State Records Committee Appeal Decision 2020-62

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ALEXANDER CRAMER, Petitioner, v.

SUMMIT COUNTY. Respondent.

DECISION AND ORDER

Case No. 20-62

By this appeal, Petitioner, Alexander Cramer, seeks access to records allegedly held by Respondent, Summit County.

FACTS

On May 6, 2020, Petitioner Alexander Cramer, on behalf of The Park Record, requested correspondence between April 13, 2020 and May 1, 2020 regarding Respondent’s Joint Public Health Order 2020-05 issued on April 30, 2020. Mr. Cramer stated that he should receive a fee waiver for the records because they would be used “in newspaper articles in furtherance of the public good in knowing how its government has responded to the COVID-19 pandemic.”

In an e-mail dated May 11, 2020, Blaine S. Thomas, Deputy County Attorney for Respondent, denied Mr. Cramer’s records request. Mr. Thomas stated that the records were classified as protected records because they contain sensitive information the disclosure of which would jeopardize the security of governmental programs contrary to law or public policy pursuant to Utah Code § 63G-2-305(12). Mr. Thomas further stated that most of the records are protected by the attorney-client privilege under Utah Code § 63G-2-305(17) or drafts under Utah Code § 63G-2-305(22).

On May 28, 2020, Mr. Cramer filed an appeal with Respondent’s Chief Administrative Office. On June 4, 2020, Thomas S. Fisher, County Manager for Respondent, issued a decision partially granting the appeal for 26 records, but denying the appeal for the remaining requested records. Mr. Cramer filed an appeal with the State Records Committee (“Committee”) on July 2, 2020. The present appeal was first heard by the Committee on September 24, 2020 with each of the parties participating electronically. At that hearing, the Committee unanimously voted to continue the hearing to November 12, 2020, in order to allow the Committee members to properly review the records provided by the Respondent in camera. See, Cramer v. Summit Cty., State Records Committee Order No. 20-51 (Sept. 30, 2020). After having reviewed the records in camera, the Committee held a hearing on November 12, 2020 and 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 the attorney client privilege, or prepared for or by an attorney of a governmental entity for, or in anticipation of litigation, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17) & (18). Drafts, unless otherwise classified as public, are also protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(22).

3. After having reviewed the records in camera, the Committee finds that the disputed records should be released to Mr. Cramer as public records. The Committee notes that the review of the records show that they involve the conduct of the public’s business regarding COVID-19, an issue for which there is great public interest regarding the actions of governmental entities. See, Utah Code § 63G-2-102(1)(a).

4. The Committee found that some of the records are records that Respondent claims to be covered by the attorney-client privilege pursuant to Utah Code § 63G-2-305(17). However, many of the records that are claimed to be protected pursuant to Utah Code § 63G-2-305(17) do not involve legal counsel or attorney impressions, and instead appear to be records generated pursuant to the “ordinary course of business” of Respondent dealing with the COVID-19 pandemic without the prospect of litigation. See, S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88 ¶ 25, 200 P.3d 643, 652. Additionally, some of the records involved drafts which can be classified as protected records pursuant to Utah Code § 63-2-305(22).

5. Accordingly, the Committee upon consideration and weighing the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order disclosure of the records. Many of the records should be considered public records, but even for records where the information was properly classified as protected, the public interest favoring access is greater than the interest favoring restriction of access. Utah Code § 63G-2-403(11)(b). The Committee finds that Mr. Cramer has established by a preponderance of the evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access. See, Utah Code § 63G-2-406(1). However, private information contained in the employee newsletter shall be redacted by Respondent as non-public information prior to release of the records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Alexander Cramer 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