Salt Lake City Corporation v. Haik

2014 UT App 193, 334 P.3d 490, 767 Utah Adv. Rep. 9, 2014 WL 3953476, 2014 Utah App. LEXIS 197
CourtCourt of Appeals of Utah
DecidedAugust 14, 2014
Docket20130383-CA
StatusPublished
Cited by3 cases

This text of 2014 UT App 193 (Salt Lake City Corporation v. Haik) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salt Lake City Corporation v. Haik, 2014 UT App 193, 334 P.3d 490, 767 Utah Adv. Rep. 9, 2014 WL 3953476, 2014 Utah App. LEXIS 197 (Utah Ct. App. 2014).

Opinion

Opinion

BILLINGS, Senior Judge:

T1 Mark Haik appeals from the district court's grant of summary judgment in favor of Salt Lake City Corporation (the City). Haik argues that the district court lacked jurisdiction and that the district court erroneously concluded that the records. he requested from the City are protected under the Government Records Access and Management Act (GRAMA), see Utah Code Ann. §§ 63G-2-101 to -901 (LexisNexis 2011) 2 We affirm.

BACKGROUND

T2 In April 2012, Haik filed a records request with the City, asking for copies of documents pertaining to the City's employment of outside counsel in the 1990s. The City and an attorney (Attorney) had a series of agreements (the Attorney Employment Agreements), in which Attorney agreed to provide legal advice to the City regarding the City's water-exchange agreements with various irrigation companies. In his GRAMA request, Haik specifically requested access to

[alll records of advice or assistance given pursuant to the Attorney Employment Agreement[s] made as of September 16, 1992 between [the City] and [Attorney] and as amended as of March 29 and October 26, 1998; September 12, 1994, March 20, 1995, April 3, 1996, February 14, 1997, and June 20, 1997; which employment agreement and amendments are on file in the office of the City Recorder.

Because some records described in Haik's request consisted of Attorney's reviews of the water-exchange agreements (the Opinion Letters), the City refused to disclose those documents. In a letter, the City informed Haik of its decision, stating,

*492 [These] records are not produced pursuant to Utah Code Annotated, Section 68G-2-204(16)(17)(18)(a)(b)(c) and (23) and revised under Section 68G-2-805(16) subject to attorney client privilege (17) 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 and (22) records concerning a governmental entity's strategy about imminent or pending litigation....

The City's citation to the Utah Code, however, was in part erroneous.

[ 3 In response to the City's decision, Haik appealed to the Salt Lake City Records Appeals Board (the Board). Haik argued to the Board that the City's citation to section 68G-2-204 3 was erroneous as it was not in effect at the time of his records request, that the withheld records were not prepared in anticipation of litigation or concerning litigation as required for protection under section 68G-2-305(16) and (17), and that the withheld records were not drafts as required for protection under section 63G-2-805(22). The Board agreed with Haik,. The Board therefore determined that the withheld records were not protected under the cited sections of GRAMA. 4 The Board's decision indicated, "[Alny party to this proceeding may petition for review of the decision with the State Records Committee or District Court pursuant to Salt Lake City Code § 2.64.140(G) and Utah Code Ann. § 63G-2-408. ..." 5

T4 The City subsequently petitioned for judicial review of the Board's decision in the district court. The City moved for summary judgment, arguing that the Board was incorrect because the records Haik requested are protected by attorney-client privilege and as attorney work product under GRAMA. In support of its motion, the City provided affidavits from Attorney and from the City's director of public utilities (Director). Attorney and Director both averred that potential litigation over the water-exchange agreements led the City to retain Attorney, who reviewed the water-exchange agreements to which the City was a party. According to Director, the City received threats of litigation from upset citizens and their attorneys, as well as from companies. The City therefore asked Attorney specific questions about the water-exchange agreements and asked for legal advice and opinions about prospective litigation. Had litigation ensued, the City would have used Attorney's ideas, theories, and opinions in the litigation. The affidavits also provided evidence that Attorney's review of the agreements was not undertaken pursuant to any routine procedure or public requirement and that the City could be adversely affected by producing the Opinion Letters because the water-exchange agreements are still in effect.

5 In his opposition to the City's motion, Haik argued that the district court lacked jurisdiction, that the records at issue were not protected under GRAMA, and that disputed issues of material fact precluded summary judgment. Haik also raised objections to the affidavits, arguing that the affidavits were inadmissible under rules 401, 403, 602, 701, 802, and 1002 of the Utah Rules of Evidence.

T6 The district court granted the City's summary judgment motion. The court first concluded that it had jurisdiction under GRAMA to review the Board's decision and *493 overruled all of Haik's objections to the affidavits. The court then reasoned that the City's letter met the statutory requirements and adequately put Haik on notice of the grounds for the denial of his GRAMA request, notwithstanding the City's inaccurate citation to the Utah Code. The district court conducted an in camera review of the withheld records and determined that the records are protected under GRAMA because the records "are attorney work product and contain mental impressions, legal theories, and advice concerning anticipated litigation." (Citing Utah Code Ann. § 68G-2-805(17) (LexisNexis 2011).) Alternatively, the district court determined that the withheld ree-ords would be protected under the revised 2012 version of GRAMA, which exempts from disclosure "records that are subject to the attorney client privilege." See Utah Code Ann. § 63G-2-305(16) (LexisNexis Supp.2012). Accordingly, the district court ruled that the City was not required under GRAMA to produce the requested records. Haik appeals.

ISSUES AND STANDARDS OF REVIEW

17 On appeal, Haik first argues that the district court did not have jurisdiction to consider the City's appeal from the Board's decision. "Whether the district court has Jurisdiction is a question of law that we review for correctness, giving no deference to the lower court." Salt Lake City v. Weiner, 2009 UT App 249, ¶ 5, 219 P.3d 72 (citation and internal quotation marks omitted). -

18 Next, Haik challenges the district court's grant of summary judgment, arguing that the court erroneously interpreted and applied GRAMA.

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Bluebook (online)
2014 UT App 193, 334 P.3d 490, 767 Utah Adv. Rep. 9, 2014 WL 3953476, 2014 Utah App. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salt-lake-city-corporation-v-haik-utahctapp-2014.