State Records Committee Appeal Decision 2018-01

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 18-01

By this appeal, Petitioner, Steven Onysko, seeks access to records held by Respondent, Utah Attorney General’s Office.

FACTS

On or about August 8, 2017, Mr. Onysko resubmitted a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko initially requested records related to the Respondent’s handling of a whistle-blower lawsuit styled USA ex. rel. Mark Christopher Tracy v. Emigration Improvement District et al., No. 2:14-cv-00701 (D. Utah). Mr. Onysko added an additional request for “Multi-Agency State Office Building (MASOB) visitor log records that show that any days, including June 15, 2016, on which former DDW managers Michael Georgeson and Kenneth Wilde signed into MASOB for purpose of meeting with OAG agents, including, but not limited to, OAG's Melissa Hubbell, in the matter of USA ex rel Mark Christopher Tracy.”

On August 15, 2017, Respondent informed Mr. Onysko that despite a reasonable search, no records responsive to certain parts of his request were found, and that all records identified as responsive to other parts of his request were protected either as attorney client communications under Utah Code § 63G-2-305(17), or as attorney work product under Utah Code § 63G-2-305(18) and therefore, could not be provided. On September 5, 2017, Mr. Onysko appealed to the Chief Administrative Officer, and on September 19, 2017, Solicitor General Tyler Green, acting as Chief Administrative Officer affirmed the initial determination.

Mr. Onysko filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and reviewing the records in camera, on January 11, 2018, now 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 that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code §§ 63G-2-305(17). The attorney client privilege protects information given by a client to an attorney that is necessary to obtain informed legal advice, which might not have been made absent the privilege. S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶ 18, 200 P.3d 643, 654. To rely upon the attorney client privilege, a party must establish: (1) An attorney client relationship; (2) The transfer of confidential information; and (3) The purpose of the transfer was to obtain legal advice. Id.

3. After having reviewed the written and oral arguments of the parties, and having reviewed the records in camera, the Committee finds that Respondent has shown that an attorney client relationship existed, there was a transfer of confidential information, and the purpose of the transfer was to obtain legal advice. Accordingly, Respondent properly classified the records as protected records pursuant to Utah Code § 63G-2-305(17).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko, is 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 a parties’ 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 January 2018.

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee