State Records Committee Appeal Decision 2023-39

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

PAUL AMANN, Petitioner, vs

DIVISION OF RISK MANAGEMENT, Respondent,

DECISION AND ORDER

Case No. 23-39

By this appeal Paul Amann (“Petitioner”), requests a fee waiver and records allegedly held by Division of Risk Management (“Respondent”).

FACTS

On December 6, 2022, Petitioner filed a records request and fee waiver with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested a fee waiver because he is the subject of the records and the public has a strong interest in learning why Petitioner, as the State’s insurer, paid private counsel to represent the Utah Attorney General’s Office (“UAG”). With regards to his records request, Petitioner’s request had three parts:

• Copies of all records of any payments (including invoices) to Liesel Stevens, Beth Ranschau, Zach Wiseman, and/or the law firm of Ray Quinney and Nebeker (“RQN”) or anyone working on behalf of Ray Quinney, from June 15, 2022, through the present in connection with their representation of the UAG with regard to any matters related to Paul G. Amann.
• Any records of whatever justification the UAG’s office may purport for expenditures over $250,000 which have been generated since Joni Jones’ “note to file” on July 16, 2020, from July 17, 2020, to present.
• Any and all communications between employees or agents of the UAG’s office and employees or agents of Utah State Risk Management and/or employees or agents of Stevens, Ranschau, Wiseman and/or RQN in connection with their representation of the UAG’s office with regard to any matters related to Paul G. Amann, from July 17, 2020, to present

The Respondent reviewed its records and produced two responsive items. The first contained entries showing payment from the Respondent to RQN and contained redactions only for the tax identification number. The second set of records were communications between attorneys at RQN, UAG attorneys, and the Respondent’s adjuster Helen Maw. With exception to an email exchange dated November 7, 2022, that concerned a request from RQN to approve an expense for a court recording and its transcription, all responsive emails were produced with heavy redactions. The Respondent justified the redactions under “attorney- client/attorney work product privileges.”

Petitioner appealed the response to Michael Broschinsky and Ms. Terry, Respondent’s Chief Administrative Officers (“CAOs”) on March 1, 2023. In his appeal, Petitioner argued that the redactions were “without basis under GRAMA” and asked that they be lifted. Nothing was said about the invoices not being delivered and his appeal was unsuccessful.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On August 17, 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

There are three issues we must examine. First, whether responsive records were properly disclosed. Second, whether the classification over withheld documents was correct. Third, whether the redactions in the emails were legally permissible.

STATEMENT OF REASONS FOR DECISION

1. All Responsive Records Were Not Disclosed

Upon review of the record and the parties’ arguments at the hearing, it is apparent that not all responsive records were provided to Petitioner. In Petitioner’s original GRAMA request, he requested copies of both invoices and evidence of payments dating from June 15, 2022, to the date of the request that pertained to payments made to RQN for its representation of the UAG in connection with litigation concerning him. However, while payment records were produced to Petitioner, invoices were not. At the hearing, the Respondent argued that the sole issue on appeal is whether the redactions in the emails are proper, for that is what was appealed to the CAO and briefed before the Committee. Consequently, the Respondent argues the invoices should not be addressed. We don’t agree.

The GRAMA provides that “[t]he State Records Committee’s review shall be de novo, if the appeal is an appeal from a decision of a chief administrative officer issued under Section 63G-2-401.” Utah Code § 63G-2-403(10)(c)(i)(A). For guidance on what this means, we can look to our Utah Supreme Court’s explanation of de novo reviews for GRAMA appeals.

In Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, the Court examined Section 63G-2-404(6), which requires a district court review this Committee’s orders de novo. The Court said,

De novo means ‘anew.’ BLACKS’S LAW DICTIONARY (10th ed. 2014) In practice, this means the district court must make its own independent determination . . . with no deference to the Committee’s decision. To do this, the court must make its own assessment of the City’s denial.

Id. (Internal citation original. Emphasis ours.)

According to the Jordan River Court, although a de novo review concerns the underlying decision, the reviewing tribunal gives no deference to that decision. Instead, the review is to examine the governmental entity’s original denial. And even though the issue in Jordan River was a fee waiver denial, the principles of a de novo review are the same with records disputes.

Although the Court was examining Section 404’s requirement that the district court review the Committee’s order de novo, the law prescribes the same requirement to us as we review a chief administrator’s decision. Utah Code § 63G-2-403(10)(c)(i)(A). Therefore, in applying Jordan River to this situation, we must review the CAO’s denial anew and without deference; we are to look at the Respondent’s original response to Petitioner’s GRAMA request. Consequently, how the parties present the issues to us is not binding, nor are issues lost if they are not argued before the CAO or this Committee. Rather, it is our assessment of the original decision that filters out what issues we must review.

Our view on this is bolstered by recent legislation. In the 2023 legislative session, our legislature amended Section 63G-2-404 to address the preservation of issues when a party appeals to district court. That amendment states: “Except in exceptional circumstances, a petition for judicial review may not raise an issue that was not raised in the underlying appeal and order.” S.B. 231, 2023 General Session, (Sen. Bramble, Rep. Loubet) now codified as 63G-2-404(2)(b). Notably, the legislature made no such amendment to the Section 403—the section governing appeals before this Committee. Thus, the legislature intentionally limited the issues that could be presented to the district court on appeal as those that were raised in the underlying appeal. However, no such preservation requirement applies to this Committee in reviewing the CAO’s decision. From this, we infer that it is our job to sniff out the issues that need to be adjudicated under GRAMA disputes, decide and preserve them for a possible district court appeal. To preserve issues for a district court appeal is a function of high importance; it ensures that the parties can have their day in court (if they choose to appeal) and have their issues heard. Oftentimes, we hear appeals from unrepresented members of the public who may not understand the preservation doctrine and simply disagree with the denials they’ve received from the entity and its CAO. Consequently, we cannot be limited to only the issues that are briefed and argued before us because unrepresented requesters may not properly frame the issues for us. Additionally, the governmental entity may see the issues differently than the requester. Therefore, as we review the record dispute anew, it is our job to determine which issues are ripe for adjudication and which are moot.

Here, we find that the Respondent never addressed the request for invoices. When questioned about them, the Respondent claimed that it cannot be responsible to deliver the invoices because those records aren’t in its possession—they are owned and held by the UAG. True as that may be, we don’t see how the State’s insurer could pay UAG’s legal bills without ever receiving copies of the invoices. Further, we don’t read the GRAMA as requiring ownership or possession as the only operative elements when it comes to disclosing requested records. The Code defines a “record” as a document [1] that is “prepared, owned, received, or retained by a governmental entity.” Utah Code § 63G-2-103(25)(a)(i) (emphasis added). Thus, to be required to disclose the invoices, the Respondent need not own or possess them; it need only to have received them. Due to government controls, we view it as unreasonable to suppose that the Respondent paid invoices for the UAG without ever receiving them, and therefore, we find the Respondent has a duty to disclose them.

2. The Classifications of the Emails Were Proper

We now turn to whether the emails were properly classified as protected under Subsections 63G-2-305(17)-(18).

Generally, records are presumed public unless expressly provided by statute. Utah Code § 63G-2-201(2). Records that are classified as “protected” under Section 63G-2-305 are not public records. Utah Code § 63G-2-201(3). If a requested record contains both public and protected information, the government entity may redact the protected information. See Utah Code § 63G-2-308. Additionally, a record is classified as protected if it is subject to the attorney-client privilege or it was prepared by an attorney or insurer for litigation. Utah Code § 63G-2-305(17)-(18). In determining whether a record is properly classified as protected, or whether the redactions in a record are proper, the Committee may review the unredacted record in camera. Utah Code § 63G-2-403(9)(a)(ii).

At the hearing, the Committee moved to view the unredacted records in camera to determine whether the redacted portions of the email communications were classified correctly. Upon that review, the Committee found that the emails contained confidential information between RQN and UAG in which legal advice was either sought or present. See Southern Utah Wilderness Alliance v. Automated Geographic Reference Center, et. al., 2008 UT 88, ¶33 (Outlining three elements to attorney-client privilege: (1) an attorney-client relationship; (2) the transfer of confidential information; and (3) the purpose of the transfer was to obtain legal advice.) Accordingly, we find that the redacted communications were properly classified as protected under both Subsections 305(17) and (18). As a result, the redactions were permissible under the GRAMA.

3. The Evidence Does Not Favor Lifting the Redactions

In finding that the emails were correctly classified as protected, the final issue is whether the redactions may be lifted.

Here, Petitioner points us to Schroeder v. Utah Attorney General’s Office, 2015 UT 77, to argue that the Committee must weigh the public interest favoring disclosure against the interest favoring restriction, and that by doing so, we should find the public’s interest in knowing how its tax monies are used in this litigation outweighs protecting the information under attorney-client confidentiality.

Normally, once the Committee determines that a record is properly classified as protected, we then weigh “the various interests and public policies pertinent to the classification or nondisclosure” and “order the disclosure of information properly classified as private, controlled, or protected 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). However, if the record is properly classified under Subsections 305(17) or (18), then the analysis changes: The Committee must look to actual evidence supporting disclosure instead.

When a record is classified as protected under Subsections 305(17) or (18), the Committee may order the record’s disclosure “only if the person or party seeking disclosure of the record has established, 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 § 53G-2-406(1) (emphasis added). This Subsection removes the Committee’s duty to weigh the interests. Instead the burden shifts to the petitioner to show, by a preponderance of evidence, that the public interest favoring access is at least as great as the interest favoring restriction.

A careful reading of Shroeder shows that the weighing analysis is improperly performed if it’s “focused on general policy concerns without discussing how those interests are specifically applied to the records at issue in [the] case.” Id. at ¶19. That is, “the balancing analysis under GRAMA must be tethered to the specific interests of the parties and particularized application of the relevant public policies at issue.” Id. at 51 (emphasis added). Consequently, a petitioner cannot rely on generalized policy concerns as the “public interest” favoring disclosure.

Schroeder acknowledged that many of GRAMA’s protections over records “involve policies that virtually always outweigh the public’s right to know” and attorney-client confidentiality is one of them. Id. at ¶55. However, the protection over attorney-client privilege is not iron-clad. The Court explained:

But while the public’s right to know is, in the abstract, often less compelling than these policies, the weight of any particular policy varies depending on the nature of the document at issue. For example, the interest in protecting attorney work product is more compelling during ongoing litigation than it is years after a dispute has been resolved.

Id. at ¶ 55.

Therefore, we must accord Section 406’s requirements with Schroeder. That is, under Section 406, rather than perform a balancing analysis, we can only look at evidence that supports “particularized interests and public policies pertinent to the classification and disclosure . . . of information,” not general competing public policies. Id. at 57 (internal quotations omitted).

Applying these principles to the case before us, not only do we find that the public’s right to know how much the UAG’s litigation against Petitioner has cost taxpayers is more of a general policy interest rather than one particularized to Petitioner himself, but more importantly, he has proffered no evidence to show that his particular interests outweigh the general policy protections afforded by attorney-client confidentiality. Notably, Petitioner has a high burden here considering the attorney-client privilege he seeks to pierce is connected to the litigation he is currently engaged in with the UAG and which these records directly relate. Without such actual evidence to support his unique interests in the records and a showing that the public policies favoring disclosure are particularized to him and far outweigh the protections afforded by Subsections 305(17)-(18), Petitioner may not receive the records unredacted.

ORDER

THEREFORE, it is hereby ordered that Petitioner’s appeal is GRANTED in part and DENIED in part according to the following:

1. The Respondent is ordered to disclose the requested invoices.
2. The redactions in the email communications were proper and the Respondent has satisfied its duty in relation to them.
3. If Petitioner is not satisfied with the delivered invoices, he may inform the Committee’s Executive Secretary and the issue of the invoices will be heard.

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. UtahG 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 28 day of August 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee

1. “Record” means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics.” Utah Code § 63G-2-103(25)(a).