State Records Committee Appeal Decision 2017-34

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LEE DAVIDSON, on behalf of SALT LAKE TRIBUNE Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 17-34

By this appeal, Petitioner, Lee Davidson a reporter for the Salt Lake Tribune, seeks access to records held by Respondent, Utah Attorney General’s Office (“AG’s Office”).

FACTS

In a letter dated June 21, 2017, Mr. Davidson made a records request of the AG’s Office, pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Davidson requested a “copy of the legal opinion requested by legislative leaders about the special election process” to fill the congressional seat held by Representative Jason Chaffetz. Mr. Davidson stated that Utah “House Speaker Greg Hughes says he was told that opinion was completed and signed, but not given to legislative leaders.” In a letter dated June 28, 2017, Lonny J. Pehrson, Government Records Counsel for the AG’s Office denied Mr. Davidson’s records request. Mr. Pehrson stated that the legal opinion letter (“opinion letter”) had been classified by the AG’s Office as protected pursuant to Utah Code §§ 63G-2-305(18) & -305(22).

Mr. Davidson filed an appeal with the AG’s Office’s Chief Administrative Officer, arguing that the opinion letter had been requested “to help clarify duties for special elections of the executive and legislative branches, not for a lawsuit.” Mr. Davidson also argued that the opinion letter was not a draft because “it was completed, reviewed, and signed.” In a letter dated July 17, 2017, Tyler R. Green, Solicitor General for the AG’s Office, denied the appeal, affirming the determination that the opinion letter was properly classified as protected pursuant to Utah Code §§ 63G-2-305(18) & -305(22).

Petitioner has filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties, reviewing the opinion letter in camera, and carefully considering the requested relief of the parties, the Committee 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, -304 and -305.

2. 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 administrative proceeding, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(18).

3. Drafts unless they are otherwise classified as public, are protected records pursuant to Utah Code § 63G-2-305(22). Drafts that have never been circulated to anyone other than a governmental entity, political subdivision, a federal agency, a government-managed corporation, or a contractor/private provider, are normally public. Utah Code § 63G-2-301(3)(j). Additionally, drafts that have never been finalized but were relied upon by a governmental entity carrying out action or policy, are also normally public. Utah Code § 63G-2-301(3)(k).

4. The opinion letter was written in response to a May 23, 2017, request made by the Utah Legislature. The request letter, signed by Utah Representative Gregory Hughes, Speaker of the House, and Senator Wayne L. Niederhauser, Senate President, was made pursuant to Utah Code § 67-5-1(7), which states that the duties of the Utah Attorney General include giving an “attorney general’s opinion in writing…to the Legislature…when required, upon any question of law relating to their respective offices.” The letter asked specific questions related to the process required by law to fill the potential vacancy occurring with the resignation of Rep. Chaffetz from the United States Congress. Questions in the request letter included: (1) When does a vacancy occur; (2) What is the scope of the Governor of Utah under the United States Constitution for issuing a writ of election; (3) Who has the authority to establish the election process for a vacancy; and (4) Does either the Governor or Lieutenant Governor have the authority to establish their own process for electing an individual to fill a midterm vacancy.

5. Petitioner argued that the opinion letter should not be considered attorney work product pursuant to Utah Code § 63G-2-305(18) because it was not prepared “in anticipation of litigation.” Petitioner claimed that the AG’s Office failed in its burden to establish that the opinion letter was prepared primarily for use in pending or imminent litigation.

6. The AG’s Office claimed that it clearly anticipated that quasi-judicial or administrative proceedings before the Utah State Bar might result if the opinion letter was delivered to the Legislature. Further, a lawsuit regarding the special election “was commenced while the [AG’s Office’s] legal opinion was still being drafter, and another lawsuit was filed shortly thereafter.”

7. After hearing the arguments of the parties, the Committee is not convinced that, at the time the opinion letter was prepared, the opinion letter was prepared “for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding” as is required by Utah Code § 63G-2-305(18). The evidence instead shows that the letter was drafted pursuant to a request by the Legislature through the statutory provisions of Utah Code § 67-5-1(7). Accordingly, the Committee finds that the opinion letter was incorrectly classified as “protected” by the AG’s office pursuant to Utah Code § 63G-2-305(18).

8. The AG’s Office also argued that the opinion letter could be protected as a “draft” pursuant to Utah Code § 63G-2-305(22). The AG’s Office stated that the opinion letter was “a preliminary version of a document because it was never finalized for delivery and was kept in word processing format for further editing or revision.” A paralegal was instructed to add each of the author’s electronic signatures to the document on May 26, 2017, but revisions continued after that date and a copy was printed on May 30, 2017. According to Mr. Pehrson: “No official hardcopy of the document was ever created and it was last edited and saved on June 1, 2017.” Additionally, the AG’s Office never provided a copy of the opinion letter to the Legislature due to “ethics concerns.”

9. Based upon the facts as presented by the AG’s Office, the Committee is convinced that the opinion letter was a “draft” that was never circulated outside of the AG’s office or relied upon by a governmental entity in carrying out action or policy. Accordingly, the Committee finds that the AG’s Office appropriately classified the opinion letter as protected pursuant to Utah Code § 63G-2-305(22).

10. Except as provided in Utah Code § 63G-2-406, the Committee may upon consideration and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private, controlled, or protected if the public interest favoring access is greater than or equal to the interest favoring restriction of access. Utah Code § 63G-2-403(11)(b).

11. When considering the public interest in the opinion of the Utah Attorney General’s Office concerning the process of the election to fill the vacancy of a U.S. Congressman, and after having reviewed the opinion letter in camera, the Committee unanimously finds that the public interest favoring access is greater than the interest favoring restriction of access. Accordingly, the Committee finds that the opinion letter should be released to the public.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Lee Davidson, on behalf of the Salt Lake Tribune, is GRANTED.

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 23rd day of October 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee