State Records Committee Appeal Decision 2019-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

TAYLOR STEVENS on behalf of the SALT LAKE TRIBUNE, Petitioner, v.

GRANTSVILLE CITY, Respondent.

DECISION AND ORDER

Case No. 19-08

By this appeal, Petitioner, Taylor Stevens, a reporter for the Salt Lake Tribune, seeks access to records held by Respondent, Grantsville City.

FACTS

On or about November 19, 2018, Ms. Taylor made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Taylor requested, “[a]ny and all documents and final reports pertaining to the outside investigation into Mayor Brent Marshall’s behavior.”

In a letter dated December 3, 2018, Christine Webb, Grantsville City Recorder denied Petitioner’s request indicating that the records were designated as protected pursuant to Utah Code § 63G-2-305(17) because an outside attorney was hired to complete the investigation. Ms. Taylor appealed the denial, and in an email dated December 17, 2018, the denial was upheld by Respondent.

Ms. Taylor filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on March 14, 2019, carefully considering the requested relief of the parties, and reviewing the records in camera, 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 created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity, if release of the records reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(d).

3. Records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, are generally private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a).

4. In the present case, Respondent classified the records as protected pursuant to Utah Code §§ 63G-2-305(17) (records that are subject to the attorney client privilege), and –305(18) (records prepared for or in anticipation of litigation or a judicial, quasi-judicial, or administrative proceeding), in addition to classifying them as protected pursuant to -305(10).

5. After having reviewed the written and oral arguments of the parties, the Committee finds that Respondent improperly classified the records as protected records pursuant to Utah Code §§ 63G-2-305(17) and –305(18). See, S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, 200 P.3d 643. Simply because the work was done by attorneys does not automatically qualify the records to be considered protected records pursuant to §§ 63G-2-305(17) and -305(18).

6. However, the Committee finds that Respondent properly classified the records as protected records pursuant to Utah Code § 63G-2-305(10)(d), and also finds that the records should be considered non-public records and classified as private records pursuant to Utah Code § 63G-2-302(2)(a) because the Mayor is an employee of Respondent.

7. However, Utah Code § 63G-2-403(11)(b) allows the Committee upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information properly classified as private or protected “if the public interest favoring access is greater than or equal to the interest favoring restriction of access.”

8. After having reviewed the requested records in camera, the Committee finds that based upon Utah Code § 63G-2-403(11)(b), Respondent should release the requested records to Petitioner subject to redactions of any information that would reasonably be expected to disclose the identity of a source who is not generally known outside of government or disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. See, Utah Code § 63G-2-305(10)(d). Since the subject of the request is the Grantsville City Mayor, the Committee finds that the public interest in the records outweighs the interest favoring restriction of access subject to the above stated redactions.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Taylor Stevens on behalf of the Salt Lake Tribune, is hereby GRANTED in part and DENIED in part.

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. Utah Code § 63G-2-403(15)(d)(i)(B). 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 25th day of March 2019

BY THE STATE RECORDS COMMITTEE

_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee