State Records Committee Appeal Decision 2023-21

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

GREGORY FERBRACHE, Petitioner, vs

UTAH STATE TAX COMMISSION, Respondent,

DECISION AND ORDER

Case No. 23-21

By this appeal Gregory Ferbrache (“Petitioner”), requests records allegedly held by Utah State Tax Commission (“Respondent”).

FACTS

As the attorney for the subjects of the requested records, Petitioner filed a records request with the Respondent on June 2, 2021, pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the following:

Any and all records relating to the investigation of Bonneville Equipment, and/or Steve Dabb, Scott Pruyt and/or Monika Griff to include but limited to audio recordings, video recordings, photographs, reports, documents, emails, text messages, notes, subpoenas, affidavits, memorandums, charts and/or power points.

Petitioner maintains that these records were created or are otherwise held by the Respondent because of criminal and civil investigations involving his clients. Notably, the Utah Attorney General’s Office declined to pursue any criminal charges against Petitioner’s clients and, as a result, Petitioner now seeks the relevant records.

However, the Respondent denied the request citing various Utah statutes and regulations. As they relate to the GRAMA’s scheme, the Respondent denied the request on the basis that the records were classified as protected under Utah Code §§ 63G-2-305(10); -305(15); -305(18); -305(22); and -305(51). These provisions predominantly pertain to protecting records that are related to investigations, audits and possible litigation, including protecting the information of third-party witnesses and informants.

On July 15, 2021, Petitioner appealed the decision to the Respondent’s chief administrative officer (“CAO”). Petitioner argued the applicability of each statute the Respondent relied on and averred that since criminal charges were not filed against the subjects of the records, then the records could no longer be protected. However, the CAO upheld the Respondent’s denial arguing that notwithstanding a criminal investigation being complete, if the records are connected to a civil audit, then they are still protected under the same statutory provisions.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On May 18, 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.

ISSUES FOR REVIEW

We are tasked with determining whether the subject records are properly classified as protected and, if so, whether they may be disclosed.

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). A government record is presumed to be public and able to be disclosed unless expressly restricted by statute. Utah Code § 63G-2-201(2). Thus, if a record is classified as protected under Section 63G-2-305, then its disclosure may be restricted. Utah Code § 63G-2-201(3)-(5). In pertinent part to this appeal, the following provisions of Section 305 holds that the following records are protected if properly classified by the governmental entity:

(10) records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for enforcement . . .
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings;
(c) would create a danger of depriving a person of a right to a fair trial or impartial hearing;
(d) reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source; or
(e) reasonably could be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts;

(15) records and audit workpapers that identify audit, collection, and operational procedures and methods used by the State Tax Commission, if disclosure would interfere with audits or collections;

(18) records prepared for or by an 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;

(22) drafts, unless otherwise classified as public;

and

(51) . . . an individual’s home address, home telephone number, or personal mobile phone number, if:
(a) the individual is required to provide the information in order to comply with a law, ordinance, rule, or order of a governmental entity; and
(b) the subject of the record has a reasonable expectation that this information will be kept confidential . . .”

Utah Code §§ 63G-2-305(10), -305(15), -305(18), -305(22), -305(51).

Importantly, if a record is properly classified as protected under Subsections (10) and (18), then the petitioner shoulders the burden of showing by a preponderance of the 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). If, however, records are properly classified under subsections other than (10) and (18), then we may weigh the “various interests and public policies pertinent to the classification and disclosure or non-disclosure” of the records and order their disclosure if “the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b).

Upon hearing the parties’ arguments, the Committee moved to view the records in camera to ascertain their nature and determine whether the classification was proper. See Utah Code § 63G-2-403(9)(a)(i)-(ii). The respondent had previously requested to provide a sample, given the number of records to be reviewed, which was approved by the Chair pro tem. The sample was selected by the Respondent. Upon examining the records, we find that they are properly classified under the various Subsections the Respondent has set forth.

As they pertain to subsection 305(10) and (18), Petitioner provided no evidence aside from argument to convince us that public interest favors disclosure. Moreover, as they pertain to the other Subsections the Respondent invokes, we find that the Respondent holds the records in connection with an ongoing civil audit. Despite Petitioner’s clients being the subjects of the record, we see little support that the public interest outweighs the interests favoring restriction. Accordingly, at this time we find that the interests weigh in favor of the Respondent restricting access.

ORDER

THEREFORE, for 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 26 day of May 2023

BY THE STATE RECORDS COMMITTEE

Nancy Dean
Chair pro tem, State Records Committee