5).

4. In an action brought under the authority of the Open and Public Meetings Act (“OPMA”) to challenge the legality of a closed meeting held by a public body, the court shall review the recording or written minutes of the closed meeting in camera and decide the legality of the closed meeting. Utah Code § 52-4-304(1). If the judge determines that the public body did not violate Utah Code §§ 52-4-204, -205, or -206 regarding closed meetings, the judge shall dismiss the case without disclosing or revealing any information from the recording or minutes of the closed meeting. Utah Code § 52-4-304(2)(a). However, if the judge determines that the public body violated Utah Code §§ 52-4-204, -205, or -206 regarding closed meetings, the judge shall publicly disclose or reveal from the recording or minutes of the closed recording “all information about the portion of the meeting that was illegally closed.” Utah Code § 52-4-304(2)(b).

5. Additionally, a governmental entity shall disclose a record pursuant to the terms of a court order signed by a judge from a court of competent jurisdiction provided that: (1) The record deals with a matter in controversy over which the court has jurisdiction; (2) The court has considered the merits of the request for access to the record; (3) The court has considered and where appropriate, limited the requester’s use and further disclosure to protect certain enumerated interests; (4) The court considers whether the interests favoring access are greater than or equal to the interests favoring restriction of access; and (5) Where access is restricted by a rule, statue, or regulation referred to in Utah Code § 63G-2-201(3)(b), the court has authority independent of GRAMA to order disclosure. Utah Code § 63G-2-202(7) as referenced by Utah Code § 52-4-304(1).

6. The central question in the present case is whether the Committee has the authority to order the release of transcripts, minutes, or recordings of a public body that has claimed that it has properly closed its meeting pursuant to OPMA. Mr. Chapman argues that since his records request was made pursuant to GRAMA and was timely appealed to the Committee, the Committee has the ability to order the release of information properly classified as protected after applying the “weighing provision” found in Utah Code § 63G-2-403(11)(b). The City argues that OPMA, specifically Utah Code §§ 52-4-206 & -304, provides that closed meeting records may only be disclosed through a court order.

7. After having reviewed the written arguments of the parties, hearing testimony and arguments, and carefully reviewing the applicable statutes, the Committee finds that it does not have the authority to release the requested records pursuant to Utah Code § 52-4-206(5). According to statutory construction, words and phrases are to be construed according to the context and the approved usage of the language. Utah Code § 68-3-11. The use of the words “except” and “only” in Utah Code § 52-4-206(5) regarding the disclosure of records of a closed meeting by a court “as provided under Section 52-4-304,” combined with the court procedures outlined in Utah Code §§ 52-4-304 and 63G-2-202(7), shows a Legislative intent to limit disclosure of closed meeting records only through court action, and not through the State Records Committee. Although closed meeting records are considered protected records under GRAMA, the more specific procedure provided by OPMA regarding disclosure of records “only as provided under Section 52-4-304” prevails over the Committee’s general procedures found in Utah Code § 63G-2-403. If the Legislature intended to allow a dual track for accessing closed meeting records through both the courts and the Committee, the Legislature could have easily added enabling language to OPMA that referenced the Committee. Although the Committee is sympathetic that the issues raised by Mr. Chapman may indeed be of great public interest, the limiting language of Utah Code § 52-4-206(5) regarding disclosure of closed meeting records does not allow the Committee to have the authority to order release of those records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, George Chapman, 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 22nd day of May 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee