State Records Committee Appeal Decision 2021-62

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARK PUTNAM, Petitioner, v.

WASHINGTON COUNTY ATTORNEY'S OFFICE, Respondent.

DECISION AND ORDER

Case No. 21-62

By this appeal, Petitioner, Mark Putnam, is requesting access to records allegedly held by Respondent, the Washington County Attorney’s Office.

FACTS

On June 14, 2021, Trevor Casperson made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Casperson stated in the request that he was the attorney and authorized legal representative for Mr. Putnam requesting the records on behalf of Mr. Putnam. The request was for e-mail, telephone recordings, texts, and video communications between specified individuals and the attorney prosecuting Mr. Putnam’s criminal case. In a letter dated June 17, 2021, Deputy County Attorney Steven M. Scott stated that there was an e-mail chain that was responsive to the records request, but it had been classified as a protected record pursuant to Utah Code §§ 63G-2-305(18) & -305(23). Mr. Casperson filed an appeal of the denial and in a letter dated August 2, 2021, Washington County Attorney Eric Clarke affirmed the denial of the records request.

Mr. Casperson filed an appeal with the State Records Committee (“Committee”). On December 17, 2021, the Committee held a public hearing during which the parties were allowed to participate. Counsel for Respondent appeared at the hearing but neither Mr. Putnam nor a representative for Mr. Putnam appeared at the hearing. However, after reviewing all of the written materials submitted by both parties and the oral arguments of Respondent presented at the hearing, 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). Additionally, records concerning a governmental entity’s strategy about imminent or pending litigation are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(23)(b).

3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).

4. Records containing medical, psychiatric, or psychological data about an individual is a controlled record if properly classified by a governmental entity if the governmental entity reasonably believes that: (1) Releasing the information in the record to the subject of the record would be detrimental to the subject’s mental health or to the safety of any individual; or (2) Releasing the information would constitute a violation of normal professional practice and medical ethics. Utah Code § 63G-2-304.

5. Respondent argued that the records were properly classified because there is a substantial public policy interest to restrict access. “[I]t is for the public good to afford prosecutors the protection to communicate freely regarding current and pending litigation.” Petitioner argued that “text messages and or emails with an individual who does not work for the state, is not an attorney or an employee and is not some kind of litigation advisor” should be considered public records.

6. After carefully considering all of the evidence presented, the Committee finds that the subject records are non-public records not subject to disclosure pursuant to Utah Code §§ 63G-2-302(2)(d), -304, -305(18), and -305(23). The present case closely mirrors a previous Committee case where the Utah Court of Appeals held that release of a prosecutor office’s communications revealing a prosecutor’s mental impressions and core work product “would be particularly chilling where the party seeking disclosure…intends to us the records against the very attorney…involved in the communications.” Utah Legal Clinic v. Salt Lake City Corp., 2019 UT 58, ¶20, 440 P.3d 948, 953 (emphasis in original text). Accordingly, the Committee upholds Respondent’s decision to deny Petitioner’s records request.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mark Putnam, 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 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 29th day of December 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee