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SEAN D.

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

Attorneys for The Office of the Utah Attorney General

IN THE THIRD JUDICIAL DISTRICT COURT

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

OFFICE OF THE UTAH ATTORNEY


GENERAL, Petition for Judicial Review

Petitioner,

v. Case No.:

LEE DAVIDSON on behalf of THE SALT Judge:


LAKE TRIBUNE; UTAH STATE
RECORDS COMMITTEE, Discovery Tier 2

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

entity at whose request OAG prepared it.

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

Petitioner alleges the following in support of its petition:

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

State Street, Suite 230, Salt Lake City, UT 84114-2320.

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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,

Salt Lake City, Utah 84101.

3. Respondent Utah State Records Committee (Committee) is a necessary party to

this action as provided in Utah Code 63G-2-404(1)(b). The Committees address is 346 South

Rio Grande Street, Salt Lake City, Utah 84101-1106.

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

cause of action arose in Salt Lake County, Utah.

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.

7. OAG is constitutionally and statutorily required to provide legal advice to Utahs

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

June 30, 2017.

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

Rules of Professional Conduct 1.7 and 1.10.

13. On May 19, 2017, Governor Herbert signed an Executive Order/Proclamation

Issuing a Writ of Election, and Lt. Governor Cox issued an order setting forth the special-election

process to fill the vacancy.

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,

Utah Leg. Request for Opinion dated 5/23/17.

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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

violating its ethical duties to those constitutional clients.

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

litigation about the special election.

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

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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

opinion. Exhibit B, Austin Letter dated 5/30/17.

20. To this day, OAG still has not provided to the Legislature whatever draft opinion

was prepared in response to the Legislatures request.

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

opinion those attorneys prepared in response to the Legislatures request.

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

in connection with the written opinion. Exhibit C, OLRGC Letter 6/1/17.

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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,

Davidson GRAMA Request 6/21/17.

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,

or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial,

or administrative proceeding) and Utah Code 63G-2-305(22) (drafts, unless otherwise

classified as public). Exhibit E, Response to GRAMA Request 6/28/17.

26. On June 30, 2017, Davidson appealed the denial of his GRAMA request to the

OAGs Chief Administrative Officer. Exhibit F, Davidson CAO Appeal 6/30/17.

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

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Decision 7/17/17.

28. On August 4, 2017, Respondent Davidson appealed Greens decision to the State

Records Committee. Exhibit H, Davidson SRC Appeal 8/4/17.

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

Order of State Records Committee 10/23/17, Case No. 2017-34.

31. Ms. Richardson was appointed to the Committee as a public member.

32. By the time Ms. Richardson signed the order, she had also become a columnist

fori.e., an employee ofthe Salt Lake Tribune. See http://www.sltrib.com/author/hrichardson/.

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

10/23/17, Case No. 2017-34.

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

to obtain private outside counsel to represent their separate or collective interests.

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

anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding.

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

disclosure of the draft opinion.

39. Because judicial review in this case is de novo, this Court owes no deference to the

Committees contrary conclusions.

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.

PRAYER FOR RELIEF

WHEREFORE, the Attorney Generals Office prays that the Court review the disputed

record in camera and issue an order as follows:

1. Determining that the draft opinion was properly classified by the OAG as

protected attorney work product under Utah Code 63G-2-305(18).

2. Determining that the draft opinion was properly classified by the OAG as a

protected draft under Utah Code 63G-2-305(22).

3. Determining that the interest favoring restriction of access to the draft opinion is

greater than the public interest favoring access.

4. Reversing the State Records Committees determinations to the contrary.

5. Denying Davidsons request to release to the draft opinion.

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6. Awarding such other and further relief to Petitioner as the Court may deem just

and equitable.

DATED this 21st day of November, 2017.

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

HOOSO Of RUpresentative5 *Utah State Capitol Complex 350 State Capitol


PO BOX 14503 0 Salt Lake City, Utah 84114-5030
(801) 538-1029fax (801) 538-1908
Bp://le.utah.gov

May 23, 2017

Office of the Attorney General


Utah State Capitol Complex
350 North State Street, Suite 230
Salt Lake City, UT 84114-2320

Dear Attorney General Reyes:


Legislature to request your opinion on
We are writing on behalf of both houses of the Utah State
e, the Governor and Lieutenant
questions of law relating to the authority of the Legislatur
a House seat in Congress when a
Governor in the specific context of filling a vacancy for
seat at a future date but remains
Representative has announced his intention to give up his
pursuant to Utah Code 67-5-1(7).
seated until a future date. This request is made
indicated an intent to resign from Congress,
As you know, Representative Jason Chaffetz has
on the questions below relating to the process
effective June 30, 2017, We request your opinion
tative Chaffetz's resignation becomes effective.
to fill the vacancy that could occur if Represen
drop of two provisions of the United States
These questions are asked against the back er
4, and states that"The Times, Places and Mann
Constitution. The first is in Article l, Section e
ing Elect ions for Repr esen tati ves, shall be prescribed in each State by the Legislatur
of hold
l, Section 2, and states that"When vacancies
thereof. . ." The second provision is in Article s
, the Executive Authority thereof shall issue Writ
happen in the Representation from any State
of Election to fill the Vacancies."

With that background, we request your opinion


with respect to the following questions:

Chaffetz's position as a member


1. When does the vacancy occur for Representative
occur at the time he announced.
of the United States House of Representatives? Does it
Utah in Congress?
his intention to resign, or at the time he no longer serves
n of the U.S.
2. What is the scope of the Governor's authority under the provisio
tion to fill a midterm vacancy in the office
Constitution requiring him to issue a writ of elec
of Representative in the United States House of Representatives?
Is the Governor's authority limited to calling an election and stating
the date
of the election?

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?

Does the Legislature's authority to prescribe "Mho Times, Places and


Manner of holding Elections for . . Representatives" include the authority to establish a
process for qualifying candidates for the ballot for an election at which an individual is to
be elected to fill a midterm vacancy in the office of Representative in the United States
House of Representatives?

Does either the Governor or Lieutenant Governor share that authority or


have independent authority to establish that process?

If so, what is the source and scope of that authority for the Governor or
Lieutenant Governor?

Can the process set by'the Legislature, Governor and/or Lieutenant


Governor require candidates to declare their candidacy before the Governor issues a
writ of election?

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

As you can appreciate, there is so


me urgency to receiving answers to
questions. We accordingly reques these
t your opinion on these questions no
26, 2017, later than May

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

Utah State Legislature


C/O Senate President & Speaker ofthe House
Utah State Capitol Complex
Salt Lake City, UT 84114

VIA EMAIL AND HAND.DELIVERY

Re: Request for Attorney General Opinion

Dear President Niederhauser and Speaker Hughes:

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

June 21, 2017

GRAMA coordinator
Utah Attorney Generals Office
VIA EMAIL

Dear GRAMA officer,

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

June 28, 2017

SENT VIA U.S. MAIL AND EMAIL

Lee Davidson
The Salt Lake Tribune
90 South 400 West, Suite 700
Salt Lake City, UT 84101
Email: ldavidson@sltrib.com

Re: GRAMA Request to Utah Attorney Generals Office #17-164

Dear Mr. Davidson,

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:

Utah Code 63G-2-305(18)- 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;

Utah Code 63G-2-305(22)- drafts, unless otherwise classified as public;

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.

Please feel free to contact me if you have any questions.

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 hand delivery)


GRAMA Appeal
Office of the Attorney General
Utah State Capitol Complex
350 North State Street Suite 230
Salt Lake City, UT 84114

(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

June 30, 2017

GRAMA Appeal
Office of the Attorney General
P.O. Box 140860
Salt Lake City, UT 84118-0860
BY EMAIL

Dear Chief Administrative Officer,

This is to appeal a denial by the Attorney Generals Office of my GRAMA Request


#17-164, which I filed on June 21, 2017. The denial was dated June 28 and signed by
Lonny J. Pehrson. My request was for the following:

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:

Utah Code 63G-2-305(18) 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;
Utah Code 63G-2-305(22) drafts, unless otherwise classified as public.

I hereby appeal that denial. Following are my arguments and reasoning.


About the first reason that the opinion was written for, or in anticipation of,
litigation or a judicial, quasi-judicial, or administrative proceeding, I argue that is
not the case at all.
I attach the letter requesting the legal opinion from Senate President Wayne
Niederhauser and House Speaker Greg Hughes. It never mentions nor refers to a
need for the opinion because of likely court proceedings. It asks for clarification of
duties by the executive and legislative branches. The two leaders have said they
wanted the opinion to answer questions about the process as they considered
potential legislative action, or applying pressure to allow such legislation in a special
session or perhaps at the next general session.
The legislative leaders have been quoted in the press saying they do not plan to
file any lawsuits themselves because they do not want to interfere with the money
and efforts spent by candidates so far (I am attaching one such story). They have
said they worried the election might not withstand lawsuits if filed by others, but
noted only one has been filed by the United Utah Party, which seeks to add its
candidate to the ballot, but not to overturn the entire process.
In short, I contend the opinion was requested to help clarify duties for special
elections of the executive and legislative branches, not for a lawsuit.
About the second reason, the office contends in its denial that the opinion is a
draft because it was never provided to the Legislature. Although Utah Code 63-G-
2-301(3)(j) provides that drafts under certain circumstances are normally public,
none of those circumstances apply here. I contend that it is not a draft. As
Legislative General Counsel John Fellows told a joint caucus of House members, it
was completed, reviewed and signed which he said means it is not a draft, but a
final document. He said once it is signed, it should be released. I agree, and argue
that the opinion is not a draft since it was completed, reviewed and signed.
Please call me with any questions or to clarify my appeal and 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 business days that
GRAMA requires.

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

Dear Chief Administrative Officer,

This is to appeal a denial by the Attorney Generals Office of my GRAMA Request


#17-164, which I filed on June 21, 2017. The denial was dated June 28 and signed by
Lonny J. Pehrson. My request was for the following:

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:

Utah Code 63G-2-305(18) 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;
Utah Code 63G-2-305(22) drafts, unless otherwise classified as public.

I hereby appeal that denial. Following are my arguments and reasoning.


About the first reason that the opinion was written for, or in anticipation of,
litigation or a judicial, quasi-judicial, or administrative proceeding, I argue that is
not the case at all.
I attach the letter requesting the legal opinion from Senate President Wayne
Niederhauser and House Speaker Greg Hughes. It never mentions nor refers to a
need for the opinion because of likely court proceedings. It asks for clarification of
duties by the executive and legislative branches. The two leaders have said they
wanted the opinion to answer questions about the process as they considered
potential legislative action, or applying pressure to allow such legislation in a special
session or perhaps at the next general session.
The legislative leaders have been quoted in the press saying they do not plan to
file any lawsuits themselves because they do not want to interfere with the money
and efforts spent by candidates so far (I am attaching one such story). They have
said they worried the election might not withstand lawsuits if filed by others, but
noted only one has been filed by the United Utah Party, which seeks to add its
candidate to the ballot, but not to overturn the entire process.
In short, I contend the opinion was requested to help clarify duties for special
elections of the executive and legislative branches, not for a lawsuit.
About the second reason, the office contends in its denial that the opinion is a
draft because it was never provided to the Legislature. Although Utah Code 63-G-
2-301(3)(j) provides that drafts under certain circumstances are normally public,
none of those circumstances apply here. I contend that it is not a draft. As
Legislative General Counsel John Fellows told a joint caucus of House members, it
was completed, reviewed and signed which he said means it is not a draft, but a
final document. He said once it is signed, it should be released. I agree, and argue
that the opinion is not a draft since it was completed, reviewed and signed.
Please call me with any questions or to clarify my appeal and 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 business days that
GRAMA requires.

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

LEE DAVIDSON, on behalf of SALT LAKE TRIBUNE Petitioner, v.

UTAH ATTORNEY GENERALS OFFICE, Respondent.

DECISION AND ORDER

Case No. 17-34

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.

STATEMENT OF REASONS FOR DECISION

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.

2. 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, are protected records if properly classi ed by a governmental entity.
Utah Code 63G-2-305(18).

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.

6. The AGs O ce claimed that it clearly anticipated that quasi-judicial or administrative


proceedings before the Utah State Bar might result if the opinion letter was delivered to the
Legislature. Further, a lawsuit regarding the special election was commenced while the [AGs
O ces] legal opinion was still being drafter, and another lawsuit was led shortly thereafter.

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).

Entered this 23rd day of October 2017.

BY THE STATE RECORDS COMMITTEE


_______________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee

Page Last Updated October 23, 2017 .