State Records Committee Appeal Decision 2020-60

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 20-60

By this appeal, Petitioner, Steven Onysko, seeks access to records allegedly held by Respondent, Attorney General’s Office.

FACTS

On or about September 30, 2019 Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested:

[A]ll records and documentation relating to State agents’, including but not limited to Office of Attorney General’s agents’, unsuccessful and successful contact of the former Civil Deputy, … any time commenting April 6, 2018 (her purported separation date from State service) for purpose of the State, including any of its OAG or other agents, making injury or other communication vis-à-vis the State building access card, cellphone and computer laptop still in the former Civil Chief Deputy’s possession or control through the purported May 22, 2018, theft of this property, reported in Unified Police Greater Salt Lake report.

Mr. Onysko’s request was furthered with additional sub-categories to the above.

On October 22, 2019, Respondent notified Mr. Onysko that a reasonable search of the Office found no records responsive to a specific portion of his request, but did locate two pages of email records responsive to another part of his request. Respondent also notified Mr. Onysko that those records were part of a previous GRAMA request made by Mr. Onysko and have been classified as protected attorney work product.

Mr. Onysko appealed the denial, and on December 6, 2019, the Chief Administrative Officer upheld the classification of the two email records as attorney work product. Thereafter, Petitioner filed an appeal with the State Records Committee (“Committee”). On November 12, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After an in camera review and 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 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). The Utah Supreme Court has stated that the “work product doctrine” in GRAMA does not shield records that a party would have generated pursuant to “ordinary course of business” administrative procedures even without the prospect of litigation. S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88 ¶ 25, 200 P.3d 643, 652.

3. Respondent provided to the Committee the two email records that had been found that were responsive to Mr. Onysko’s records request. Respondent argued that the record should be classified as a protected record pursuant to Utah Code § 63G-2-305(18). The Committee reviewed the email records in camera and determined that although the records had been created by attorneys, it did not involve work product of the attorneys and instead appeared to involve actions done in the ordinary course of business for Respondent unrelated to litigation. Accordingly, the Committee finds that the records were not properly classified as a protected record pursuant to Utah Code § 63G-2-305(18), and should be released as a public record.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko 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 23 day of November 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee