Section 3.4 Protected Records
Protected records usually do not contain data about individuals, but they contain information that is restricted in the public interest. Currently, GRAMA includes 63 categories of protected records. Many records are protected only when certain situations or circumstances exist.
Some general categories of protected records are: private business interests, government business and economic interests, government negotiation and legal interests, government operations, safety and security interests, and records of particular governmental entities with interests for restriction.
Some examples of restricted records include:
- commercial or non-individual financial information if disclosure could result in injury, unfair competitive advantage, or impair obtaining information in the future;
- commercial or financial information to the extent that disclosure would lead to financial speculations that would be detrimental to government or the economy;
- records the disclosure of which could cause commercial injury or result in a competitive advantage to competitor of a commercial project entity;
- test questions and answers to be used in license certification, registration, or academic exams;
- drafts, unless otherwise classified as public;
- records the disclosure of which would give an unfair advantage to someone proposing to enter into a contract or agreement, except bids and proposals cannot be restricted after the bid has been awarded;
- records that identify real property or the value of real property under consideration for public acquisition;
- records created for audit purposes if release could interfere with the audit. Additionally, records which, if disclosed, will interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; and records which, if disclosed, would create a danger of depriving a person of a right to a fair trial or impartial hearing;
- records subject to attorney client privilege;
- transcripts, minutes, or reports of the closed portion of a meeting of a public body;
- an individual's home address, home telephone number, or personal mobile phone number, unless classified as public, if the information was required to comply with a law, ordinance, rule, or order of a government entity; and the subject has a reasonable expectation that this information will be kept confidential.
Specificity of classifications
Unlike the list of examples of public records found in Section 63G-2-301—which are not exhaustive—the lists in the restricted classifications of private and protected are complete. In order for a record to be classified as private, controlled, or protected, it must be stated in the law.
In any classification process, a careful reading of the law is required. Classification statements are often qualified or conditional. For example, it is not sufficient that disclosure of a record might be an invasion of privacy; it must constitute a “clearly unwarranted invasion of personal privacy.” (Subsection 63G-2-302(2)(d), emphasis added) The Utah Supreme Court has ruled, “GRAMA's private and protected classification of records that ‘constitute a clearly unwarranted invasion of personal privacy’ does not sanction denying access to a record merely because it invades personal privacy. To qualify for nonpublic classification a record must not only invade personal privacy, it must do so in a ‘clearly unwarranted’ manner.” (Deseret News Publishing Company V. Salt Lake County, No. 20060454) An example comes from a state records committee decision, where it ruled that graphic crime scene photographs were a “clearly unwarranted invasion of personal privacy.” (Kurt Danysh, Petitioner, Vs. Unified Police Department, Respondent, Decision and Order, Case No. 12-09)
An example in the protected classification regards investigative records. Investigation records by themselves are not protected; they are protected only if the other specific conditions stated in the law exist. (Subsection 63G-2-305(10))
63G-2-305. Protected Records.
. . . .(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, discipline, licensing, certification, or registration purposes;
- (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;
Attorney client privilege
The Utah Supreme Court has ruled that records produced in the regular course of business are not protected records under the provision of records prepared in anticipation of litigation. “A document is prepared in the ordinary course of business when it is created pursuant to routine procedures or public requirements unrelated to litigation.. . .Their mere use in litigation does not render them exempt under GRAMA.” (Southern Utah Wilderness Alliance, V. The Automated Geographic Reference Center, No. 20060813.)
63G-2-305. Protected Records.
. . . . The following records are protected if properly classified by a governmental entity: . . . .
(17) records that are subject to the attorney client privilege;
(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;
Additionally, the Court ruled that the mere existence of a relationship between a governmental entity and its attorney or attorneys does not rise to the level of being protected under attorney client privilege. The provisions of attorney client privilege are found in the Judicial Code. (Title 78B) The Utah Supreme Court explains that “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 Wilderness Alliance, V. The Automated Geographic Reference Center, No. 20060813.)
78B-1-127. Witnesses -- Privileged communications.
. . . .(2) An attorney cannot, without the consent of the client, be examined as to any communication made by the client to the attorney or any advice given regarding the communication in the course of the professional employment. An attorney's secretary, stenographer, or clerk cannot be examined, without the consent of the attorney, concerning any fact, the knowledge of which has been acquired as an employee.
GRAMA references drafts several times and records officers should be acquainted with the differences. GRAMA focuses on how the draft is used to determine its status.
- a temporary draft is not a record if used temporarily and not maintained by the governmental entity (Subsection 63G-2-103(22)(b)(ii))
- a draft is a public record when relied upon to make decisions or take action or if circulated outside of government or a private contractor (Subsection 63G-2-301(3)(j))
- a draft is a protected document if it is not a public document (Subsection 63G-2-305(22))