Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2009-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ERIC PETERSON, REPORTER FOR THE CITY WEEKLY, Petitioner, vs.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 09-15

By this appeal, Petitioner, Eric Peterson, a reporter for the Salt Lake City Weekly (“Peterson”), seeks access to the following: (1) Internal documents, memos, or E-mails from Respondent, the Utah Attorney General’s Office (“AG’s Office”) that may have been sent between the AG’s Office and the Utah Division of Consumer Protection regarding “Mentoring of America” and its member companies; and (2) Any E-mails, files, or documents from within the AG’s Office regarding Mentoring of America.

FACTS

On or about March 16, 2009, Peterson submitted a request for records to the AG’s Office asking for the above referenced documents. Blaine Ferguson, Chief of the Commercial Enforcement Division of the AG’s Office, partially granted Peterson’s request by providing him with copies of non-litigation records. However, records deemed to be “litigation-related” were denied pursuant to Utah Code Ann. § 63G-2-305(16) through (18). Peterson was also denied access to documents/records of certain drafts and handwritten notes.

Peterson appealed the partial denial to Kirk Torgensen, Chief Deputy at the AG’s Office. On April 8, 2009, Mr. Torgensen denied Peterson’s appeal reaffirming the basis cited in the previous denial. Peterson filed a notice of appeal to the State Records Committee (“Committee”) and an initial hearing was held on Thursday, July 9, 2009. At the July 9, 2009 hearing, oral arguments were heard from the parties and certain documents were submitted by the AG’s Office for an in camera review by the Committee. The hearing was continued to allow a complete review of the documents. See, Peterson v. Utah Attorney Gen.’s Office, State Records Committee Order No. 09-09. After having determined that a “Bates” stamp was needed in order to properly identify each document, a second order of continuance was granted on August 13, 2009. See, Peterson v. Utah Attorney Gen.’s Office, State Records Committee Order No. 09-10. At a hearing held on September 10, 2009, the Committee completed its in camera review of the documents, ruled upon all remaining issues, and now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63G-2-302, -303, -304 and –305.

2. The Committee has jurisdiction to hear appeals based upon Utah Code Ann. § 63G-2-402(2) which states: “Any person aggrieved by a determination of the chief administrative officer of a governmental entity under this chapter, including persons who did not participate in the governmental entity’s proceeding, may appeal the determination to the records committee as provided in § 63G-2-403.” See also, Utah Code Ann. § 63G-2-403(1). Further, the Committee, after a hearing, “shall issue a signed order either granting the petition in whole or in part or upholding the determination of the governmental entity in whole or in part.” Utah Code Ann. § 63G-2-403(11)(a).

3. The AG’s Office argued that the Committee did not have jurisdiction to review certain documents consisting of handwritten notes requested by Peterson. However, we find that the Committee does have jurisdiction to determine whether a governmental entity’s classification or designation under GRAMA was proper pursuant to Utah Code Ann. § 63G-2-402(2). In order to determine whether the AG’s Office properly classified the documents as “non-records,” the Committee also has the jurisdiction to review the disputed documents. See also, Onysko v. Utah Dep’t of Envtl. Quality, State Records Committee Order No. 08-17, ¶ 4.

4. After reviewing the disputed documents and based upon a preponderance of the evidence, the Committee finds that the handwritten notes submitted by the AG’s Office are “records” as defined by GRAMA because they were not personal notes prepared in the employee’s private capacity or a temporary draft prepared for the originator’s personal use. Utah Code Ann. § 63G-2-103(22)(b)(i) & (ii).

5. However, records prepared by or on behalf of a governmental entity solely in anticipation of litigation that are not available under the rules of discovery, or records disclosing an attorney’s work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation, are considered protected records if properly classified by governmental entity. Utah Code Ann. § 63G-2-305(16) and (17); Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr, 2008 UT 88, 200 P.3d 643, ¶25-29. The party asserting work-product protection must demonstrate that the documents were created to assist in pending or impending litigation, and a blanket assertion that the work-product doctrine applies is insufficient to meet that burden. Id. at ¶ 29.

6. Additionally, records of communications between a governmental entity and an attorney representing, retained, or employed by the governmental entity, if the communications would be privileged as provided in Utah Code Ann. § 78B-1-137, are considered protected records if properly classified by a governmental entity. Utah Code Ann. § 63G-2-305(18), Southern Utah Wilderness Alliance, ¶¶ 32-33. However, the mere existence of an attorney client relationship does not ipso facto make all communications between them confidential. Id., at ¶ 33, following Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P2d 909, 911 (Utah 1990).

7. Based upon a preponderance of the evidence including the arguments of the parties and a review of the handwritten notes submitted by the AG’s Office in camera, the Committee finds that the handwritten records contain attorney work-product prepared solely in anticipation of litigation, and communications between the governmental entity and the attorneys representing, retained or employed by the governmental entity. Accordingly, the AG’s Office has meet its burden that the handwritten notes were properly classified as “protected” pursuant to Utah Code § 63G-2-305(16), (17), or (18).

8. Concerning the remaining records, the Committee completed an in camera review of the records and based upon a preponderance of the evidence, finds the remaining records submitted by the AG’s Office contain both public and protected records, and that the protected records include: (1) Records prepared by or on behalf of a governmental entity solely in anticipation of litigation that are not available under the rules of discovery Utah Code Ann. § 63G-2-305(16); (2) Records disclosing an attorney’s work product, including the mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation pursuant to Utah Code Ann. § 63G-2-305(17); (3) Records of communications between a governmental entity and an attorney representing, retained, or employed by the governmental entity if the communications would be privileged as provided in Utah Code Ann. § 78B-1-137 pursuant to § 63G-2-305(18); (4) Drafts pursuant to Utah Code Ann. § 63G-2-305(22); and (5) Records concerning a governmental entity’s strategy about collective bargaining or pending litigation pursuant to Utah Code Ann. § 63G-2-305(23). The table below adopted by the Committee specifically identifies each of the remaining documents submitted by the AG’s Office and the Committee’s classification determination for each document:

BATES  STAMP

DOCUMENT IDENTIFICATION

CLASSIFICATION OF DOCUMENT AS DETERMINED BY THE COMMITTEE

1-2

Print out of Website California business portal, dated April 6, 2006

Public

3-4

E-mails from Helen Peterson to Scott Reed, dated May 18, 2006

Public

5

Letter from Jeffrey Buckner to Attorney B. Ray Zoll Dated October 6, 2006

Public (Note: This document was previously provided to Peterson)

6-13

E-mails from Blaine Ferguson to Werner Haidenthaller with attachment, dated September 26, 2007 and October 5, 2007

Public

14-17

Four E-mails from Lori Edwards to Ao Pauga with responses dated January 3, 2008

Public

 

18-20

 

E-mail with attachment from Jeff Buckner to Lori Edwards dated January 8, 2008

18 Public
19-20 Protected  UCA 63G-2-305(22)

21-27

Seven E-mails from Lori Edwards to Ao Pauga dated January 9, 2008

Public

28-29

E-mail from Jeff Buckner to Kevin Olsen, dated January 24, 2008

Protected UCA 63G-2-305(16), (17), (18), and (23)

30-31

E-mail from Jeff Buckner to Blaine Ferguson, dated January 24, 2008

Protected UCA 63G-2-305(16), )17), (18) and (23)

32

E-mail from Jeff Buckner to Blaine Ferguson, dated January 30, 2008

Protected UCA 63G-2-305(16), (17), (18), and (23)

33

E-mail from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 30, 2008

Public

34

E-mail from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 30, 2008

Protected UCA 63G-2-305(18)

35-36

Two E-mails from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 30, 2008

Public

37-57

Series of e-mail correspondence from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 30, 2008

Protected UCA 63G-2-305(17), (18) and (23)

58

E-mail from Blaine Ferguson to Mark Shurtleff, dated January 30, 2008

Protected UCA 63G-2-305(17), and (23)

59

E-mail from Kirk Torgensen to Mark Shurtleff and Blaine Ferguson

Protected UCA 63G-2-305(17), (18), and (23)

60

E-mail from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 30, 2008

Public

61

E-mail from Jeff Buckner to Blaine Ferguson and Ronald Ockey, dated January 31, 2008

Protected UCA 63G-2-305(17), (18), and (23)

62

E-mail from Jeff Buckner to Kevin Olsen, dated February 8, 2008

Protected UCA 63G-2-305(17), (18), and (23)

63

E-mail from Jeff Buckner to Francine Giani, Thad Levar, Kent Nelson and Kevin Olsen, dated February 13, 2008

Protected UCA 63G-2-305(17), (18), and (23)

64

E-mail from Jeff Buckner to Blaine Ferguson, dated February 18, 2008

Protected UCA 63G-2-305(17), (18), and (23)

65-66

E-mail from Blaine Ferguson to Mark Shurtleff and Kirk Torgensen, dated February 19, 2008

Protected UCA 63G-2-305(17), (18), and (23)

67

E-mail from Kirk Torgensen to Blaine Ferguson, dated February 19, 2008

Public

68

E-mail task reminder from Lori Edwards, Dated February 27, 2008

Public

69

E-mail from Mark Shurtleff to Jeff Buckner, dated April 2, 2008

Public

70-72

Series of 3 e-mails betweent Jeff Buckner and Mark Shurtleff, dated April 3, 2008

Protected UCA 63G-2-305(18), and (23)

73-78

Series of e-mails between Jeff Buckner and Lori Edwards, dated April 3, 2008

Public

79-80

Series of e-mails between Jeff Buckner and Lori Edwards, dated April 4, 2008

Public

81-83

Draft pleading by Jeff Buckner, undated

Protected UCA 63G-2-305(22)

84

E-mail from Jeff Buckner to Lori Edwards, dated April 4, 2008

Public

85-86

Draft pleading by Jeff Buckner, undated

Protected UCA 63G-2-305(22)

87

E-mail from Jeff Buckner to Lori Edwards, dated April 9, 2008

Public

88-90

Draft pleading by Jeff Buckner, undated

Protected UCA 63G-2-305(22)

91

E-mail from Lori Edwards to Jeff Buckner

Public

92-94

Printout of website, Utah Commerce Department, dated April 9, 2008

Public

95

E-mail from Jeff Buckner to Lori Edwards, dated April 9, 2008

Public

96-97

E-mail from Blaine Ferguson to Mark Shurtleff, dated April 22, 2008

Public

98

E-mail from Jeff Buckner to Lori Edwards, dated April 22, 2008

Public

99-101

Draft pleading by Jeff Buckner, undated

Protected UCA 63G-2-305(22)

102-103

Series of e-mails between Jeff Buckner and Lori Edwards, dated April 22, 2008

Public

104-109

Series of e-mails between Jeff Buckner and Lori Edwards, dated April 23, 2008

Public

110

E-mail from Lori Edwards to Angela Hendricks, dated February 18, 2009

Public

111-118

Draft letter by Jeff Buckner, dated October 10, 2006

Protected UCA 63G-2-305(22)

119-121

Draft pleading by Jeff Buckner, undated

Protected UCA 63G-2-305(22)

122-127

Draft pleading by Jeff Buckner, undated

Protected UCA 63G-2-305(22)

128-129

Draft pleading by Jeff Buckner, undated

Protected UCA 63G-2-305(22)

130-135

Draft pleading by Jeff Buckner, undated

Protected UCA 63G-2-305(22)

136-141

Draft pleading by Jeff Buckner, undated

Protected UCA 63G-2-305(22)

142-144

Draft pleading by Jeff Buckner, undated

Protected UCA 63G-2-305(22)

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Eric Peterson is upheld in part and denied in part as follows: (1) The determination of the Utah Attorney General’s Office to deny access to the handwritten notes is upheld pursuant to Utah Code Ann. § 63G-2-305(16)(17) and (18) and the appeal of Eric Peterson as to the handwritten notes is denied; (2) the appeal of Eric Peterson is denied as to the documents identified as protected records in the above table, and the classification of the Utah Attorney General’s Office is upheld; and (3) the appeal of Eric Peterson is upheld as it pertains to the documents identified as public records in the above table and the Utah Attorney General’s Office is hereby ordered to provide said public records to Mr. Peterson within ten (10) days.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the governmental entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental entity 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.

Dated this 17th day of September 2009.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee