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17-164 Davidson-Petition For Judicial Review FINAL 11-21-17 With Exh.
17-164 Davidson-Petition For Judicial Review FINAL 11-21-17 With Exh.
REYES (7969)
Attorney General
BRIDGET K. ROMANO (6979)
Chief Civil Deputy
TYLER R. GREEN (10660)
Utah Solicitor General
LONNY J. PEHRSON (09773)
Assistant Attorney General
160 East 300 South, Sixth Floor
P.O. Box 140856
Salt Lake City, Utah 84114-0856
Telephone: (801) 366-0100
Facsimile: (801) 366-0101
E-mail: lpehrson@agutah.gov
Petitioner,
v. Case No.:
Respondents.
INTRODUCTION
On October 23, 2017, the Utah State Records Committee ordered the Office of the Utah
Attorney General to produce (in response to a GRAMA request) a draft legal opinion that a small
team of OAG attorneys prepared while the threat of litigation abounded. Only a handful of
employees within OAG have seen that record; those employees have been screened from the rest
of the Offices employees and forbidden to disclose the records contents. No one outside the
OAG (except the Records Committee) has seen that recordnot even the Utah Legislature, the
The Records Committees order requiring OAG to disclose the record was signed by
Holly Richardson, the Committees chairperson pro tem. Ms. Richardson was appointed to the
Records Committee as a member of the public. But by the time she issued the Committees
order, she was an employee of the Salt Lake Tribune. She ruled in favor of Lee Davidson
another Salt Lake Tribune employee who filed the GRAMA request on the Tribunes behalf.
In accordance with Utah Code 63G-2-403(14) and 63G-2-404, the Utah Office of the
Attorney General now respectfully petitions the Court to review de novo the Decision and Order
of the Utah State Records Committee dated October 23, 2017, in Case No. 2017-34.
FACTS
1. The Office of the Attorney General of the State of Utah (OAG) is the petitioner in
this action, and is also the governmental entity that issued the initial determination on the subject
records request. The mailing address of the Office is Utah State Capitol Complex, 350 North
2
2. Respondent Lee Davidson (Davidson) is a reporter for the Salt Lake Tribune,
which publishes a newspaper in the State of Utah at the address of 90 South 400 West, Suite 700,
this action as provided in Utah Code 63G-2-404(1)(b). The Committees address is 346 South
4. This Court has jurisdiction over this action based on Utah Code 63G-2-403(14)
and 63G-2-404.
5. Venue is proper in this Court under Utah Code 78B-3-307(1)(a) because the
6. This petition requests non-monetary relief and therefore qualifies for standard
discovery as described for Tier 2 in Rule 26 (c)(3) of the Utah Rules of Civil Procedure.
Governor and Lt. Governor. See Utah Const. art. VII, 16; Utah Code 67-5-17.
8. On May 18, 2017, former U.S. Representative Jason Chaffetz sent a letter to
Governor Gary Herbert stating his intention to resign from the United States Congress effective
9. After Governor Herbert received Chaffetzs letter, he and Lt. Governor Cox sought
legal advice from the OAG regarding the special-election process for filling the vacancy created
3
by Chaffetzs resignation.
10. The OAG acted as the Governors and Lt. Governors legal counsel as required by
the Utah Constitution and the Utah Code. It gave them privileged legal advice regarding the
special-election process.
11. In connection with providing such legal advice, the OAG assumed certain ethical
obligations toward the Governor and Lt. Governor under the Utah State Bars Rules of Professional
Conduct.
12. Those ethical obligations included a duty to avoid conflicts of interest under Utah
Issuing a Writ of Election, and Lt. Governor Cox issued an order setting forth the special-election
14. On May 23, 3017, the Utah Legislature requested a legal opinion from the OAG in
accordance with Utah Code 67-5-1(7). The Legislatures request asked the OAG to answer five
questions (with multiple subparts) related to the special-election process. Those five questions
focused on the authority of the Governor and Lt. Governorto whom the OAG had provided legal
advice and shared privileged attorney-client communicationsto conduct a special election. The
Legislature asked OAG to provide the requested opinion no later than May 30, 2017. Exhibit A,
4
15. Contemplating whether to answer the opinion request, but recognizing the
exceedingly short deadline for the requested response, OAG organized a separate team of
attorneysnone of whom had provided legal advice to the Governor or Lt. Governor regarding
the special electionto begin drafting a response. This team of attorneys was screened from the
attorneys who had advised the Governor and Lt. Governor on special-election issues.
16. Before the draft opinion was completed, concerns were raised about whether the
OAG could provide a legal opinion to the Legislature on the same or similar subject matterthe
special-election processon which it had already advised the Governor and Lt. Governor, without
17. The Governor and Lt. Governor expressed their position that the Legislatures
request for an opinion created a non-waivable conflict of interest under the Rules of Professional
Conduct and an adverse risk of harm to the Governor and Lt. Governor that could not be effectively
cured by screening the two teams of attorneys from one another. And completing, revising, or
releasing the draft opinion to the Legislature could result in OAGs potential recusal from any
18. To avoid even the appearance that OAG was not respecting its ethical obligations,
OAG consulted the Utah State Bars Office of Professional Conduct (OPC) regarding the matter.
OPCs initial, informal feedback to OAG suggested that whether OAG could provide an opinion
to the Legislature on the special-election process without violating its ethical duties to the
5
Governor or Lt. Governor was a question whose answer could go either way.
19. On May 30, 2017, Chief Criminal Deputy Spencer Austin sent a letter to the
Legislature explaining that ethics concerns prevented the OAG from providing the requested legal
20. To this day, OAG still has not provided to the Legislature whatever draft opinion
21. To this day, no one in OAG other than the separate team of attorneys described in
paragraph 15 and Government Records Counsel Lonny Pehrson has seen a copy of whatever draft
22. To this day, no one outside of OAG (other than the Committee) has seen a copy of
whatever draft opinion those attorneys prepared in response to the Legislatures request.
23. On June 1, 2017, the Office of Legislative Research and General Counsel (OLRGC)
hand delivered a letter to OAG. The letter was signed by John L. Fellows, General Counsel for
the Utah Legislature. The letter purported to formally impose[] a litigation hold on OAG with
respect to the draft opinion. It stated OLRGCs understanding that the opinion has been
completed and signed but not delivered to the Legislature because of issues raised by the
governor. The letter states OLRGCs position that [r]esolution of these legal issues may require
litigation, and asked OAG to preserve and safeguard all information relating to [OAGs] work
6
24. On June 21, 2017, Respondent Davidson submitted to the OAG via email a request
under the Government Records Access and Management Act (GRAMA) for a copy of the draft
legal opinion prepared in response to the Legislatures letter of May 23, 2017. Exhibit D,
25. On June 28, 2017, Government Records Counsel Lonny Pehrson denied
Davidsons request because the record was classified as protected under Utah Code 63G-2-
305(18) (records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee,
26. On June 30, 2017, Davidson appealed the denial of his GRAMA request to the
27. On July 17, 2017, Solicitor General Tyler Green, acting as Chief Administrative
Officer for the OAG under Utah Code 63G-2-401(9), affirmed the classification of the legal
opinion as protected under both Utah Code 63G-2-305(18) and Utah Code 63G-2-305(22). He
also determined that there was no basis to reclassify the record under Utah Code 63G-2-310(1)
due to changed circumstances. Solicitor General Green further determined, under his weighing
authority in Utah Code 63-2-401(6), that disclosure of the record despite its protected classification
was not warranted because the interests favoring access were not equal to or greater than the interests
favoring restriction of access. He, therefore, denied Petitioners appeal. Exhibit G, CAO Appeal
7
Decision 7/17/17.
28. On August 4, 2017, Respondent Davidson appealed Greens decision to the State
29. The Committee held a hearing on the appeal on October 12, 2017, at which it heard
argument from the parties and reviewed the disputed record in camera.
30. On October 23, 2017, the Committee issued its Decision and Order. The Order
was signed by Holly Richardson, the Committees Chairperson Pro Tem. Exhibit I, Decision and
32. By the time Ms. Richardson signed the order, she had also become a columnist
33. The Order concluded that the record was improperly classified as protected attorney
work-product under Utah Code 63G-2-305(18) because it was not prepared in anticipation of
litigation. But the Committee found that the record was properly classified as a protected draft
under Utah Code 63G-2-305(22). Exhibit H, Decision and Order of State Records Committee
34. Nevertheless, exercising its weighing authority under Utah Code 63G-2-
403(11)(b), and with virtually no deliberation or debate, the Committee determined that the public
interest favoring access to the record was greater than or equal to the interest favoring restriction
8
of access, and ordered release of the record despite its protected classification. Absent from the
minimal public deliberations was any consideration of the risk to the Governor, Lt. Governor, or
State of Utah should any of them be sued after the draft opinions release and thereafter be required
35. The OAG hereby seeks de novo judicial review of the Committees order that the
draft opinion was improperly classified as attorney work product under Utah Code 63G-2-
305(18) and that disclosure of the record despite its protected classification is warranted because
the interests favoring access were equal to or greater than the interests favoring restriction of
access.
36. The OAG properly classified the draft opinion as protected attorney work product
under Utah Code 63G-2-305(18) because it was prepared for or by an attorney . . . for, or in
37. The OAG properly classified the draft opinion as a protected draft under Utah Code
63G-2-305(22) because it was never delivered to the Legislature, and it never circulated outside
of a small group of OAG attorneys. See Utah Code 63G-2-301(3)(j). Nor was the opinion
relied upon by any governmental entity in carrying out action or policy. See Utah Code 63G-
2-301(3)(k).
38. The interest in preserving the OAGs constitutionally and statutorily mandated
ability to provide unfettered legal advice to State officers, including the Governor and Lt.
9
Governor, in compliance with the Rules of Professional Conduct outweighs the public interest in
39. Because judicial review in this case is de novo, this Court owes no deference to the
40. The Committees decision is improper because its author is an employee of the Salt
Lake Tribune who resolved the dispute in favor of her co-employee at the Salt Lake Tribune and
their mutual employer. The decisionmakers financial relationship with the Respondent in whose
favor she ruled imbues the decision with the appearance of bias.
WHEREFORE, the Attorney Generals Office prays that the Court review the disputed
1. Determining that the draft opinion was properly classified by the OAG as
2. Determining that the draft opinion was properly classified by the OAG as a
3. Determining that the interest favoring restriction of access to the draft opinion is
10
6. Awarding such other and further relief to Petitioner as the Court may deem just
and equitable.
SEAN D. REYES
ATTORNEY GENERAL
_____________________________
BRIDGET K. ROMANO
Chief Civil Deputy
TYLER R. GREEN
Utah Solicitor General
LONNY J. PEHRSON
Assistant Attorney General
Counsel for Petitioner
11
EXHIBIT A
Utah State Legislature
Senate Utah State Capitol Complex 320 State Capitol
PO BOX 145115 Salt Lake City, Utah 84114-5115
(801) 538-1035 fax (801) 538-1414
If not, what additional authority does the Governor have, what is the
source of that authority, and how does it differ from the Legislature's authority to
prescribe the "Times, Places and Manner of holding Elections for . . , Representatives"?
3. Who has the authority to establish the process relating to the election of an
individual to fill a midterm vacancy in the office of Representative in the United States
House of Representatives? Is it the Legislature, the Governor, or the Lieutenant
Governor?
If so, what is the source and scope of that authority for the Governor or
Lieutenant Governor?
4. Under Title 20A, Elections, of the Utah Code, the Legislature has established a
process for electing an individual to the office of Representative in the United States.
House of Representatives. That process includes time frames for and sequencing of
events; a process for parties to nominate candidates; and a primary election.
Does either'the Governor or Lieutenant Governor have the authority to establish
their own process for electing an individual to fill a midterm vacancy in the office of
Representative in the United States
House of Representatives, regard
that process is similar to the proces less of whether
s established by the Legislature?
If so, what is the source and sco
pe of either the Governor or Lieutenan
Governor's authority? t
Respectfull
Grego
Speaker of the House Wayne L. Niederhauser
Senate President
EXHIBIT B
SrerE oF UreH
OFFICE OF THE A CENERAL
SEAN D. REYES
ATTORNE Y GENERAL
SPENCEF E. AusrN PAnkEB DouGLrs TYLEF R, GREEN BtuDGFr K. RoMANo
Chi6t CnminalOepuly Solioilor Genral Chil ol Slafi Chiel CivilDpuly
May 30,2017
This letter acknowledges receipt of your letter dated May 27,2017, which was hand
delivered to the Attomey General's office at the utah state capitol on the aftemoon of May 30,
2017.
Your May 27 letter re-states your May 23, 2017, request for the Attomey General,s
opinion on legal questions about the authority of the Govemor, the Lieutenant Govemor, and the
Legislature following Representative Jason Chaffetz's announcement that he intends to resign as
a member of the U.S. House of Representatives effective June 30,2017. You made both requests
in accordance with utah code g 67-5-1(7). And you requested an opinion no later than May 30,
2017.
As we have discussed, questions arose last week about whether the Attomey General's
Office could respond to your request and still comply with its ethical duties under the Utah Rules
of Professional Conduct. Among others, those questions implicate the Attomey General's
Office's duties under Rules 1.7 and l.l0 to avoid con{licts of interest-here with the Govemor
and Lieutenant Governor, who are our clients by virtue of the Utah Constitution and the Utah
Code.
To avoid even the suggestion that we did not take seriously the obligations those rules
impose, we have sought advice from the Bar's Office ofProfessionai Conduct. OPC's initial,
informal feedback suggests that this Office's providing an opinion to the Legislature could bring
the Office uncomfortably close to an ethical line-even as close as a "50/50 chance" that our
providing an opinion would constitute an ethical violation.
UrAH SrarE CAprroL.350 NoRrH SrArE SrFEEr, SutrE 230. P.O. Box 142320. S^Lr L^KE Crry, UIAH 84114-2020
TELpIioNE: (801) 538-9600 . Fax: (801) 538-1121
President Niederhauser & Speaker Hughes
p.2
As I'm sure you appreciate, the Offrce cannot tolerate those odds. The citizens of Utah-
and you as their representatives--deserve better than an Attomey General's Office willing to
commit an ethical violation on a coin flip's chance.
I acknowledge the statement in your May 27 letter that your legal counsel have sent a
letter to the Utah State Bar about these ethical questions. Although your letter to us said you
attached a copy of your letter to the Bar, no such copy was in fact attached. I would appreciate it
ifyou would send me a copy of your letter to the Bar at your earliest convenience.
To be sure, we respect the need for a timely response to your request on these important
questions. But it's precisely because the stakes are so high for so many Utahns that we must
continue to analyze these important ethical questions, and to seek flrther guidance from the Bar,
before we are able to respond to your request. We thus will not be able to provide your requested
opinion before May 30.
We do anticipate being able to reach a decision on these ethical questions by the end of
this week. I will keep you apprised ofour progress and decision as that date approaches.
Very_truly yours,
Spencer E. AuS
Chief Criminal Deputy
Office of the Utah Attomey General
Cc:
John Fellows, General Counsel, Offrce of Legislative Research and General Counsel
fuc Cantrell. Chief of Staff. Utah State Senate
Greg Hartley, ChiefofState, Utah House of Representatives
EXHIBIT C
EXHIBIT D
6/21/2017 StateofUtahMailGRAMArequestfromSaltLakeTribune
GRAMA_CoordinatorAT<grama_coordinator@utah.gov>
GRAMArequestfromSaltLakeTribune
1message
LeeDavidson<ldavidson@sltrib.com> Wed,Jun21,2017at4:13PM
To:grama_coordinator@utah.gov
DearGRAMAofficers,
AttachedisaGRAMArequestIamfilingonbehalfofTheSaltLakeTribune.Couldyoupleaseletmeknowthatyou
havereceivedit,andareabletoopenandreadthefile?Thanks,
LeeDavidson
SaltLakeTribune
Work:8012578752
Cell:8014559372
ldavidson@sltrib.com
grama.doc
36K
https://mail.google.com/mail/b/AHRY9vtLz6z1pf0BYqqeJklVXp8q06n9oVtghY_o3RR2xWrxxggL/u/0/?ui=2&ik=ccd6f31680&view=pt&search=inbox&th=15cccb7 1/1
The Salt Lake Tribune
90 S. 400 West, Suite 700, Salt Lake City, UT 84101-1431 1-888-257-
8742
GRAMA coordinator
Utah Attorney Generals Office
VIA EMAIL
I make the following request pursuant to the Utah Government Records Access and Management
Act, Utah Code Annotated 63-2-203. I seek access to and copies of the following:
A copy of the legal option requested by legislative leaders about the special election
process imposed by Gov. Gary Herbert to fill the congressional seat to be vacated by
Rep. Jason Chaffetz. House Speaker Greg Hughes says he was told that opinion was
completed and signed, but not given to legislative leaders.
I am willing to pay up to $25 for copies. If it costs more than that, please advise me for a
decision. However, I do request a waiver of any potential copying or production costs in your
review process, as is encouraged by the GRAMA law, because release of this information is in
the public interest by looking at operations of a governmental office, and is being gathered for
public dissemination by The Salt Lake Tribune. I am a reporter for that newspaper. For the same
reason, I also request expedited response, or release within five days as established by law.
If my request is denied in whole or part, I ask you to justify all deletions by reference to specific
exemptions of the act. I also expect release of all segregable portions of otherwise exempt
material. I reserve the right to appeal decisions to withhold information or to deny a fee waiver.
Please call me with any questions or to clarify my request. My contact information is: work, 801-
257-8752; cell, 801-455-9372; and email, ldavidson@sltrib.com.
I look forward to your reply within the five days that GRAMA requires for expedited reviews.
Sincerely,
Lee Davidson
Salt Lake Tribune
EXHIBIT E
S T A T E OF U TA H
O F F IC E O F T H E A T T O R N E Y GE N E R A L
SEAN D. REYES
ATTORNEY GENERAL
________________________________________________________________________________________________________
Spencer E. Austin Parker Douglas Tyler R. Green Missy W. Larsen Bridget K. Romano
Chief Criminal Deputy Chief Federal Deputy Solicitor General Chief of Staff Chief Civil Deputy
& General Counsel
Lee Davidson
The Salt Lake Tribune
90 South 400 West, Suite 700
Salt Lake City, UT 84101
Email: ldavidson@sltrib.com
On June 21, 2017, the Utah Attorney Generals Office received via email your request under the Utah
Government Records Access and Management Act (GRAMA) for the following records:
A copy of the legal option requested by legislative leaders about the special election
process imposed by Gov. Gary Herbert to fill the congressional seat to be vacated by Rep.
Jason Chaffetz..
The Office respectfully denies your request because the record has been classified as protected pursuant
to the following provisions of GRAMA:
Because the record was prepared in anticipation of litigation or a judicial, quasi-judicial, or administrative
proceeding, it is protected attorney work-product. It also qualifies as a draft because it was never provided
__________________________________________________________________________________________
160 EAST300 SOUTH, 5TH FLOOR P.O. BOX 140860, SALT LAKE CITY, UT 84114-0860 PHONE: (801) 366-0209
to the Legislature. Although Utah Code 63G-2-301(3)(j) provides that drafts under certain
circumstances are normally public, none of those circumstances apply here.
Sincerely,
Lonny J. Pehrson
Assistant Attorney General
Government Records Counsel
Appeal Process
You may appeal this determination to the chief administrative officer of the Attorney Generals Office, as
provided in Utah Code 63G-2-401(1)(a). To do so, you must submit a Notice of Appeal within 30 days
to Attorney General Sean D. Reyes at the following address:
(If by mail)
GRAMA Appeal
Office of the Attorney General
PO Box 140860
Salt Lake City, UT 84114-0860
(If by email)
GRAMA Coordinator
grama_coordinator@utah.gov
Your Notice of Appeal must contain your name, mailing address, daytime telephone number and a
statement of the relief you seek. You may also file a short statement of facts, reasons and legal authority
in support of your appeal. Please note that under Utah Code 63G-2-401(9) a chief administrative officer
may delegate responsibility for handling such appeals.
EXHIBIT F
The Salt Lake Tribune
90 S. 400 West, Suite 700, Salt Lake City, UT 84101-1431 1-888-257-
8742
GRAMA Appeal
Office of the Attorney General
P.O. Box 140860
Salt Lake City, UT 84118-0860
BY EMAIL
A copy of the legal opinion requested by legislative leaders about the special election process
imposed by Gov. Gary Herbert to fill the congressional seat to be vacated by Rep. Jason Chaffetz.
The agency denied my request, saying it was classified as protected based on two
provisions of GRAMA:
Sincerely,
Lee Davidson
Salt Lake Tribune
EXHIBIT G
EXHIBIT H
The Salt Lake Tribune
90 S. 400 West, Suite 700, Salt Lake City, UT 84101-1431 1-888-257-
8742
Aug. 4, 2017
GRAMA Appeal
Office of the Attorney General
P.O. Box 140860
Salt Lake City, UT 84118-0860
BY EMAIL
A copy of the legal opinion requested by legislative leaders about the special election process
imposed by Gov. Gary Herbert to fill the congressional seat to be vacated by Rep. Jason Chaffetz.
The agency denied my request, saying it was classified as protected based on two
provisions of GRAMA:
Sincerely,
Lee Davidson
Salt Lake Tribune
EXHIBIT I
State Records Committee
Appeal Decision 2017-34
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
By this appeal, Petitioner, Lee Davidson a reporter for the Salt Lake Tribune, seeks access to
records held by Respondent, Utah Attorney Generals O ce (AGs O ce).
FACTS
In a letter dated June 21, 2017, Mr. Davidson made a records request of the AGs O ce, pursuant to
the Government Records Access and Management Act (GRAMA). Mr. Davidson requested a
copy of the legal opinion requested by legislative leaders about the special election process to
ll the congressional seat held by Representative Jason Cha etz. Mr. Davidson stated that Utah
House Speaker Greg Hughes says he was told that opinion was completed and signed, but not
given to legislative leaders. In a letter dated June 28, 2017, Lonny J. Pehrson, Government
Records Counsel for the AGs O ce denied Mr. Davidsons records request. Mr. Pehrson stated
that the legal opinion letter (opinion letter) had been classi ed by the AGs O ce as protected
pursuant to Utah Code 63G-2-305(18) & -305(22).
Mr. Davidson led an appeal with the AGs O ces Chief Administrative O cer, arguing that the
opinion letter had been requested to help clarify duties for special elections of the executive and
legislative branches, not for a lawsuit. Mr. Davidson also argued that the opinion letter was not a
draft because it was completed, reviewed, and signed. In a letter dated July 17, 2017, Tyler R.
Green, Solicitor General for the AGs O ce, denied the appeal, a rming the determination that the
opinion letter was properly classi ed as protected pursuant to Utah Code 63G-2-305(18) &
-305(22).
Petitioner has led an appeal with the State Records Committee (Committee). After hearing oral
argument and testimony from all the parties, reviewing the opinion letter in camera, and carefully
considering the requested relief of the parties, the Committee issues the following Decision and
Order.
1. The Government Records Access and Management Act (GRAMA) speci es that all records are
public unless otherwise expressly provided by statute. Utah Code 63G-2-201(2). Records that
are not public are designated as either private, protected, or controlled. See, Utah Code
63G-2-302, -303, -304 and -305.
3. Drafts unless they are otherwise classi ed as public, are protected records pursuant to Utah
Code 63G-2-305(22). Drafts that have never been circulated to anyone other than a
governmental entity, political subdivision, a federal agency, a government-managed corporation,
or a contractor/private provider, are normally public. Utah Code 63G-2-301(3)(j). Additionally,
drafts that have never been nalized but were relied upon by a governmental entity carrying out
action or policy, are also normally public. Utah Code 63G-2-301(3)(k).
4. The opinion letter was written in response to a May 23, 2017, request made by the Utah
Legislature. The request letter, signed by Utah Representative Gregory Hughes, Speaker of the
House, and Senator Wayne L. Niederhauser, Senate President, was made pursuant to Utah Code
67-5-1(7), which states that the duties of the Utah Attorney General include giving an attorney
generals opinion in writingto the Legislaturewhen required, upon any question of law relating
to their respective o ces. The letter asked speci c questions related to the process required by
law to ll the potential vacancy occurring with the resignation of Rep. Cha etz from the United
States Congress. Questions in the request letter included: (1) When does a vacancy occur; (2)
What is the scope of the Governor of Utah under the United States Constitution for issuing a writ
of election; (3) Who has the authority to establish the election process for a vacancy; and (4) Does
either the Governor or Lieutenant Governor have the authority to establish their own process for
electing an individual to ll a midterm vacancy.
5. Petitioner argued that the opinion letter should not be considered attorney work product
pursuant to Utah Code 63G-2-305(18) because it was not prepared in anticipation of litigation.
Petitioner claimed that the AGs O ce failed in its burden to establish that the opinion letter was
prepared primarily for use in pending or imminent litigation.
7. After hearing the arguments of the parties, the Committee is not convinced that, at the time the
opinion letter was prepared, the opinion letter was prepared for, or in anticipation of, litigation or
a judicial, quasi-judicial, or administrative proceeding as is required by Utah Code 63G-2-
305(18). The evidence instead shows that the letter was drafted pursuant to a request by the
Legislature through the statutory provisions of Utah Code 67-5-1(7). Accordingly, the Committee
nds that the opinion letter was incorrectly classi ed as protected by the AGs o ce pursuant to
Utah Code 63G-2-305(18).
8. The AGs O ce also argued that the opinion letter could be protected as a draft pursuant to
Utah Code 63G-2-305(22). The AGs O ce stated that the opinion letter was a preliminary
version of a document because it was never nalized for delivery and was kept in word
processing format for further editing or revision. A paralegal was instructed to add each of the
authors electronic signatures to the document on May 26, 2017, but revisions continued after that
date and a copy was printed on May 30, 2017. According to Mr. Pehrson: No o cial hardcopy of
the document was ever created and it was last edited and saved on June 1, 2017. Additionally, the
AGs O ce never provided a copy of the opinion letter to the Legislature due to ethics concerns.
9. Based upon the facts as presented by the AGs O ce, the Committee is convinced that the
opinion letter was a draft that was never circulated outside of the AGs o ce or relied upon by a
governmental entity in carrying out action or policy. Accordingly, the Committee nds that the
AGs O ce appropriately classi ed the opinion letter as protected pursuant to Utah Code 63G-2-
305(22).
10. Except as provided in Utah Code 63G-2-406, the Committee may upon consideration and
weighing the various interests and public policies pertinent to the classi cation and disclosure or
nondisclosure, order the disclosure of information properly classi ed as private, controlled, or
protected if the public interest favoring access is greater than or equal to the interest favoring
restriction of access. Utah Code 63G-2-403(11)(b).
11. When considering the public interest in the opinion of the Utah Attorney Generals O ce
concerning the process of the election to ll the vacancy of a U.S. Congressman, and after having
reviewed the opinion letter in camera, the Committee unanimously nds that the public interest
favoring access is greater than the interest favoring restriction of access. Accordingly, the
Committee nds that the opinion letter should be released to the public.
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Lee Davidson, on behalf of the Salt
Lake Tribune, is GRANTED.
RIGHT TO APPEAL
A party to a proceeding before the Committee may seek judicial review in District Court of a
Committee's Order by ling 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 led 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 led, 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 le 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).