Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2013-12

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COLLEEN SCHULTE, Petitioner, vs.

SUMMIT COUNTY ATTORNEY’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 13-12

By this appeal, Petitioner, Colleen Schulte, seeks access to records of communications between Dean Schulte and Respondent, the Summit County Attorney’s Office.

FACTS

On May 3, 2013, Petitioner filed a request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) with Respondent. In her request, she generally asked for records showing all communications between the Summit County Attorney’s Office and Dean Schulte regarding a pending criminal case. In a letter dated May 8, 2013, Deputy Summit County Attorney, Helen E. Strachan, denied Petitioner’s records request. Ms. Strachan stated that the request was being denied because “this is a pending criminal matter and all requests need to be made through the discovery process.” Ms. Strachan further stated that this decision should be considered the final decision of the chief administrative officer of the Summit County Attorney’s Office.

Petitioner now appeals Respondent’s denial of her records request to the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on October 10, 2013, and having reviewed the disputed records in camera, 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. 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, may be classified as protected records by a governmental entity pursuant to Utah Code § 63G-2-305(18).

3. Matthew D. Bates, Prosecuting Attorney with Respondent, represented to the Committee that the disputed records involve communications between Respondent and Mr. Schulte in an active criminal investigation and prosecution by Respondent. Mr. Bates argued that Utah Code § 63G-2-305(18) provides a clear protection to communications between a prosecutor and a person who is giving information to the prosecution as part of an investigation for a criminal case. Mr. Bates added that a defendant who is the subject of a criminal prosecution might be able to have access to these types of records by filing a discovery motion with the trial judge.

4. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, and reviewing the disputed records in camera, the Committee finds that the requested records of communications between the Summit County Attorney’s Office and Dean Schulte were prepared either for an attorney, or by an attorney, in anticipation of a criminal litigation proceeding. Accordingly, they were properly classified as protected records by Respondent pursuant to Utah Code § 63G-2-305(18).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Colleen Schulte is DENIED.

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 § 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 § 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 October 2013,

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Chairperson
State Records Committee