State Records Committee Appeal Decision 2022-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 22-14

By this appeal, Petitioner, Steven Onysko, appeals the decision of Respondent, the Attorney General's Office, denying his request for unredacted records held by Respondent.

FACTS

On September 7, 2021, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) to the Attorney General's Office (“the AG’s Office”). Mr. Onysko requested billing records from a specified law firm on behalf of the AG’s Office related to the Amann v. Utah Attorney Gen.'s Office, 3rd Judicial Dist. Case No. 170901997 case. Mr. Onysko made a similar records request in Onysko v. Attorney Gen.’s Office, State Records Case No. 21-10 (Feb. 22, 2021).

In a letter dated September 21, 2021, Government Records Counsel for the AG’s Office notified Mr. Onysko that his records request would be processed after payment of a $150 deposit. On September 28, 2021, the AG’s Office received payment for the deposit and thereafter provided Mr. Onysko 44 pages of redacted records.
Mr. Onysko filed an appeal with the AGs Office’s Chief Administrative Officer challenging the completeness of the records, the redactions, and the assessed fee. On November 26, 2021, General Counsel Daniel Burton, partially granted and partially denied Mr. Onysko’s appeal, providing additional records to Mr. Onysko but upholding the prior decision concerning the redactions.

On December 8, 2021, Mr. Onysko filed an appeal with the State Records Committee (“Committee”). On April 21, 2022, the Committee held a hearing where the parties were allowed to participate in person and electronically. After carefully considering the parties’ arguments and the evidence presented, 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. With the enactment of GRAMA, the Utah Legislature recognized the constitutional right to the public’s right to access to information concerning the conduct of the public’s business and the public policy interest in allowing a government to restrict access to certain records as specified in GRAMA for the public good. Utah Code § 63G-2-102(1)(a) & (2).

3. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). 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 a governmental entity. Utah Code § 63G-2-305(18). GRAMA generally classifies as “protected” any record that is prepared in anticipation of litigation or discloses an attorney’s work product. Schroeder v. Utah Attorney Gen’s Office, 2015 UT 77, ¶ 33, 358 P.3d 1075, 1083.

4. The Committee has previously addressed the question of whether legal invoices may be redacted by a governmental entity as protected records pursuant to Utah Code § 63G-2-305. In Cromar v. City of Cedar Hills, State Records Committee Case No. 13-02 (Feb. 13, 2013), the Committee upheld redactions for (1) Specific dates and number of hours of service rendered on particular dates, (2) Details regarding the subject matter of legal research, (3) The names of people spoken to and the subject matter of the conversation, (4) Details regarding the subject matter of any other activity, and (5) Any other items that would disclose the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation. See also, Wasatch Cty. Courier v. Wasatch Cty., State Records Committee Case No. 00-05 (Oct. 16, 2000) ¶ 10.

5. Having carefully considered the written and oral arguments of the parties, and having reviewed copies of the redacted legal invoices, the Committee finds that the records were properly classified by the AG’s Office as protected records pursuant to Utah Code § 63G-2-305(17) & (18). This decision is consistent with previous decisions of the Committee regarding legal billing records and the protections afforded by GRAMA for certain information within those legal billing records.

6. Mr. Onysko also argued that since the AG’s Office shared the billing records with the Utah Division of Risk Management, the AG’s Office can no longer claim that the records are covered by the attorney client privilege because they have been shared with a third party. However, Utah Code § 63A-4-207(1) states that under GRAMA, a “record provided to the Division of Risk Management by any governmental entity or political subdivision covered by the Risk Management Fund for the purpose of risk control or claims activities of the division shall be considered a record of the originating governmental entity.” Records shared with another governmental entity are “subject to the same restrictions on disclosure of the record as the originating entity.” Utah Code § 63G-2-206(6)(a). Since the reason why the AG’s Office shared the legal billing records with the Division of Risk Management was for the purpose of participation in the Risk Management Fund, the Committee finds that the records did not lose their protected status under GRAMA.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Stephen Onysko, 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 2 day of May 2022

BY THE STATE RECORDS COMMITTEE

KENNETH R WILLIAMS
Chair, State Records Committee