State Records Committee Appeal Decision 2019-38

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL ROBINSON, Petitioner, v.

SANDY CITY, Respondent.

DECISION AND ORDER

Case No. 19-38

By this appeal, Petitioner, Michael Robinson, seeks access to records held by Respondent, Sandy City.

FACTS

On or about March 25, 2019, Michael Robinson made a request for a record pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Robinson requested all records regarding the investigation, charging, and the dismissal of a criminal case in which he was one of the victims. In a letter dated April 4, 2019, Wendy Downs from Sandy City, stated that “we have provided most of the records you requested” but also stated that a “few e-mails” are protected records pursuant to Utah Code § 63G-2-305(17) & (18).

Mr. Robinson filed an appeal to Sandy City’s Chief Administrative Officer on April 9, 2019, and on April 26, 2019, Matthew Huish upheld the denial. Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on October 10, 2019, and carefully considering the requested relief of the parties, 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 that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). Similarly, 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).

3. In the present case, Sandy City argues that the records that have not been provided to Mr. Robinson are e-mail communications between a police detective and the city prosecutor, and between the city prosecutor and a member of his staff. Because these records involve discussion of the referenced criminal case with the city prosecutor, Sandy City contends that they are subject to either the attorney client privilege or constitute attorney work product.

4. In a similar case, Utah Legal Clinic requested “all records from the City Prosecutor’s Office relating to the criminal prosecution” of an individual from Salt Lake City. Utah Legal Clinic v. Salt Lake City Corp., 2019 UT App 58 ¶ 1, 440 P.3d 948, 949. A witness for the city testified that releasing the records would have a chilling effect if a prosecutor’s thoughts, mental impressions, and conclusions about a case could later server as the basis of a civil suit against them. 2019 UT App at ¶ 11, 440 P.3d at 951. The Utah Court of Appeals upheld the trial court’s finding that the city had an important interest in protecting attorney-client communications and attorney work product pursuant to Utah Code § 63G-2-305(17) & (18).

5. After having reviewed the written and oral arguments of the parties, the Committee finds that Sandy City properly classified the records as protected records pursuant to Utah Code § 63G-2-305(17) & (18). Accordingly, the records should be considered non-public records and not disclosed to Mr. Robinson.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Robinson 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. 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 October 2019

BY THE STATE RECORDS COMMITTEE

_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee