Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2012-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JUDY FAHYS, SALT LAKE TRIBUNE, Petitioner, vs.

UTAH DEPARTMENT OF COMMUNITY AND CULTURE, Respondent.

DECISION AND ORDER

Case No. 12-05

By this appeal, Petitioner, Judy Fahys, Environment Reporter for the Salt Lake Tribune, appeals a denial from Respondent, Department of Community and Culture (“DCC”), of her request for records pertaining to staff changes and/or restructuring in the archaeology section of DCC.

FACTS

In a letter dated June 27, 2011, Ms. Fahys submitted a records request to DCC pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Fahys asked for copies of communications between DCC and “other executive branch offices, offices of the Utah State Legislature, the Utah Transit Authority and the Kane County Water Conservancy District” regarding the “positions of the State Archaeologist, the assistant to the state archaeologist and the physical anthropologist.” Ms. Fahys amended her request in a letter dated July 7, 2011 narrowing the period of time from “July 1, 2005 thru today.”

After her request was denied by DCC because “the request [was] not ‘reasonably specific’ according to 63G-2-204(1)(b),” Ms. Fahys filed an appeal with the Utah State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on September 8, 2011, issued a Decision and Order dated September 16, 2011, granting Ms. Fahys’ appeal and finding that her “request was reasonably specific enough for DCC to understand what records were being requested in order to fulfill the request.” Fahys v. Utah Dept. of Community and Culture, State Records Committee Order No. 11-14 (2011), pg. 3.

Thereafter, DCC prepared a draft list of search terms designed to identify records responsive to the records request. Based upon the search terms, DCC generated approximately 5,400 documents but agreed to provide only those responsive to the request. A prehearing was held, facilitated by the Committee chair, during which DCC agreed to provide all 5400 records with the exception of those designated as private, protected, or controlled, and agreed to provide a log. Ms. Fahys filed an appeal with the Committee of DCC’s classification of 69 documents DCC classified as non-public records. The parties presented arguments and testimony at a hearing before the Committee on January 12, 2012. During the hearing, the Committee found that since the documents were too numerous to review in their entirety during the hearing, the matter was continued until the next scheduled Committee hearing. Fahys v. Utah Dept. of Community and Culture, State Records Committee Order No. 12-01 (2012). After an in camera review and further deliberations at its February 15, 2012 hearing, the Committee 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 § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. DCC presented the withheld records in four classifications: attorney client communication, referencing 63G-2-305(16)(17)& (18); drafts, referencing 63G-2-103(22)(b)(ii) and 63G-2-305(22); internal audit, referencing 63G-2-305(15); and personnel performance evaluations, referencing 63G-2-302(2)(a).

Attorney Client Communications

3. If properly classified by a governmental entity, records prepared by or on behalf of a governmental entity solely in anticipation of litigation that are not available under the rules of discovery are protected. Utah Code § 63G-2-305(16).

4. If properly classified by a governmental entity, 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 protected. Utah Code § 63G-2-305(17).

5. If properly classified by a governmental entity, records of communications between a governmental entity and an attorney representing, retained, or employed by the governmental entity are protected if the communications would be privileged as provided under Utah Code § 78B-1-137. Utah Code § 63G-2-305(18).

6. In Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, 200 P.3 643, the Utah Supreme discussed the classifications delineated under Utah Code 63G-2-305(16),(17) & (18). The Court specifically held that in order to rely upon the attorney-client privilege, pursuant to Utah Code § 63G-2-305(18), 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, ¶ 33. “[T]he mere existence of an attorney-client relationship does not ipso facto make all communications between them confidential.” Southern Utah Wilderness Alliance, ¶ 33, quoting Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911.

7. The Court also emphasized, with reference in particular to subsection (17) that it is the party relying on the privilege that has the burden of establishing that it is applicable. ¶29.

8. The Committee finds that Document #’s 4, 32, 33, 37, 38, and 40 were properly classified by DCC as protected records pursuant to Utah Code § 63G-2-305(16), (17), or (18).

9. The Committee finds that Document #’s 3, 7, 15, 19, and 20 were not properly classified by DCC as protected records. Even though they were communications with a governmental entity’s legal counsel, they were not prepared in anticipation of litigation, reflected no mental impressions nor legal theories, nor could be considered privileged communication in that the documents did not show the transfer of confidential information. Accordingly, the Committee finds that these documents should be disclosed as public records.

10. The Committee also finds that Document #’s 16 and 71 were not properly classified by DCC as protected. DCC did not carry its burden of proof that these documents involved any communication between DCC and legal counsel. Accordingly, the Committee finds that these documents should be disclosed as public records.

Drafts

11. Pursuant to Utah Code § 63G-2-103(22)(b)(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 is not a record.

12. If properly classified by a governmental entity, “drafts” are considered a protected record unless otherwise classified as a public record in GRAMA. Utah Code § 63G-2-305(22).

13. Drafts that have never been finalized but were relied upon by the governmental entity in carrying out action or policy are normally public, to the extent that the record is not expressly exempted from disclosure or access restricted under another section of GRAMA. Utah Code § 63G-2-301(3)(k).

14. The Committee finds that Document #’s 8, 10, 14, 21, 22, 28, 34, 35, 41, 42, 48, 58, 59, 60, 61, 62, 63, 64, 66, 68, 69 and 70 were properly classified either as non-records or as protected drafts by DCC.

15. The Committee further finds that Document #’s 5, 6, 9, 11, 12, 13, 17, 18, 23, 24, 25, 26, 27, 29, 30, 31, 39, 49, 65, and 67 were improperly classified either as non-records or as protected drafts by DCC and should be disclosed as public records. The Committee was unable to determine, based upon a lack of evidence, whether these drafts had been finalized or were relied upon by DCC in carrying out an action or policy. These documents should, therefore, be disclosed as public records.

Internal Audit

16. If properly classified by a governmental entity, records of a governmental audit agency relating to an ongoing or planned audit until the final audit is released are protected. Utah Code Ann. § 63G-2-305(15).

17. The Committee finds that Document # 36 is a public record as DCC testified that the audit was not ongoing.

Personnel Evaluations

18. If properly classified by a governmental entity, records concerning a current or former employee of a governmental entity, including performance evaluations, are private. Utah Code Ann. § 63G-2-302(2)(a).

19. The Committee finds that Document #’s 43, 44, 45, 46, 47, 50, 51, 52, 53, 54, 55, 56, & 57 are properly classified as private in that they are performance evaluations of an employee of a governmental entity.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Judy Fahys, Environment Reporter for the Salt Lake Tribune, is GRANTED in part and DENIED in part.

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 23rd day of February 2012

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee