State Records Committee Appeal Decision 2020-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MIKE FAVERO, Petitioner, v.

LOGAN CITY SCHOOL DISTRICT, Respondent.

DECISION AND ORDER

Case No. 20-07

By this appeal, Petitioner, Mike Favero, seeks access to records held by Respondent, the Logan City School District.

FACTS

On October 1, 2019, Mr. Favero submitted a records request to the Logan City School District (“District”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Favero requested from January 1, 2019 to October 1, 2019 “any and all legal expenses” the District had paid, which legal firms had been paid, how many hours were billed, and “any other information you have in regards to any legal expenses.”

On October 15, 2019, Jeff Barben, Records Officer for the District, responded with an e-mail message to Mr. Favero stating that the “records you requested are attached.” However, the records sent to Mr. Favero redacted the descriptions of services provided by a law firm. On November 7, 2019, Mr. Favero filed an appeal with the Superintendent of the District, Frank Schofield. Superintendent Schofield responded on November 14, 2019, stating that the information sent to Mr. Favero had been redacted because it was subject to the attorney client privilege.

On November 30, 2019, Mr. Favero filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony on January 9, 2020 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 the 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. Auto. Geographic Reference Ctr., 2008 UT 88, ¶ 32, 200 P.3d 643, 654, following Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990).

3. Legal counsel for the District noted in his statement to the Committee that the District “acknowledges that its original redactions of the [law firm] invoices swept too broadly.” However, specific portions of the description of work were still redacted because “the description of work [is] properly within the scope of the attorney-client privilege and therefore are protected.”

4. After considering the arguments of the parties and reviewing the disputed records in camera, the Committee finds that the descriptions of services provided by the law firm within the invoices for Respondent are not protected by the attorney client privilege. A review of them show that they do not appear to be legal advice from an attorney to a client. The present case is very similar to a previous case where the Committee similarly found that legal invoices provided to a governmental entity did “not contain legal advice, analysis or discussion of confidential or privileged communication between an attorney and a client that would be protected by the attorney-client privilege.” See, Johnson v. Salt Lake City Dept. of Pub. Util., State Records Committee Case No. 09-11 (Aug. 24, 2009) ¶3. Accordingly the Committee finds that the invoices should be provided to Mr. Favero unredacted.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mike Favero, is hereby GRANTED.

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 21st day of January 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
TOM HARALDSEN, Chairperson
State Records Committee