State Records Committee Appeal Decision 2019-10

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CHAD BENNION, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE Respondent.

DECISION AND ORDER

Case No. 19-10

By this appeal, Petitioner, Chad Bennion, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.

FACTS

On January 22, 2018, Mr. Bennion made a records request to the Utah Attorney General’s Office ("AG’s Office"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Bennion requested all records demonstrating costs, fees, charges or payment, incurred by the AG’s Office in any litigation regarding Senate Bill 54 (2014). In a letter dated February 2, 2018, Lonny J. Pehrson, Government Records Counsel for the AG’s Office, wrote that the only responsive records were eight pages of invoices for litigation expenses related to SB 54. Mr. Pehrson added that the AG’s Office “did not create and does not maintain any other records responsive to your request.”

On March 4, 2018, Mr. Bennion filed an appeal with the AG’s Office stating that “[w]hile I do appreciate the records provided, I have reason to think and believe the office may have additional records responsive to my request.” In a letter dated March 12, 2018, Tyler R. Green, Solicitor General for the AG’s Office, stated that an additional four pages of records responsive to Mr. Bennion’s records request had been found and would be provided to Mr. Bennion, stating that it “appears these records were inadvertently overlooked in our original search. We regret the oversight.” Mr. Green further stated that the AG’s Office “has now provided all records we have located in response to your request…”

On April 13, 2018, Mr. Bennion filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on April 11, 2019, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1). In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).

2. In the present case, Mr. Bennion argued that the AG’s Office was required to follow the Utah Rules of Professional Conduct Rule 1.5(b) which states in part that the scope of attorney representation and the basis or rate of the fee and expenses for which the client will be responsible “shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.” Mr. Bennion contended that Rule 1.5(b) required the AG’s Office to detail the basis of the fees and expenses the office incurred defending S.B. 54.

3. Mr. Pehrson, legal counsel for the AG’s Office, argued that all records responsive to Mr. Bennion’s records request had been provided to him. Mr. Pehrson stated that prior to the implementation of Internal Service Fund billing within the AG’s Office on July 1, 2018, the office “did not separately track such information for this type of litigation, which largely explains the limited number of responsive records found.”

4. After having considered the oral and written arguments of the parties, the Committee finds that based upon the evidence presented by the AG’s Office, all records responsive to Mr. Bennion’s records request have been provided to Mr. Bennion. The Committee is persuaded by the AG’s Office’s contention that generally these types of billing records were not created by the AG’s Office prior to July 1, 2018.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Chad Bennion 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. 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 22nd day of April 2019

BY THE STATE RECORDS COMMITTEE

__________________________________________
TOM HARALDSEN, Chair
State Records Committee