State Records Committee Appeal Decision 2016-33

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL CLÁRA, Petitioner, v.

UTAH TRANSIT AUTHORITY. Respondent.

DECISION AND ORDER

Case No. 16-33

By this appeal, Petitioner, Michael Clára, seeks access to records allegedly held by Respondent, the Utah Transit Authority.

FACTS

On February 9, 2016, Mr. Clára made a request for records pursuant to the Utah Government Records Access and Management Act ("GRAMA") from the Utah Transit Authority ("UTA"). Mr. Clára requested correspondence between specified UTA employees pertaining to him, his job title, and/or associated responsibilities. Additionally, Mr. Clára requested records concerning bus stop improvements and references to a bond election.

On March 30, 2016, UTA sent a response to Mr. Clára summarizing the efforts made in responding to his records request, and requested payment of $347.50 for the copying costs for the 695 pages of documents that would be provided to him. UTA voluntarily agreed to waive all staff time associated with providing these records to Mr. Clára.

On April 13, 2016, Mr. Clára filed an appeal with UTA's Board of Trustees, claiming that he should have access to records that had been classified as protected by UTA, and that UTA should waive the fees associated with the production of the documents classified as public records. On April 22, 2016, the Board Chair for UTA's Board of Trustees, denied Mr. Clára's appeal.

Mr. Clára filed an appeal before the State Records Committee ("Committee"), and on August 11, 2016, the Committee held a hearing regarding the appeal. The parties were allowed to present their arguments, but it was determined that in order to properly review the numerous disputed records, more time would be needed for the Committee members to review the records in camera. Accordingly, a motion was made and sustained unanimously by the Committee to continue the case to allow an in camera review of the documents prior to a determination of the records classifications. See, Michael Clára vs. Utah Transit Authority, State Records Committee Case No. 16-31 (August 11, 2016). After having reviewed the records, considering all arguments by the parties, and holding a second public hearing on September 8, 2016, 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).

2. Records that are subject to the attorney client privilege are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(17). However, 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 v. Automated Geographic Reference Ctr., 2008 UT 88, ¶33, 200 P.3d 643 ("SUWA"), following Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990). 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. SUWA, ¶33. A governmental entity that creates records pursuant to a statutory requirement, and not pursuant to legal counsel's involvement, may not protect records from disclosure relying upon the "attorney client privilege" simply by "channeling work through a lawyer." SUWA, ¶35.

3. UTA claimed that documents Bates stamped #48 and #85 should be classified as protected records pursuant to the attorney client privilege provision of GRAMA found in Utah Code § 63G-2-305(17). However, a review of these documents shows that they were created as an administrative response to a records request pursuant to GRAMA, and was not in anticipation of litigation other than the normal appeals process found in GRAMA. Accordingly, the Committee finds the documents Bates stamped #48 and #85 should not be considered protected records pursuant to Utah Code § 63G-2-305(17).

4. In the alternative, UTA argued that the documents that had been Bates stamped #48 and #85, should be protected records pursuant to Utah Code § 63G-2-305(10), which generally allows records to be classified as protected records if they were created or maintained for "civil, criminal, or administrative enforcement purposes..." However, since the records were created in response to a records request made under GRAMA (an administrative proceeding), that fact by itself is not sufficient to trigger the protections provided under Utah Code § 63G-2-305(10). Accordingly, the Committee finds that the documents Bates stamped #48 and #85 should be classified as public records.

5. The second group of records examined were Bates stamped #51 and #52. These records involved an email exchange discussing a newspaper article published in the Salt Lake Tribune. UTA classified these records as protected pursuant to Utah Code § 63G-2-305(17). However, an examination of these records did not show that they were the types of records that would be protected under the attorney client privilege, and therefore, they should be classified as public records.

6. The third group of records were Bates stamped #45. These records involved email correspondence discussing potential future litigation. UTA classified these records as protected records pursuant to Utah Code §§ 63G-2-305(10)(e), -305(17), and (18). Utah Code § 63G-2-305(10)(e) protects records that were created or maintained for civil, criminal, or administrative enforcement purposes if release of the records "reasonably could be expected to disclose investigative or audit techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts." Utah Code § 63G-2-305(18) protects records properly classified by the governmental entity if they were "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."

7. After having reviewed these records in camera, the Committee finds that UTA properly classified the records Bates stamped #45 as protected records pursuant to Utah Code §§ 63G-2-305(10)(e), -305(17), and (18).

8. The fourth group of records concerned an email of an internal video (Bates stamp #104). There records were classified by UTA as protected records pursuant to Utah Code § 63G-2-305(6) (records, the disclosure of which would impair governmental procurement proceedings or give unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity) and Utah Code § 63G-2-305(17). After having reviewed these records in camera, the Committee upheld UTA's classification of these records.

9. The fifth group of records, Bates stamped #106, involved UTA forwarding an article to their legal counsel. UTA classified this record as protected pursuant to Utah Code §§ 63G-2-305(17) and -305(23) (records concerning a governmental entity's strategy about collective bargaining or imminent or pending litigation). After having reviewed this record in camera, the Committee found that this record should be classified as public because the mere forwarding of an article in this respect, did not trigger the protections of Utah Code §§ 63G-2-305(17) or -305(23).

10. The last group of records were Bates stamped specifically #77 and #78, and included all remaining records not previously reviewed in this Order. These records were classified as protected records by UTA pursuant to Utah Code §§ 63G-2-305(17), -305(18), and -305(22) (drafts, unless otherwise classified as public). The Committee found that these documents were appropriately classified as protected records pursuant to Utah Code § 63G-2-305(17), -305(18), and/or -305(22).

11. A log that was provided to the Committee gave a description of UTA's records and its classification of the records. When denying a request for a record in whole or in part, the governmental entity is required to provide: (1) A description of the record or portions of the record to which access was denied, provided that the description does not disclose private, controlled, or protected information or information exempt from disclosure; and (2) Citations to GRAMA or other laws or rules that exempt the record or portions of the record from disclosure. See, Utah Code 63G-2-205(2)(a) & (b). A review of the log shows that it does not disclose non-public information and complies with the provisions found in Utah Code § 63G-2-205. Accordingly, the log should be provided to Mr. Clára.

12. In addition to Mr. Clára's appeal of the non-public classifications by UTA of the subject records, Mr. Clára also appealed UTA's decision to deny his request for a fee waiver. Utah Code § 63G-2-203(1) states that a governmental entity may charge a "reasonable fee to cover the governmental entity's actual cost of providing a record." Actual costs may include the cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person's request. Utah Code § 63G-2-203(2)(a)(i).

13. A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record; or (3) The requester's legal rights are directly implicated by the information in the record and the requester is impecunious. Utah Code § 63G-2-203(4). A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied. Utah Code § 63G-2-203(6)(a). The adjudicative body hearing the appeal has the same authority when a fee waiver or reduction is denied as it has when the inspection of a public record is denied. Utah Code § 63G-2-203(6)(b).

14. Mr. Clára claimed that he was impecunious because of his termination as an employee of UTA, and therefore, could not afford the fee for the requested records. Counsel for UTA stated that UTA had already produced numerous pages of records to Mr. Clára at no cost, and in consideration of taxpayer funds used to provide the records to Mr. Clára, it would not be unreasonable for Mr. Clára to bear some of the costs associated with the production of the records.

15. Utah Code § 63G-2-203(4) grants governmental entities some discretion in determining whether a record request should be fulfilled without charge. After having reviewed the testimony and the written arguments of the parties, the Committee finds that UTA's denial of Mr. Clára's request for a fee waiver was not unreasonable.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Clára, is GRANTED in part and DENIED in part.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). 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(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 19th day of September 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee