State Records Committee Appeal Decision 2023-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARK TRACY, Petitioner, v.

EMIGRATION IMPROVEMENT DISTRICT, Respondent,

DECISION AND ORDER

Case No. 23-02

By this appeal, Mark Tracy (“Petitioner”), requests records allegedly held by the Emigration Improvement District (“Respondent”).

FACTS

On June 6, 2022, Petitioner submitted a records request to the Respondent under the
Government Records Access and Management Act (“GRAMA”) seeking “all legal invoices and evidence of payment submitted to Emigration Improvement District from the Salt Lake City law firm Chone Kinghorn P.C., Parson Kinghorn and Harris P.C., and Gerald R. Kinghorn P.C. since August 1, 1998.”

On June 10, 2022, the Respondent responded to the request, stating that significant portions of the documented requested in the GRAMA request are classified as protected under the following subsections of Utah Code § 63G-2-305:

(17): records are subject to attorney client privilege;

(18): records prepared for or by and 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; and

(23): records concerning a governmental entity’s strategy about: (b) imminent or pending litigation.

Because of these protections, the Respondent anticipated that searching, reviewing the records, and making possible redactions of protected information would take approximately 10-15 hours to complete. The Respondent further informed Petitioner that the majority of the requested records were in the possession of its legal counsel who would need to compile and redact the records he held. The Respondent imposed a fee of $2,500 - $3,500 to fulfill the request and required a deposit of $2,500 to commence the process.

Petitioner appealed to Respondent’s chief administrative officer (“CAO”) on June 13, 2022, arguing that the statutory protections cited by the Respondent don’t apply when legal representation is secured in furtherance of present, continued illegality. Petitioner also argued that Section 305(18) does not apply because he is not requesting records being prepared for present or future litigation, only the invoices for past legal services. And, finally, he argued that the requested records do not reveal any litigation strategy and, therefore, Section 305(23)(b) does not apply. The CAO failed to respond to Petitioner’s appeal, which, under the GRAMA is treated as a denial. Utah Code § 63G-2-401(5)(b).

The Petitioner now appeals to the State Records Committee (“Committee”), challenging the Respondent’s decision. On January 19, 2023, 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

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, under certain conditions, a governmental entity may charge a reasonable fee to cover the entity’s “actual cost” of providing a record. Utah Code § 63G-2-203(1)(a). The GRAMA provides that “actual costs” may include (1) the cost of staff time for compiling the record to meet the person’s request; and (2) the cost of staff time for search, retrieval, and other administrative costs. Utah Code § 63G-2-203(2)(a)(i)-(ii). However, when assessing a fee, the costs for the efforts listed in Section 203(a) may not exceed the salary of the lowest paid employee who has the necessary skill and training to perform the efforts. Utah Code § 63G-2-203(2)(b). If the fees are expected to exceed $50, then the governmental entity may require payment of future estimated fees before beginning the process. Utah Code § 63G-2-203(8)(a)(i).

In this case, the Respondent’s legal counsel holds the bulk of the requested records and will have to search his and his firm’s records to retrieve them. Additionally, the Respondent’s counsel will have to take the time to review the records and redact any information and notations that are protected by attorney-client privilege; were made or prepared in anticipation of litigation, quasi-judicial, or administrative proceedings; and concern the Respondent’s strategy relating to pending or imminent litigation. While the Respondent may rely on its records officer or other personnel to fulfill the request for the records it holds in its possession, its legal counsel must fulfill the request for the records in storage. As the estimated timeframe for fulfilling this request is 10-15 hours, a $2,500 - $3,500 estimate for the work equates to approximately $233 - $250 per hour. We find this to be a reasonable fee in conjunction with an attorney’s time and billing rate, and within the allowances outlined in Section 63G-2-203.

ORDER

THEREFORE, this Committee ORDERS as follows:

1. The $2,500 - $3,500 fee and $2,500 deposit required by the Respondent to fulfill the request are reasonable. Petitioner’s appeal is denied.

2. Petitioner shall pay a $2,500 deposit for the Respondent to commence filling the request.

3. Upon receiving the records, Petitioner will have 30 calendar days to review the records and file a request with this Committee to reopen this appeal for the sole purpose of reviewing the propriety of the Respondent’s redactions.

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 30 day of January 2023

BY THE STATE RECORDS COMMITTEE
Ken Williams
Chair, State Records Committee