State Records Committee Appeal Decision 2022-41

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL CLARA, Petitioner, v.

UTAH STATE BOARD OF EDUCATION, Respondent.

DECISION AND ORDER

Case No. 22-41

By this appeal, Michael Clara (“Petitioner”) seeks access to records alleged to be held by the Utah State Board of Education (“Respondent”).

FACTS

On or about May 16, 2022, Mr. Clara made a request for a fee waiver and for records, pursuant to the Government Records Access and Management Act (“GRAMA”). In his request, Petitioner asked for "copies of all records that the Utah UPPAC [Utah Professional Practices Advisory Commission] members and staff created, obtained and reviewed.” Petitioner also requested a fee waiver on the grounds that the release of requested records would be in the public interest and that he, Petitioner, is the subject of the records. Respondent partially granted and partially denied Petitioner’s request on May 18, 2022. Respondent provided three responsive email chains and a redacted copy of the UPPAC agenda. However, Respondent also withheld one email, which it classified as protected by attorney-client privilege pursuant to Utah Code § 63G-2-305(17). On May 20, 2022, Mr. Clara appealed to Respondent’s Chief Administrative Officer (“CAO”), who upheld the denial for access to the one email withheld, confirming the classification of the email as protected by attorney-client privilege.

An appeal filed by Petitioner was received by the State Records Committee (“Committee”) on June 6, 2022. The State Records Committee held a hearing on September 15, 2022, where the parties were allowed to present their evidence and legal arguments. 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 record in question was properly classified as protected under Utah Code § 63G-2-305(17). The Committee finds the record in question was 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 record was properly classified as protected.

The second question is whether Petitioner has established by a preponderance of the evidence that the public interest favoring disclosing the record is equal to or greater than the interest favoring restricting access to the record. The Committee finds that Petitioner has not established by a preponderance of the evidence that the public interest favoring disclosing the record 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 record in question.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Clara, 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