Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2011-10

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ERIC PETERSON, Petitioner, vs.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 11-10

By this appeal, Petitioner, Eric Peterson, a reporter for the Salt Lake City Weekly, seeks access to e-mail and text messages from Respondent, the Utah Attorney General’s Office.

FACTS

On March 6, 2011, Mr. Peterson filed a Government Records Access and Management Act (“GRAMA”) request with the Utah Attorney General’s Office (“AG’s Office”) for the following: (1) All e-mail correspondence between Attorney General Mark Shurtleff and Utah Representative John Dougall from 2010-present; (2) All e-mails between Mr. Shurtleff and Rocco Devilliers, or that mention “Rocco Devilliers,” from 2010 - present; (3) Text messages sent between Mr. Shurtleff and Tim Lawson from 2010- present; (4) All e-mail correspondence between Mr. Shurtleff and Rob Stahura from 2008- present; (5) Text messages between Mr. Shurtleff and Jeremy Johnson from 2010 – present; (6) E-mails between Mr. Shurtleff and Marc Jenson or any emails mentioning “Marc Jenson” from 2009 – present; (7) E-mails between Mr. Shurtleff and Jeremy Johnson, or e-mails mentioning Jeremy Johnson from Mr. Shurtleff’s account, from 2010 – present; and (8) Any e-mails mentioning “Brian Kitts” sent to or from Deputy Attorney General John Swallow between 2008 – present.

In a letter dated March 21, 2011, Paul Murphy, Director of Communications and Policy with the AG’s Office, partially granted and partially denied Mr. Peterson’s records request. Mr. Murphy stated that some records did not exist, some records were not records under GRAMA, and others were protected records pursuant to Utah Code Ann. § 63G-2-305(9) and -305(17). Mr. Peterson appealed this decision and in a letter dated April 6, 2011, Chief Deputy Attorney General Kirk Torgensen affirmed the decision to deny Mr. Peterson’s request to certain records.

Mr. Peterson appealed this decision to the State Records Committee (“Committee”). The Committee, having reviewed written arguments of the parties and having heard oral argument and testimony at hearings held on May 12, 2011 and June 9, 2011, 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 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. Records prepared by or on behalf of a governmental entity that are 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 considered protected records if properly classified by governmental entity. Utah Code Ann. § 63G-2-305(17). Under Utah law, opinion work product, which includes mental impressions, conclusions, opinions or legal theories of an attorney or party, is afforded higher protection than fact work product. S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, 200 P.3d 643, ¶ 28, following Gold Standard Inc., v. Am. Barrick Res. Corp., 805 P.2d 164, 168 (Utah 1990).

3. Personal files of a state legislator, including personal correspondence to or from a member of the Legislature are considered protected records if properly classified. Utah Code Ann. § 63G-2-305(19)(a)(i).

4. Under GRAMA, the definition of a “record” does not include:
(i) a personal note or personal communication prepared or received by an employee or officer of a governmental entity in the employee's or officer's private capacity;
(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. [Utah Code Ann. § 63G-2-103(22)(b)]

BATES STAMPED

DOCUMENT
IDENTIFICATION

CLASSIFICATION OF DOCUMENT AS DETERMINED BY THE COMMITTEE

002-062

Various Emails

Protected, Utah Code Ann. §63G-2-305(19)(a)(i)

063

Text messages

Non- Record, Utah Code Ann. §63G-2-103(22)(b)

064

Text messages

Public

066-071

Various emails

Attorney Work Product, Utah Code Ann. §63G-2-305(17)

073-077

Various emails

Drafts, Utah Code Ann. §63G-2-103(22)(b)(ii)

078-081

Various Emails

Attorney Work Product, Utah Code Ann. §63G-2-305(17)

083-the end

Various Emails

Public, and properly classified as a record, Utah Code Ann. §63G-2-103(22)(b)(i),
NOTE: Committee finds that record Bates Stamped 086 contains private information that should be redacted.

 

5. Based upon the preponderance of the evidence, the arguments of the parties, and a review of the documents submitted by the AG’s Office in camera, the Committee finds the documents contain public and protected records, and that the protected records include: (1) Records disclosing an attorney’s work product, including mental impressions or legal theories of an attorney or other representative of a governmental entity concerning litigation pursuant to Utah Code. Ann. § 63G-305(17); (2) Drafts pursuant to Utah Code Ann. § 63G-2-305(22); and (3) Personal Files pursuant to Utah Code Ann. § 63G-2-305(19)(a)(i).

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Eric Peterson is: (1) DENIED in part pertaining to documents identified as protected records, non-records, and attorney work product in the table above; and (2) the appeal of Eric Peterson is GRANTED in part pertaining to documents identified as public records in the above table. The Utah Attorney General’s Office is hereby ordered to provide said public records to Mr. Peterson within ten (10) days.

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 20th day of June, 2011.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee