State Records Committee Appeal Decision 2018-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PATRICK SULLIVAN, Petitioner, v.

UTAH DIVISION OF PUBLIC UTILITIES. Respondent.

DECISION AND ORDER

Case No. 18-11

By this appeal, Petitioner, Patrick Sullivan, seeks access to records allegedly held by Respondent, the Utah Division of Public Utilities.

FACTS

On or about November 29, 2017 Mr. Sullivan made a records request to the Utah Division of Public Utilities ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Sullivan requested a number of documents and communications, as well as a search of the Google Vault for said documents and communications. Mr. Sullivan also requested a waiver of fees.

The Respondent conducted a thorough search of its records and identified all records responsive to Mr. Sullivan’s request. On or about December 14, 2018, Respondent provided Mr. Sullivan with the results of the reasonable search of its records and provided all responsive records not subject to attorney client privilege. Respondent notified Mr. Sullivan that it was denying records that are subject to attorney client privilege and/or prepared in anticipation of litigation or judicial, quasi-judicial, or administrative proceedings and are classified as protected under Utah Code Ann. §63G-2- 305. On December 18, 2017 Mr. Sullivan appealed the denial to the Chief Administrative Officer and on January 16, 2018, the denial was upheld.

Mr. Sullivan filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on March 8, 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).

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, ¶ 33, 200 P.3d 643, 654 (quotation omitted). To rely upon the attorney-client privilege, the governmental entity 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. S. Utah Wilderness Alliance (“SUWA”), 2008 UT 88, ¶ 33, 200 P.3d 643, 655.

3. 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). The attorney work product doctrine generally protects documents and tangible things prepared in anticipation of litigation, judicial, quasi-judicial, or administrative proceedings. SUWA at ¶ 23, 200 P.3d at 643, 651. The purpose of the attorney work product protections is to provide attorneys with a zone of privacy permitting effective client advocacy. Schroeder v. Utah Attorney Gen. Office, 205 UT 77, ¶ 59, 358 P.3d 1075, 1090. It does not include documents produced in the ordinary course of business created pursuant to routine procedures or public requirements unrelated to litigation. SUWA, at ¶25, 200 P.3d at 652.

4. Counsel for Respondent argued that a search of all records showed that the only records responsive to Mr. Sullivan’s records request are protected records pursuant to Utah Code §§ 63G-2-305(17) & (18). Counsel further stated that a search for records was not made of Respondent’s “Google Vault” because either: (1) Any records in the Google Vault would have already been found in Respondent’s initial search; or (2) Any records found in the Google Vault search would have been properly classified as protected records pursuant to Utah Code §§ 63G-2-305(17) & (18).

5. After having reviewed the written arguments of the parties and considering all evidence presented at the hearing, the Committee finds that Respondent has provided all public records responsive to Mr. Sullivan’s request, and that any remaining responsive records are properly classified as non-public protected records pursuant to Utah Code §§ 63G-2-305(17) & (18).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Patrick Sullivan, 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 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 19th day of March 2018.

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee