Schroeder v. Utah Attorney Gen.'s Office

Decision Date25 August 2015
Docket NumberNo. 20121057.,20121057.
Citation358 P.3d 1075,2015 UT 77
PartiesDaniel V. SCHROEDER, Petitioner, Appellant, v. UTAH ATTORNEY GENERAL'S OFFICE and the Utah State Records Committee, Respondent, Appellee.
CourtUtah Supreme Court

Jeffrey J. Hunt, David C. Reymann, Lashel Shaw, Salt Lake City, for appellant.

Sean Reyes, Att'y Gen., Nancy L. Kemp, Asst. Att'y Gen., Salt Lake City, for appellee Utah Attorney General's Office.

Sean Reyes, Att'y Gen., Paul H. Tonks, Asst. Att'y Gen., Salt Lake City, for appellee Utah State Records Committee.

Chief Justice DURRANT authored the opinion of the Court, in which Associate Chief Justice LEE, Justice DURHAM, Justice PARRISH,* and Justice HIMONAS joined.

Chief Justice DURRANT, opinion of the Court:

Introduction

¶ 1 Article I, section 14 of the Utah Constitution prohibits state actors from conducting unreasonable searches and seizures. Typically, the state may seize evidence without violating section 14 if it does so under a valid warrant or subpoena. In this case, Daniel Schroeder filed a public records request under the Government Records Access and Management Act (GRAMA), seeking bank records the State had seized lawfully during a criminal investigation. The district court below denied the request, holding that section 14 provides a broad right of privacy that prevents the State from disclosing bank records even though the records themselves were seized legally. We must now determine whether the right against unreasonable searches and seizures prevents Mr. Schroeder from accessing information the State seized during its investigation. We conclude that it does not. There can be no violation of section 14 when the government obtains information through a valid warrant or subpoena, so the state constitution does not exempt the bank records from GRAMA's public disclosure requirements.

¶ 2 In so holding, we note that nothing in our decision requires state prosecutors to implement an open-file policy with journalists and curious citizens. GRAMA provides sixty-four separate categories of protected information that no one can access without a compelling justification. While these protections shield much sensitive material from public disclosure, to the extent GRAMA's disclosure requirements are too permissive, that is a problem with a legislative solution, not a matter of state constitutional law.

¶ 3 The district court also denied Mr. Schroeder access to a summary of the bank records (the Quicken Summary) and an investigator's handwritten notes (the Post-it Note), holding that both documents were protected attorney work product. Under GRAMA, the state has no obligation to disclose attorney work product, but a district court may nevertheless order disclosure if the interests favoring disclosure outweigh those favoring protection. Work product includes records prepared solely in anticipation of litigation and any material that discloses the mental impressions or legal theories of an attorney concerning the litigation. We conclude that the district court correctly classified the Quicken Summary and Post-it Note as attorney work product because both documents contain the mental impressions of state prosecutors. But we ultimately reverse the district court's ruling because the State terminated its investigation years ago, so the interests favoring protection are not as compelling as those favoring disclosure.

¶ 4 Mr. Schroeder also seeks his attorney fees incurred on appeal under Utah Code section 63G–2–802(2)(a), which allows district courts to award attorney fees and litigation costs to any litigant who “substantially prevails” on a public records request. We do not reach this issue, because GRAMA provides district courts discretion to award attorney fees after considering a number of factors, including “the public benefit derived from the case and whether the government's actions “had a reasonable basis.” Because the district court has wide discretion in awarding fees and is in a better position than we are to make such a determination, we leave it to the district court to decide this issue on remand.

Background

¶ 5 Mr. Schroeder filed a complaint against the Utah Attorney General's Office in September 2011, asking the court “to compel the [AG's o]ffice to release certain government records” it had refused to disclose six months earlier. According to the complaint, the records concerned “Envision Ogden,” a nonprofit organization Ogden Mayor Matthew Godfrey had formed in early 2007. The organization's purpose was “to promote business and recreation in Ogden.” The mayor held a series of fundraising events over the next several months, collecting more than $80,000 in contributions. Donors included local businesses, the Ogden–Weber Chamber of Commerce, and the Utah Governor's Office of Economic Development.

¶ 6 But Envision Ogden did not use all of those funds to promote the city as a destination for tourists and entrepreneurs. Rather, according to Mr. Schroeder, during “the second half of 2007,” the organization “made expenditures of at least $26,884 in support of local political campaigns, including independent expenditures in support of Mayor Godfrey's reelection campaign and contributions to” two city council candidates. The organization funneled roughly $20,000 in campaign contributions “through an unregistered entity called Friends of Northern Utah Real Estate” (FNURE). The city council candidates disclosed the FNURE contributions, but their disclosures did not indicate the money's actual source was Envision Ogden.

¶ 7 Envision Ogden filed a “Political Organization Notice of Section 527 Status” with the Internal Revenue Service in March 2008. According to Mr. Schroeder, he discovered the organization's filings on the IRS website one year later, “learning for the first time who Envision Ogden's major contributors were and that FNURE had received its funds from Envision Ogden.” The city council candidates eventually admitted that their FNURE campaign donations were contributions from Envision Ogden.

¶ 8 The IRS disclosures generated some local press coverage, and the Utah State Bureau of Investigation (SBI) began looking into the matter in April 2009. SBI closed its investigation in June 2009, but the AG's Office directed SBI to reopen it three months later. The “investigation stagnated for the next 12 months,” until the AG's Office “brought the investigation from the SBI into its own office and assigned” it to Lieutenant Tina Minchey. After taking over, she subpoenaed Envision Ogden's bank records sometime “in late 2010.”

¶ 9 In March 2011, the AG's Office announced that the State had closed the Envision Ogden investigation. Mr. Schroeder filed a request under GRAMA the next day, seeking copies of [a]ll records pertaining to the recently concluded investigation into Envision Ogden.” The AG's Office released some of the records but retained others, claiming they were “protected” documents under GRAMA. It denied Mr. Schroeder's subsequent appeal, so he sought review from the Utah State Records Committee under Utah Code section 63G–2–403 (2011).1 The Committee ordered the AG's Office to release additional documents, but not all of what Mr. Schroeder had requested. Both parties then petitioned the district court for judicial review of the Committee's decision.

¶ 10 Three records were at issue before the district court: (1) Envision Ogden's bank records, which the State had obtained through a valid subpoena, (2) a summary of the bank records prepared by an investigator in the AG's Office (the Quicken Summary), and (3) a post-it note upon which the investigator claimed to have written directions from state prosecutors (the Post-it Note).2 The district court concluded that GRAMA did not require the AG's Office to disclose any of these records.

¶ 11 With respect to the bank records, the court cited State v. Thompson3 for the proposition that “bank customers have a right of privacy in their bank records under the Utah State Constitution, Article I, § 14.” It then concluded that even though the records “were properly obtained by the Attorney General's Office pursuant to a lawful criminal investigation,” there “would be a constitutional violation for the Attorney General's Office to disclose those bank records to the plaintiff in this case.” The court reached the same conclusion regarding the Quicken Summary.

¶ 12 The court also determined that Utah Code section 63G–2–305 shielded the Post-it Note from disclosure and that it provided another basis to protect the Quicken Summary. Subsections 16 and 17 protect “records prepared by or on behalf of a governmental entity solely in anticipation of litigation” and “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.”4 Because both documents, in the court's view, were prepared in “determining what criminal charges might be pursued,” and because the court believed they also “contain[ed] mental impressions by the Attorney General's Office,” the court concluded that the documents were attorney work product and therefore non-public.

¶ 13 Information that falls within a GRAMA-protected category may nevertheless be released if a court determines that “the interest favoring access outweighs the interest favoring restriction of access.”5 On this issue, the district court concluded that the relevant policy interests weighed against releasing the records. With respect to the Post-it Note and the Quicken Summary, the court first observed that “the public's right to know” favored disclosure. In particular, it noted that “our [g]overnment and our way of life is helped by people ... like Mr. Schroeder, who wants to hold [g]overnment accountable for its actions, and who is willing to make a personal effort to hold [g]overnment accountable.” The court also noted that the government “authorities involved here principally are the Attorney General's Office who's carried...

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