State Records Committee Appeal Decision 2023-56

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COREY COLEMAN, Petitioner, vs

UINTAH COUNTY and VERNAL CITY, Respondents,

DECISION AND ORDER

Case No. 23-56

By this appeal Corey Coleman (“Petitioner”), requests records allegedly held by Uintah County and Vernal City (collectively, “Respondents”).

FACTS

In May, 2019, Respondent filed criminal charges against Petitioner. Petitioner alleges that the charges were filed with no police report and/or documented investigation. He also alleges that Respondent prosecuted him without releasing certain evidence. Nearly two years later, Petitioner filed records requests with Respondents pursuant to the Government Records Access and Management Act (“GRAMA”). On February 6, 2023, Uintah County received its request. Specifically, Petitioner’s request sought records relating to the 2019 charges filed against him, namely:

1. all text messages for Tegan Troutner (Uintah County prosecutor’s office) from September 16, 2022, through September 23, 2022;
2. a copy of the investigation report;
3. any communication regarding the case;
4. text communications from and to Tegan Troutner on September 20, 2022 through September 22, 2022;
5. any texts and emails from Cameron Beach, Tegan Troutner, Vernal City, Greg Lamb, Jaymon Thomas, ABH Law etc., from January 2019 through September 2019; and
6. an email to or from Greg Lamb containing 200 plus photos and attachments.

On February 17, 2023, Uintah County denied the GRAMA request, stating that “[i]tems 1, 3, 4, 5, and 6 are being denied as these are considered “protected” records pursuant to Utah Code Ann. §63G-2-305(18). This particular information will remain so classified at this time. For item number 2, there are no responsive records to your request."

Petitioner appealed the denial to the County’s chief administrative officer (“CAO”) on February 27, 2023. Upon review of the appeal, the CAO decided to release two redacted sets of text message correspondence. The CAO stated, “The redacted portions of the text messages are being redacted as protected records . . ., or because they are not considered records as they are personal communications not dealing with public business. . . .” The CAO then affirmed the denial for all remaining responsive records.

With respect to Vernal City, on March 3, 2023, Petitioner requested “all of Roxanne Affidavit and any emails associated with the creation of [sic] document from May, 2019.”[1] This request was denied on the basis that the records were protected under Utah Code § 63G-2-305(17) & (18). Petitioner appealed the denial to the City’s CAO who upheld the denial.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On September 21, 2023, the Committee held a hearing during which the parties were allowed to participate. At the hearing, Uintah County stated that it held confusion as to what records were actually being requested since some records had been delivered and the request seemed to have changed in its correspondence with Petitioner. To seek that clarification, the Committee directed Petitioner to respond. Petitioner stated that he was seeking all communications between Uintah County and Vernal City connected to his criminal case. Uintah County presented that it had provided some records to Petitioner.

Consequently, this appeal concerns outstanding records relating to communications between Respondents in connection to Petitioner and his criminal case. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

ISSUES FOR REVIEW

We are asked to determine whether the withheld responsive records are properly classified, and, if so, whether the law permits their disclosure.

STATEMENT OF REASONS FOR DECISION

1. The Records are Protected under GRAMA.

Utah law provides 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 record is a public record unless the law expressly states otherwise. Utah Code § 63G-2-201(2). If a record is protected under Section 63G-2-305, it is not a public record. Utah Code § 63G-2-201(3)(a). Pursuant to Section 305, records that are subject to the attorney-client privilege are classified as protected under GRAMA. Utah Code 63G-2-305(17). Also, records prepared for or by an attorney, employee, or agent of a governmental entity for litigation or other judicial proceedings are also protected under GRAMA. Utah Code § 63G-2-305(18).

In determining whether a requested record is subject to attorney-client privilege, we take instruction from Southern Utah Wilderness Alliance v. Automated Geographic Reference Center, 2008 UT 88. In that case, a GRAMA request was made and the governmental entity restricted access to the records on grounds that they were protected under GRAMA due to attorney-client privilege. The Court explained “the mere existence of an attorney-client relationship does not ipso facto make all communications between them confidential” Id. ¶33 (citing Gold Standard, Inc. v. American Barrick Resources Corp. 801 P.2d 909, 911 (Utah 1990). “Thus to rely on the attorney-client 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.” Southern Utah, ¶33.

At the hearing, the Committee moved to view the requested records in camera. Upon reviewing the disputed records, we find that the records satisfied the three prongs required to invoke protection under Subsection 305(17): there was an attorney-client relationship, the communications involved the transfer of confidential information, and the purpose of the transfer for legal advice. Additionally, we find that certain documents do contain information created by an attorney amid ongoing litigation. Accordingly, we find that the records are correctly classified as protected under Subsection 63G-2-305(17)-(18).

2. The Interests Do Not Favor Disclosure

A record that is classified as protected under 305(17) requires a unique analysis to determine if the protected record may be disclosed. Pursuant to GRAMA, the protected record may be ordered to be disclosed “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 § 63G-2-406(1). Notably, when weighing the interests, the courts instruct us to not consider the general interests, but the particularized interests of the parties as they apply to the unique GRAMA request and circumstances before us. Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶51 (“the balancing analysis under GRAMA must be tethered to the specific interests of the parties and the particularized application of the relevant public policies at issue.”).

First, we acknowledge that the records directly concern Petitioner. The records revolve around the legal proceedings that Uintah County brought against him. Additionally, the criminal proceedings against Petitioner concluded on August 17, 2023. This evidence, of course, weighs for Petitioner as GRAMA’s protections for attorney work product and privilege are not as compelling after litigation as it was when the proceedings were ongoing. See Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶55 (“[T]he interest in protecting attorney work product is more compelling during ongoing litigation than it is years after a dispute has been resolved.”). This evidence weighs in favor of disclosure.

However, the Committee is aware that Petitioner has filed a notice to appeal his criminal case. We are also aware that there is ongoing litigation between Petitioner and Vernal City. In addition to the regular policies behind the importance of protecting attorney work product and privilege, the fact that there is still ongoing litigation, including the criminal case appeal in which the sought after records pertain. For this, we find that the preponderance of the evidence does not weigh in favor of releasing the records. Respondents have a right, and indeed an obligation, to preserve their attorneys’ work product and communications during the pendency of the legal proceedings they have ongoing against Petitioner. Because of this, we cannot pierce GRAMA’s protections and order the records’ release. Consequently, we find that Respondents have satisfied their legal duty under GRAMA with respect to the GRAMA request before us.

ORDER
In accordance with this decision, Petitioner’s appeal is hereby DENIED.

It is so ordered.

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 October 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee

1. Roxanne Behunin is the City’s records officer whose affidavit was used in Petitioner’s criminal case.