State Records Committee Appeal Decision 2022-40

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVE REGRUTO, Petitioner, v.

CARBON COUNTY, Respondent.

DECISION AND ORDER

Case No. 22-40

By this appeal, Petitioner, Steve Regruto, is requesting access to internal affairs investigation records - specifically, two email correspondence, dated May 8, 2020, and May 12, 2020, between the city attorney and employees of Respondent or the Price City Police Department.

FACTS

On February 7, 2022, Mr. Regruto made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent. Mr. Regruto requested “any and all records in the possession of the Carbon County Sheriff’s Office regarding the Price City Police Department Internal Affairs Investigation.” After not receiving a response, Mr. Regruto filed an appeal to the Chief Administrative Officer on March 7, 2022. Carbon County failed to respond to the appeal.

The State Records Committee (“Committee”) received an appeal from Mr. Regruto on April 20, 2022. On September 15, 2022, the Committee held a hearing during which the parties were allowed to participate. Respondent argued that the records in question were protected because of attorney-client privilege, and that the public interest in disclosing the records did not outweigh Respondent’s interest in not disclosing the records. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. The Committee voted to review the disputed records in camera. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

The first question is whether the records in question were properly classified as protected under Utah Code § 63G-2-305(17) and/or (18). The Committee finds that records in question were properly classified as protected. Respondent established that there was an attorney-client relationship between the communicants to the record, that the records in question contained a transfer of confidential information, and that the purpose of the transfer was to obtain legal advice. As such, the records were properly classified as protected.

The second question is whether Mr. Regruto has established by a preponderance of the evidence that the public interest favoring disclosing the records is equal to or greater than the interest favoring restricting access to the records. The Committee finds that Mr. Regruto has not established by a preponderance of the evidence that the public interest favoring disclosing the records is equal to or greater than the interest favoring restricting access to the records. As such, the Committee will not order Respondent to provide the records in question.

Finally, Mr. Regruto had requested records responsive to a formulation of questions made to Respondent. Respondent responded to this request by informing Mr. Regruto that Respondent was not in possession of records responsive to the formulation of questions. The Committee finds that there is no evidence that Respondent’s response was incorrect, and, therefore, that there is no reason at this time to believe that Respondent should be ordered to produce records responsive to the formulation of questions.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steve Regruto, 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 26 day of September 2022

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee