Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2011-12

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DAN SCHROEDER, Petitioner, vs.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 11-12

By this appeal, Petitioner, Dan Schroeder, seeks access to documents regarding a criminal investigation of “Envision Ogden” by the Utah Attorney General’s Office (AG’s Office) that commenced in March 2009 and concluded in March 2011.

FACTS

On March 5, 2011, Mr. Schroeder requested from the AG’s Office “any and all reports, correspondence, subpoenas, notes, and records gathered as evidence” regarding an investigation of “Envision Ogden.” The AG’s Office provided some records but denied the release of other records including: (1) a draft press release (2) a post it note with handwritten information; (3) a financial summary spreadsheet regarding contributions that were made to “Envision Ogden;” and (4) bank records from Wells Fargo Bank regarding the “Envision Ogden” account. On March 28, 2011, Mr. Schroeder appealed the partial denial to Deputy Attorney General Kirk Torgensen. Mr. Torgensen upheld the previous denial finding that the information sought by Mr. Schroeder was protected pursuant to Utah Code § 63G-2-305(16)-(18) as privileged information.

Mr. Schroeder now appeals to the Utah State Records Committee (“Committee”). In his appeal, Mr. Schroeder has narrowed the scope of his request to the following documents:

BATES STAMPED

DOCUMENT IDENTIFICATION #

0004

1. Post-It Note names and phone numbers

00006-7

2. Draft Press Release

000011-16

3. Register Report (Quicken) created from Wells Fargo Records

00131-140

4. Wells Fargo Business Account Application

00144-145

5. Declaration for Records of Regularly conducted Business Activity (Deposits)

00149-441

6. Bank statements, Deposits slips, Deposited checks



The Committee, having reviewed the documents in camera and having heard oral argument and testimony on August 11, 2011, 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. Pursuant to Utah Code Ann. § 63G-2-305(16), (17) & (18), records prepared by or on behalf of a governmental entity that are 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. See also, S. Utah Wilderness Alliance v. Auto. Geographic Reference Ctr., 2008 UT 88, 200 P.3d 643.

3. Utah Code Ann. § 63G-2-103(22)(b)(i)-(ii) states that a "record" does not mean:
(i) a personal note or personal communication prepared or received by an employee or officer of a governmental entity in the employee's or officer's private capacity; or
(ii) a temporary draft or similar material prepared for the originator's personal use or prepared by the originator for the personal use of an individual for whom the originator is working.

4. Generally, records describing an individual's finances are private if properly classified by a governmental entity. Utah Code Ann. § 63G-2-302(2)(b). See, Utah Code Ann. § 63G-2-302(2)(b)(i-iii) for exceptions.

5. A record to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, including records for which access is governed or restricted as a condition of participation in a state or federal program or for receiving state or federal funds, are not public pursuant to Utah Code Ann. § 63G-2-201(3)(b)(3).

6. A “draft” is a protected record if properly classified by a governmental entity “unless otherwise classified as public.” Utah Code Ann. § 63G-2-305(22).

7. Based upon a preponderance of the evidence, the arguments of the parties, and a review of the documents submitted by the AG’s Office in camera, the Committee finds the following: Document #1 (post-it-note) was improperly classified as a non-record pursuant to Utah Code Ann. § 63G-2-103(22)(b)(i) and further, it is also improperly classified as protected pursuant to Utah Code Ann. § 63G-2-305(16) & (17). The Committee is convinced the record contains pertinent information which does not qualify as protected, based upon the above referenced statues, and therefore, should be released as a public record.

8. Document #2 (Draft-Press Release) is properly classified as a draft and therefore, is a protected record pursuant to Utah Code Ann. § 63G-2-305(22).

9. Document #3 (Quicken Report) was improperly classified as a protected record pursuant to Utah Code Ann. § 63G-2-305(16) (17) & (18). The Committee is convinced the documents are not records prepared by or on behalf of the AG’s Office disclosing an attorney’s work product, including the mental impressions or legal theories of an attorney or other representative of the AG’s Office concerning litigation. Accordingly, the record is public and should be released.

10. Document #4 (Wells Fargo Business Account Application) and Document #5 (Declaration for Records of Regularly conducted Business Activity) were properly classified pursuant to Utah Code Ann. §63G-2-201(3)(b) in that they are records to which access is restricted by another state statute. Under the Utah Financial Institutions Act, the existence of an account, the opening and closing dates of an account, the name under which an account is held, and the name, address, and telephone number of an account holder is a “non-protected record” if the record is maintained by a financial institution to facilitate the conduct of the financial institution’s business regarding a person or account. Utah Code Ann. § 7-1-1001(1)(c). A “protected record” is “a record that is not defined as a non-protected record.” Utah Code Ann. § 7-1-1001(1)(d). Accordingly, the Committee finds that the records should be released pursuant to the aforementioned statute, but only after the redaction of any private and/or protected information contained within the records.

11. Document #6 (bank statements, etc.) are private records pursuant to Utah Code Ann. § 63G-2-302(2)(b)&(d) and should not be disclosed. The records are documents describing an individual’s finances, and the release of such documents would constitute a clearly unwarranted invasion of privacy.

BATES STAMPED

DOCUMENT
IDENTIFICATION

CLASSIFICATION OF DOCUMENT AS DETERMINED BY THE COMMITTEE

0004

1. Post-It Note

Public

00006-7

2. Draft Press Release

Protected, Utah Code Ann. §63G-2-305(22)

000011-16

3. Quicken Financial Summary Report

Public

00131-140

 

00144-145

4. Wells Fargo Business Account Application and;
5. Declaration of Records of Regularly Conducted Business activity (Deposits)

Non-public, but subject to release after proper redactions are in place, Utah Code Ann. §63G-2-201(3)(b)

00149-441

6. Bank statements, Deposit slips, Deposited Checks

Private, Utah Code Ann. §63G-2-302(2)(b)&(d)

 

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Dan Schroeder is (1) DENIED in part pertaining to documents identified as private records and non-records, in the table above; and (2) the appeal of Dan Schroeder is GRANTED in part pertaining to documents identified as public records and public but subject to redactions in the above table. The Utah Attorney General’s Office is hereby ordered to provide said public records to Mr. Schroeder 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 government 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 records committee upon production of the records; or (2) a notice of intent to appeal. If the government 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.

Entered this 22nd day of August 2011

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Vice Chairperson
State Records Committee