State Records Committee Appeal Decision 2017-48

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

EDWARD A. BERKOVICH, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 17-48

By this appeal, Petitioner, Edward A. Berkovich, seeks access to records held by Respondent, Utah Attorney General’s Office.

FACTS

On or about July 24, 2017 Petitioner made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested a copy of an October 19, 2015, Memorandum from the Directory of the Utah Prosecution Council (“UPC”), to UPC members regarding Petitioner’s employment status. Respondent initially had denied Petitioner’s request for the record because it was classified as “protected” under GRAMA’s attorney client privilege and attorney work product provisions. See, Utah Code §§ 63G-2-305(17); -305(18). However, UPC waived its attorney client privilege regarding the record. Respondent thereafter reclassified the requested record as “private” under Utah Code §§ 63G-2-302(a) and -302(2)(d). See, Utah Code § 63G-2-307(2) and Deseret News Publishing Co., v. Salt Lake County, 2008 UT 26, ¶ 16, 182 P.3d 372.

On December 4, 2017, Respondent provided Petitioner a copy of the requested reclassified private record unredacted, with all attachments, and in its original form as had been delivered to UPC members because Petitioner was the subject of the record. See, Utah Code § 63G-2-202(1). In a memorandum submitted to the State Records Committee (“Committee”) dated December 11, 2017, Lonny J. Pehrson, Government Records Counsel for Respondent, argued that since Respondent had properly fulfilled Petitioner’s records request, Petitioner’s appeal to the Committee should be dismissed. The Committee held a hearing on December 14, 2017, and after considering the written and oral arguments of the parties, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The State Records Committee is authorized to: (1) Grant the relief sought, in whole or in part of a records committee appellant; or (2) Uphold the governmental entity’s access denial, in whole or in part. Utah Code § 63G-2-403(11)(a). Having reviewed Petitioner’s records request and the arguments and testimony of the parties, the Committee finds that Respondent fulfilled Petitioner’s records request. Therefore, the Committee cannot grant the relief sought by Petitioner because there has not been a records access denial by Respondent. Accordingly, Petitioner’s appeal to the Committee is hereby dismissed.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, is hereby DISMISSED.

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 26th day of December 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee