State Records Committee Appeal Decision 2022-58

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL AMANN, Petitioner, v.

THE OFFICE OF THE UTAH ATTORNEY GENERAL, Respondent.

DECISION AND ORDER
Case No. 22-58

By this appeal, Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by the Office of the Utah Attorney General (“Respondent”).

FACTS

On March 22, 2022, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking records connected to the Respondent’s “compliance with Utah Procurement Code,” and the Respondent’s own policy regarding procurements in relation to it retaining the Ray Quinney Nebeker law firm (“RQN”) to represent it in any matter involving Petitioner. The records requested were to include all of the following:

1. Text messages;
2. Emails;
3. Memoranda between Respondent and QRN;
4. Requests for proposals (and responses to the requests) made by the Respondent for legal representation, as mandated by the Utah Procurement Code; and
5. Documentation of former Solicitor General, Tyler Green’s, written disclosure of a relationship with RQN representative, Beth Ranschau.

In its response, dated April 13, 2022, the Respondent granted the request in part and denied in part. The Respondent informed Petitioner that his records request was not reasonably specific, but despite the lack of specificity, it provided 49 pages of records it believed were responsive to the request. However, within those 49 pages, some information was redacted under Utah Code § 63G-2-305(17) [attorney-client privilege]; 63G-2-305(18) [attorney work product]’; and 63G-2-305(23)(b) [strategy about pending litigation]. In relation to all other records, the Respondent informed Petitioner that after a reasonable search no such records were found.

Petitioner appealed the response to the Respondent’s chief administrative officer (“CAO”) arguing the Respondent’s search efforts were not reasonable, that his request was reasonably specific, and challenging the redactions.
The CAO affirmed the Respondent’s decision on all counts, determining that the request for records “of [the Respondent’s] compliance with” the Utah Procurement Code lacked specificity because such a determination would require legal analysis – something a records custodian cannot be expected to do. The CAO also determined that the Respondent had performed a reasonable search for responsive records, and that the redactions were proper.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On December 15, 2022, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

A. The Reasonableness of Respondent’s Search

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). While the GRAMA requires that an individual identify the records he seeks with “reasonable specificity,” it does not set a clear standard for the governmental entity on how to conduct its search. Utah Code § 63G-2-201(7)(b). When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance. See e.g., Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations).

Under the FOIA, when a governmental entity receives a records request, its search must be reasonable with the reviewing court looking at the entity’s process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The issue we must review is not whether remaining records may exist, but whether the entity’s search efforts were adequate. Weisberg, at 1351. If the search is challenged by the records requester, the governmental entity then bears the burden of showing that the search was reasonable. See Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir.1990). And “reasonableness” is dependent on the circumstances in the case. Weisberg, at 1351. If it’s determined that the governmental entity performed a reasonably adequate search, our Utah Administrative Rules then require the requester to provide sufficient evidence that additional records exist and are in the entity’s possession. Utah Administrative Rule R35-2(2).

Although Petitioner received some records, he did not receive others. He argues that the Respondent’s inability to locate and retrieve responsive records is symptomatic of a larger systemic records management problem. Petitioner cites to his current petition for judicial review in an unrelated case where the Respondent’s record management and search adequacy was an issue (Amann v. Utah Attorney General’s Office and Utah State Records Committee, No. 170903997 (3rd Dist. Ct.)). Whether or not Petitioner’s claims have merit, we find them immaterial to our review. Our analysis is not on Respondent’s record management system, but its search efforts within whatever system it has.

The records Petitioner seeks relate to the Respondent’s procurement of an outside law firm to represent it in litigation. The Respondent’s records counsel, Lonny Pehrson, presented to the Committee that due to certain provisions in the Utah Procurement Code and the Respondent’s operational policies, the Respondent was able to retain the law firm without engaging in a standard procurement process under Utah Code § 63G-6a et. seq. As a result, Mr. Pehrson presented that no standard procurement records such as a request for proposals and associated bids exist. Notwithstanding the non-standard procurement process, Mr. Pehrson presented that he still searched for responsive records in multiple ways. For instance, he approached personnel who were involved in the underlying matter and requested responsive records that those individuals had in their custody, if any. Additionally, he asked those individuals whether they had any text message communications with others that would be responsive to Petitioner’s request. These efforts produced the 49 pages that the Respondent delivered to Petitioner. Given the nature of the request, and the non-standard procurement process, we find Mr. Pehrson’s search efforts were reasonable.

With the Respondent satisfying its burden of showing that its search was reasonable, the burden shifts to Petitioner to show that disputed records do in fact exist. The Utah Administrative Rules states,

In any appeal to the Committee of a governmental entity’s denial of access to records for the reason that the record is not maintained by the governmental entity, the petitioner shall provide sufficient evidence in the petitioner’s statement of facts, reasons, and legal authority in support of the appeal, that the record was maintained by the governmental entity at one time, or that the governmental entity has concealed, or has not sufficiently or has improperly searched for the record.

Utah Administrative Rule R35-2(2).

Petitioner relies on other unrelated cases involving the Respondent as evidence that the Respondent has not conducted a reasonable search. Again, without direct evidence, we are not persuaded that such cases naturally equate to this one. Such evidence is circumstantial at best and creates the illogical conclusion that because the Respondent failed to perform a reasonable search in a different case, it must have failed to perform a reasonable search in this one as well. We find that Petitioner has not satisfied his burden to show that additional responsive records exist and are in the possession of the Respondent.

B. Respondent’s Redactions

In finding that the Respondent’s search for responsive records was reasonable, we now turn our attention to the 49 records it did find and disclose to Petitioner. Within those documents, the Respondent made a number of redactions, classifying the redacted information as protected under Sections 63G-2-305(17) [attorney-client privilege]; -305(18) [attorney work product]’; and -305(23)(b) [strategy about pending litigation]. Petitioner challenges the redactions.

To define privilege, and understand the attorney work product, 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). 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 our authority under Section 63G-2-403(9)(a)(i)-(ii), the Committee examined the unredacted documents in camera to determine the propriety of the redactions. After careful review, the Committee finds that the documents showed and were between an attorney and client, confidential information was being exchanged, and legal advice was present. The Committee further finds that the redactions covered the attorney’s work product and strategy for pending litigation. Thus, we conclude that the Respondent had properly classified the redactions as “protected” under Subsections 305(17), (18), and (23)(b).

Further, the Committee finds that the interests favoring lifting the redactions does not outweigh the Respondent’s attorney-client privilege, accompanying work product, nor litigation strategy, especially where the information is directly connected to ongoing litigation Petitioner has with the Respondent. While attorney-client privilege and its ancillary protections are difficult enough to pierce, Petitioner, as a current litigious opponent to the Respondent, has a heightened burden of proof to convince us that the interests of disclosure outweigh those of restriction. This he has not done.

ORDER

THEREFORE, because of the foregoing reasons, Petitioner’s appeal 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 27th day of December 2022.

BY THE STATE RECORDS COMMITTEE

_________________________________________
NANCY DEAN
Acting Chair, State Records Committee