State Records Committee Appeal Decision 2022-54

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LYNN DAVID, Petitioner, v.

WASATCH COUNTY, UTAH, Respondent.

DECISION AND ORDER

Case No. 22-54

By this appeal, Lynn David (“Petitioner”), requests records allegedly held by Wasatch County, Utah (“Respondent”).

FACTS

On August 24, 2022, Petitioner submitted a request for records to Respondent pursuant to the Governmental Records Access and Management Act (“GRAMA”). The request for records was extensive, but, in sum, concerned the following:

1. Any documentation pertaining to Respondent’s meeting held on August 8, 2022, when the meeting members discussed the property located at 2399 W. Boulder Dr.

2. Cease and Desist Order Respondent issued on August 8, 2022 to BRBE, LLC, Eschenfelder Landscaping and/or William Eschenfelder.

3. Application for the grading permit submitted on August 18, 2022, to BRBE, LLC, including all documentation submitted with that application.

4. Documentation concerning a site inspection on lots 195, 207, 208, and 221 between May 1, 2020, and August 19, 2022.

5. Documentation relating to who reviewed and approved the grading permit application submitted by BRBE, LLC on August 18, 2022.

6. Documentation concerning when the BRBE grading permit was signed by the Engineering Coordinator.

7. Documentation concerning when the BRBE grading permit was approved by the planning commission.

8. Documentation concerning any conditions or stipulations attached to the approval of the BRBE grading permit application.

9. Documentation concerning the potential $750 fine when grading was done on the subject property without a permit or correction agreement from the Engineering Coordinator.

10. All communications received between July 20, 2022, and August 24, 2022, concerning the boulder extraction operation in Brighton Estates.

Respondent provided several responsive items but claimed others did not exist – specifically, Respondent maintained that there were no responsive records for items 1, 8, & 9 in its possession. Respondent also claimed that it did have responsive records for the remaining items, but that the records were protected under attorney-client privilege and would not be disclosed.

On appeal to the chief administrative officer, Petitioner argued that, due to the circumstances connected to the records he sought, more documents should exist than what were disclosed. He further argued the propriety of the protections that Respondent asserted. The chief administrative officer responded in turn by providing further information on one of Petitioner’s requested items (the titles of those county officials in attendance at the August 24, 2022, meeting)[1] and denied all other requests.

Petitioner appealed to the State Records Committee (“Committee”). In this appeal, Petitioner has conceded that whatever records have not been disclosed at this point are either not in Respondent’s possession or have been classified as “protected” due to attorney-client privilege. As Petitioner offers no evidence to dispute whether non-existent records do in fact exist, and he raises no issues about the documents he has received to this point, this appeal is narrowed to determine only whether Respondent has properly classified the privileged documents as protected under the GRAMA. If the classification is proper, the records may be restricted; if not, access should be granted.

The Committee held a hearing on November 17, 2022. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After carefully considering all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

The GRAMA states that a person “has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours . . . .” Utah Code § 63G-2-201(1)(a). However, if a governmental entity holds records that are confidential attorney-client privilege, the GRAMA determines those records are “protected” as long as the entity properly classifies them as such. Utah Code § 63G-2-305(17). When a requested record is protected under attorney-client privilege pursuant to § 305(17) the GRAMA gives the governmental entity discretion on whether it will disclose the record or not. Utah Code § 63G-2-201(5)(b). However, if the entity asserts attorney-client privilege and elects to restrict access, then the burden shifts on appeal to the requester who must show, “by a preponderance of evidence, that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1).

Whether Respondent has properly classified the responsive documents as “protected” under § 63G-2-305(17) because of attorney-client privilege, necessitates that we understand what constitutes that privilege. To do so, we first establish that the Committee is a public body charged to hear appeals between adversarial parties. Utah Code § 63G-2-502(1)(a). As a public body, holding hearings and determining appeals between adversarial interests, is, at minimum, a “quasi-judicial” task which requires us to “operate very much in the same manner as courts.” Common Cause of Utah v. Utah Public Service Com’n., 598 P.2d 1312, 1314 (Utah 1979). (ruling the Utah Public Service Commission performed quasi-judicial and judicial functions in nature and was required by law to operate very much in the same manner as courts when conducting hearings). Accordingly, as we draft orders in a manner similar to the courts, the GRAMA permits us to rely on court rulings to support our decisions. Utah Code § 63G-2-403(12)(a). In that vein, we look at how the courts determine attorney-client privilege in the context of the GRAMA.

To define privilege, we look to Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88. In that case, Southern Utah Wilderness Alliance sought records from Automated Geographic Reference Center which withheld responsive records on the grounds that they were protected under the GRAMA due to attorney-client privilege. Id. ¶9. On appeal, the Utah Supreme Court explained that the mere existence of an attorney-client relationship does not necessarily make all communications between the two confidential. Id. ¶33 (citing Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990). In order to establish privilege, “a party must establish (1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice.” Id. ¶33. Accordingly, whether Respondent has, in this instance, properly classified the responsive documents as “protected” will depend on whether these three elements are present.

Per its legal authority under Utah Code § 63G-2-403(9), the Committee voted to close the hearing and examine the responsive records in camera. Upon review, the Committee found that all documents were correspondences between official Wasatch County personnel and the County’s attorney and concerned official County business; the information conveyed within the documents was confidential; and the purpose of transferring that information was to obtain legal advice. Thus, we find that the requirements for attorney-client privilege protection set out in Southern Utah Wilderness Alliance are present and the records are therefore protected under the GRAMA.

Notwithstanding the protected classification, the GRAMA does allow a requester to pierce a governmental entity’s attorney-client privilege if he can prove by a preponderance of evidence that “the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1). In Petitioner’s appeal to Wasatch County’s chief administrative officer, Petitioner states that the Brighton Estates residents “have a right to the information and Wasatch County has a duty to provide it.” Petitioner’s Statement of Facts, p. 15. We think this claim goes too far. Petitioner and Brighton Estates residents certainly have a right to many government records, many of which were disclosed to Petitioner upon his request; however, there is no right to documents protected under attorney-client privilege. See Utah Code §§ 63G-2-201(3)(a); 63G-2-305(17). If Respondent does have a duty to break its privilege and deliver the documents, the burden is on Petitioner to establish it. Utah Code § 63G-2-406(1). But, aside from his conclusory claim that a duty of disclosure exists, Petitioner offers no reasoning or argument to support it. He has given no evidence showing us why the public interest favoring access to the records is greater than or equal to the interest favoring its restriction. Accordingly, we find that Petitioner has not satisfied the evidentiary burden the GRAMA requires to sidestep attorney-client privilege protection. Consequently, the Committee cannot order their disclosure.

ORDER

THEREFORE, for the foregoing reasons, we hereby order Petitioner’s appeal is 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 29 day of November 2022

BY THE STATE RECORDS COMMITTEE

________________________________________
NANCY R. DEAN
Acting Chair, State Records Committee

1 There is some ambiguity in the record on the exact date of the Wasatch County meeting. Petitioner’s GRAMA request dates the meeting as August 8, 2022, whereas Respondent’s chief administrative officer responded on appeal dating the meeting as August 24, 2022. Because Petitioner concedes that the information received from his appeal satisfied his request, we assume the discrepancy in dates is immaterial.