State Records Committee Appeal Decision 2023-34

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ADAM HERBETS (Fox 13) Petitioner, vs

UTAH GOVERNOR’S OFFICE, Respondent,

DECISION AND ORDER

Case No. 23-34

By this appeal Adam Herbets (“Petitioner”), requests records allegedly held by Utah Governor’s Office (“Respondent”).

FACTS

On January 11, 2023, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested:

• Copies of all electronic communication, including but not limited to emails and text messages sent or received by Utah Governor’s Office employees (including the governor) related to Jared Rigby between January 1, 2022, and present day, plus any responses to those messages.
• Copies of all electronic communication, including but not limited to emails and text messages mentioning the following keywords between December 19, 2022, and present day, plus any responses to those messages.
  “Herbets”
  “Herberts”
  “Fox13”
  “Fox 13”

Respondent provided numerous records responsive to the request. Petitioner was not charged for any of the records provided; however, it did withhold some records on the grounds, stating the following:

Certain records have been classified as private or protected and redacted or not released to the extent that they concern a current or former employee of, or applicant for employment with a governmental entity, are subject to attorney client privilege, are drafts, or would reveal the governor’s contemplated policies or courses of action before the governor has implemented or rejected those policies or made them public. See Utah Code §63G-2-302(2)(a), -305(17), (22), (29). Finally, certain email addresses, mobile device numbers, personal information, and personal notes have been redacted or not released as private or non-records. See Utah Code §63G-2-103(22)(b), -302(2)(d).

Petitioner appealed to the Office’s chief administrative officer (“CAO”) on February 9, 2023. The CAO responded on February 17, 2023, affirming the denial in part and reversing the denial in part. As part of the response, the CAO provided 130 pages of records and withheld 123 other records. With respect to the withheld records, the CAO provided a description of them by categorizing them in the following manner:

• Offers and conditions of employment and other records related to an applicant for employment;
• Responses to media requests;
• Potential litigation;
• Internal updates regarding law enforcement issues;
• Evaluation of courses of action and related decision-making;
• Confidential information shared in an attorney client context; and
• Provision of legal services

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On July 20, 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 must determine whether the records are properly classified and if they must be released.

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). Further, a record that is private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5). When analyzing whether a governmental entity has correctly classified redacted information as protected, this Committee has the authority to view the records in camera and review the information unredacted. Utah Code § 63G-2-403(9)(a)(ii). At the hearing, the Committee moved to view the unredacted contract in camera to aid it in its analysis.

In the appeal before us, the Respondent has withheld 123 records and classified each as either private or protected in accordance with various provisions of Sections 63G-2-302 and 305. These classifications span from privacy interests, protection of governmental employee personnel files, to attorney-client and executive privilege over the governor’s records. Upon reviewing the records and privilege log in camera, we determine that the classifications are proper and the records need not be released.

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 1 day of August 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee