State Records Committee Appeal Decision 2020-22

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CORBIN VOLLUZ Petitioner, v.

BRIGHAM YOUNG UNIVERSITY POLICE Respondent.

DECISION AND ORDER

Case No. 20-22

By this appeal, Petitioner, Corbin Volluz, seeks access to records allegedly held by Respondent, Brigham Young University Police.

FACTS

In a letter dated May 16, 2019, Mr. Volluz requested from the Brigham Young University Police (“Respondent”) records related to a specific police investigation undertaken by Respondent. The records request was made pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Volluz’s request was denied by Respondent on June 3, 2019 finding the requested records were non-public records. Mr. Volluz filed an appeal with Police Chief Chris Autry on June 3, 2019, arguing that records of the investigation should be released “to promote transparency by policy agencies.” In a letter dated June 20, 2019, Police Chief Autry affirmed the prior decision finding that the requested documents had been properly classified.

Mr. Volluz filed an appeal with the State Records Committee on June 25, 2019. On May 14, 2020, the parties appeared electronically for a hearing before the Committee presenting their arguments concerning the classification of the records. In order to determine whether the requested records are considered non-public records pursuant to the attorney client privilege, the Committee voted to review the records in camera as allowed by Utah Code § 63G-2-403(9) and Utah Admin. Code R. 35-1-2(5). Volluz v. Brigham Young Univ., State Records Committee Case No. 20-20 (May 15, 2020). After having completed an in camera review of the records, the Committee deliberated concerning the appeal in a hearing held on June 12, 2020 with the parties again appearing electronically. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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 attorney client privilege are protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(17). The purpose of the attorney client privilege is to protect “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, quoting Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990). In order to rely upon the attorney client privilege, a party 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. Id., 200 P.3d at 655.

3. 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 also protected records if properly classified by the governmental entity. Utah Code § 63G-2-305(18). GRAMA protections for records prepared by or on behalf of a governmental entity in anticipation of litigation or an attorney’s “work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation” are nearly identical to the protection provided by both the Federal and Utah Rules of Civil Procedure, widely referred to as the “work-product doctrine.” Schroeder v. Utah Atty. Gen. Office, 2015 UT 77, 37, 358 P.3d 1075, 1084. Therefore, case law interpreting state and federal procedural protections for attorney work product may be relied upon to define the scope of protection afforded by GRAMA. Id.

4. After having reviewed the records in camera, the Committee finds that Respondent properly classified the records as protected records pursuant to Utah Code §§ 63G-2-305(17) & -305(18). The review of the records showed that they consist of records either subject to the attorney client privilege or attorney work product. Additionally, although some of the records include communications between Respondent and its parent entity Brigham Young University, those records are still protected under the common legal interest privilege because of the relationship between Respondent and Brigham Young University. See, Nakamura v. Salt Lake City Corp., State Records Committee Case No. 10-17 (Aug. 19, 2010), fn., following Utah R. Evid. 504(b).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Corbin Volluz 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 19th day of June 2020.

BY THE STATE RECORDS COMMITTEE

KENNETH WILLIAMS, Chair Pro-Tem