Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2014-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

LEE DAVIDSON, REPORTER FOR THE SALT LAKE TRIBUNE, Petitioner, vs.

UTAH STATE TAX COMMISSION, Respondent.

DECISION AND ORDER

Case No. 14-02

By this appeal, Petitioner, Lee Davidson, Reporter for The Salt Lake Tribune, seeks access to records from Respondent, the Utah State Tax Commission (“Commission”), pursuant to Utah’s Government Records Access and Management Act (“GRAMA”).

FACTS

In a letter dated October 14, 2013, Mr. Davidson requested access to and copies of the following records:

Letters, emails, memos, records of phone calls or other communication from or to the commission and/or its staff from outside parties regarding development of its policy on whether same-sex couples married in other states could file joint returns in Utah, as recently allowed by the Internal Revenue Service. Examples could include – but are not limited to – letters from or to legislators, the attorney general or the governor.

In a letter dated October 21, 2013, the Commission through its Disclosure Officer, granted in part and denied in part Mr. Davidson’s records request. Regarding the denial, the letter stated that “[c]ommunications protected by the attorney-client privilege, such as those with the Attorney General’s Office and legal counsel for the Governor, are protected under GRAMA and have not been produced.”

Mr. Davidson filed an appeal with the Executive Director of the Commission, arguing that the denied records “apparently drove policy, and amounted to the decision-making process on this matter.” Mr. Davidson claimed that since the ultimate decision affects the public and many taxpayers, the public “should have access to them to understand the decision and the process that led to it.” Regarding the records that would be considered exempt attorney-client communications, Mr. Davidson contended that the “law allows the commission to waive that privilege and release the records at its discretion” and urged the Commission to release these records in order to “improve the transparency of decision making in this matter, which is needed for public trust in government.”

Mr. Davidson’s appeal was denied by the Executive Director of the Commission in a letter dated November 18, 2013. Petitioner now appeals the denial of the GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument, testimony, and reviewing the records in camera on February 13, 2014, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. 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 that are subject to the attorney client privilege are protected records if they are properly classified by a governmental entity. Utah Code § 63G-2-305(17).

3. The attorney-client privilege protects information given by a client to an attorney that is necessary to obtain informed legal advice which might not have been made absent the privilege. S. Utah Wilderness Alliance v. Automative Geographic Reference Ctr., 2008 UT 88, ¶ 33, 200 P.3d 643, 654, following Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990). The communication must be confidential and the mere existence of an attorney-client relationship does not ipso facto make all communications between an attorney and a client confidential. S. Utah Wilderness Alliance, at ¶ 33. In order to rely upon 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. Id.

4. In the present case, testimony was presented that legal counsel for the Utah State Tax Commission is the Office of the Utah Attorney General. R. Bruce Johnson, Chair of the Commission, also testified that he can receive legal counsel from the Utah Governor’s assigned legal counsel because Mr. Johnson is a member of the Governor’s Cabinet.

5. Mr. Davidson argued that even if the attorney client privilege applied to the requested documents, he should be given access because a preponderance of the evidence supports a finding that the public interest favoring access to the records is greater than the interest favoring restriction of access based upon the Commission’s attorney client privilege. See, Utah Code §§ 63G-2-403(11)(b) & 63G-2-406(1).

6. After reviewing the arguments submitted by the parties, hearing oral arguments and testimony, and reviewing the disputed records in camera, the Committee finds that: (1) Documents numbered 1 through 15 were properly classified as “protected” pursuant to the attorney client privilege and should not be disclosed; and (2) Documents numbered 16 through 48 were not properly classified as “protected” pursuant to the attorney client privilege because a review of these documents showed that there was no transfer of confidential information for the purpose of obtaining legal advice.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Lee Davidson, Reporter for The Salt Lake Tribune, is GRANTED in part, and DENIED in part. Accordingly, Respondent, the Utah State Tax Commission shall disclose to Petitioner the documents numbered 16 through 48.

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 25th day of February 2014.

BY THE STATE RECORDS COMMITTEE

____________________________________
LEX HEMPHILL, Chairperson
State Records Committee