State Records Committee Appeal Decision 2024-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ALISHA ELLINGTON, Petitioner, v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent,

DECISION AND ORDER

Case No. 24-06

By this appeal, Alisha Ellington (“Petitioner”), requests records allegedly held by Department of Health and Human Services (“DHHS”) (“Respondent”).

FACTS

Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On September 5, 2023, Ms. Ellington requested the following records from November 2022 to the date of submission:

1. All correspondence including work IM chats between Jenni Wagner, Kelly Oakeson, Andreas Rohwasser, Denice Graham (Division of Human Resource Management (“DHRM”) employee), Jennifer (DHRM employee) pertaining to me, my employment, my FMLA, and my ADA Accommodation request.

2. All correspondence between Denice Graham, Andreas Rohwasser, and the Attorney General’s Office (“AGO”) pertaining to my employment, FMLA, and ADA Accommodation request.

On September 20, 2023, Department GRAMA Coordinator Dianna Sanchez issued a letter explaining extraordinary circumstances and that she estimated a response by October 18, 2023. The extraordinary circumstances were that the Department was processing a large number of records requests and the decision to release records involves legal issues that require the Department to seek legal counsel for the analysis of statutes, rules, ordinances, regulations, or case law. That same day, Petitioner appealed the extraordinary circumstances letter to the designee of the Department’s chief administrative officer (“CAO”), Administrative Law Judge (“ALJ”) Eric Stott. Petitioner voiced her concerns that the State is abusing GRAMA to cover up retaliation in her current job.

September 26, 2023, ALJ Stott responded, upholding the decision that extraordinary circumstances exist. He found “the number of GRAMA requests [the Department] is processing is large enough to warrant a longer response time. Moreover, [the Department] has to wait for another agency to search, acquire, and produce records that are responsive to the request.” ALJ Stott explained that the Division of Technology Services (“DTS”) provided the records on September 22, 2023, and at least one Department employee worked additional unscheduled hours to begin processing the documents. Those documents still needed to undergo legal review. The estimate had moved up to October 10, 2023, and given the circumstances, ALJ Stott said that date was reasonable.

The Department was notified on September 28, 2023, that Petitioner was appealing ALJ Stott’s extraordinary circumstances decision, and that a hearing before the State Records Committee was scheduled. On October 10, 2023, Ms. Sanchez provided the Petitioner with responsive public records and information, and private records and information for which Petitioner was the subject. Many of the delivered records contained redactions, some were substantial. Ms. Sanchez explained the redaction as follows: “private personal information for individuals other than Petitioner was redacted under Sections 63G-2-302(2)(a) and (2)(d); protected investigative records were redacted under Section 63G-2-305(10(a); Zoom links, meeting ID’s, passcodes, and other information that, if disclosed, could jeopardize the security of governmental recordkeeping systems were redacted under Section 63G-2-305(12); attorney-client privileged information was redacted under Section 63G-2-305(17); work product was redacted under Section 63G-2-305(18); and other drafts and draft language were redacted under Section 63G-2-305(22).”

On October 11, 2023, Petitioner submitted an appeal request directly to the SRC, instead of filing an appeal with the CAO as instructed in the GRAMA response and required by statue. Ms. Shaw, SRC’s secretary, emailed Petitioner and explained that her appeal before the Committee regarded the claim of extraordinary circumstances and if she wanted to appeal the redactions, she would need to appeal to the CAO first. The Petitioner filed an appeal with ALJ Stott on October 13, 2023, saying that the records were not complete, did not include external communications, were improperly redacted, and were doctored and fabricated.

Petitioner has now appealed to the State Records Committee (“Committee”), On January 4, 2024, 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 redacted information was correctly classified and withheld.

STATEMENT OF REASONS FOR DECISION

At the hearing, the Committee reviewed the records in camera pursuant to Utah Code § 63G-2-403(9)(a). Upon review, the Committee now releases our findings.

Under GRAMA, “a person has the right to inspect a 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, a record that is classified as protected under Section 63G-2-2305 is not a public record. Utah Code 63G-2-201(3)(a). If a record is properly classified as protected, then, in order to lift its restriction, the requester must show, “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).

Although the records are heavily redacted, we find that the redactions are proper pursuant to Section 63G-2-305(18). That section protects “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.” Utah Code § 63G-2-305(18). The records were created by an employee and were done so in anticipation of either a judicial or administrative proceeding most likely lodged by Petitioner. Although Petitioner testified at the hearing that she had not filed an administrative complaint before her initial GRAMA request, it’s apparent from the record before us that the Respondent has a reasonable anticipation of one occurring. Therefore, we find that the records are properly classified with respect to Subsection 305(18) and the redactions are proper.

With the documents properly classified, we now turn to whether the interests favor disclosure. For this, we look to Schroeder v. Utah Attorney General’s Office, 2015 UT 77 for guidance. In Schroeder, the Utah Supreme Court examined a GRAMA request where the requested records were protected attorney-client privilege and attorney work product. The Court explained that:

. . . many of the exceptions to GRAMA’s disclosure requirements involve policies that virtually always outweigh the public’s right to know. . . . 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. Schroeder, ¶55.

Thus, while GRAMA promotes the “easy and reasonable access” of public records (Utah Code § 63G-2-102(3)(a)), it also protects the government’s interests in situations where, like here, the governmental entity must prepare itself to defend against possible litigation or administrative actions. In such situations, attorney-client privilege and work product are critical preservations for the entity.

In this case, administrative or judicial complaints aren’t in the rear-view mirror. From the presentation of the parties and the contents of the records we reviewed, it’s apparent that the anticipation of a future proceeding is reasonable. Because we find that the documents were created in anticipation of a future judicial or administrative proceeding, the burden is on Petitioner to show, by a preponderance of the evidence, that the interests favoring disclosure are at least equal to those the government has in preparing to defend itself in an adversarial proceeding. We find that Petitioner has not shown the requisite evidence to satisfy the statute and thereby compel us to invade the policy protections of Subsection 305(18).

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 29 day of January 2024

BY THE STATE RECORDS COMMITTEE

Kenneth Williams
Chair, State Records Committee