Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2010-17

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BLAKE A. NAKAMURA, Petitioner, vs.

SALT LAKE CITY CORPORATION, Respondent.

DECISION AND ORDER

Case No. 10-17

By this appeal, Petitioner, Blake Nakamura, representing Rail Management, Inc., (DBA “Rail Event Center”), seeks copies of records held by Respondent, Salt Lake City Corporation (“City”).

FACTS

On March 9, 2010, pursuant to the Government Records Access and Management Act (“GRAMA”), Nakamura requested records of all written and electronic communication between the City, Salt Lake County (“County”), and/or the Salt Lake Valley Health Department (“Valley Health”) regarding the Rail Event Center. Nakamura believed these documents would contain information regarding violations of a City noise ordinance, which is currently the subject of a lawsuit. On March 18, 2010, Laura Kirwan, a Salt Lake Senior City Attorney, responded to the request by sending Nakamura copies of several e-mails between the City, County, and/or Valley Health. Significant portions of the e-mails had been redacted on the basis of attorney work product protection, attorney-client privilege, and/or personal privacy, and in some instances, the entire e-mail had been redacted.

Nakamura filed an appeal with the Salt Lake City Records Appeals Board (“Appeals Board”) on May 27, 2010, arguing that the City’s records classification was improper, and that he should at least have access to the header information for each e-mail. Following an in camera review of the documents, the Appeals Board found that the protections had been appropriately extended for the protected documents, but required the City to provide Nakamura with the header information for any e-mails that had been completely redacted. After Nakamura and the City mediated many of the issues regarding the documents, the parties were unable to agree concerning eight e-mails, which had been entirely redacted except for their header information.
Nakamura now appeals to the Utah State Records Committee (“Committee”). The Committee having reviewed the evidence and arguments submitted by the parties, and having heard oral argument and testimony on August 12, 2010, 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 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. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with reasonable specificity. Utah Code Ann. § 63G-2-204(1)(b). As soon as reasonably possible, the governmental entity shall respond to the request by: (1) Approving the request and providing the record; (2) Denying the request; (3) Notifying the requester that it does not maintain the record and provide if known, the name and address of the governmental entity that does maintain the record; or (4) Notifying the requester that because of extraordinary circumstances, it cannot immediately approve or deny the request. Utah Code Ann. § 63G-2-204(3)(a).

3. Under GRAMA, “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” and “records of communications between a governmental entity and an attorney representing, retained, or employed by the governmental entity if the communications would be privileged as provided in Section 78B-1-137” are protected if properly classified by a government entity. Utah Code Ann. § 63G-2-305(17) & (18). These protections are known respectively as the attorney-client privilege and the attorney work product doctrine.

4. The City argued that the nature of the relationship between the City and Valley Health creates a sense of reciprocal attorney-client responsibility, and fosters an expectation that correspondence between the two governmental entities regarding legal advice and counsel should be protected. The City asserted that Valley Health is oftentimes an enforcer of the City’s noise ordinance. The City claimed that this relationship is substantial enough to constitute a form of attorney-client relationship with regard to the enforcement of the City’s noise ordinance.

5. Nakamura disagreed with the City’s assertions, claiming that since Valley Health is a county agency, it is not legally represented by the City. Nakamura claimed that because of an absence of evidence that Valley Health is a client of the City represented by City attorneys, the City cannot assert the attorney-client privilege for correspondence between the City and Valley Health.

6. After reviewing Nakamura’s written GRAMA requests, hearing the arguments and testimony of the parties, and reviewing the e-mails in camera, the Committee finds that the requested records fall under the protection of Utah Code Ann. § 63G-2-305(17) & (18). The Committee believes that the “common interest” relationship between the City and Valley Health regarding the enforcement of the City’s noise ordinance, is such that the attorney-client privilege and attorney work product doctrine should apply to their legal discussions and correspondence. [see footnote]

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Blake Nakamura, is denied because: (1) The requested documents are protected pursuant to Utah Code Ann. § 63G-2-305(17), (18), and (2) the City has a legal right to redact portions of correspondence protected under attorney-client privilege and the attorney work product doctrine.

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 governmental 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 Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental 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.

Dated this 19th day of August 2010.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee

Footnote: The “common interest” privilege is detailed in Utah R. Evid. 504(b): “General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, and among the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, in any combination” (emphasis added).