Salt Lake City Corporation v. Haik , 767 Utah Adv. Rep. 9 ( 2014 )

2014 UT App 193_________________________________________________________
THE UTAH COURT OF APPEALS
SALT LAKE CITY CORPORATION ,
Petitioner and Appellee,
v.
MARK HAIK ,
Respondent and Appellant.
Opinion
No. 20130383-CA
Filed August 14, 2014
Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 120905667
Paul R. Haik, Attorney for Appellant
Margaret D. Plane and E. Russell Vetter, Attorneys
for Appellee
SENIOR JUDGE JUDITH M. BILLINGS authored this Opinion, in
which JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE
RUSSELL W. BENCH concurred.1
BILLINGS, Senior Judge:
¶1 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
1. The Honorable Judith M. Billings and the Honorable Russell W.
Bench, Senior Judges, sat by special assignment as authorized by
law. See generally Utah Code Jud. Admin. R. 11-201(6).
Salt Lake City Corp. v. Haik
Records Access and Management Act (GRAMA), see Utah Code
Ann. §§ 63G-2-101 to -901 (LexisNexis 2011).2 We affirm.
BACKGROUND
¶2 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
[a]ll 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, 1993; 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,
[These] records are not produced pursuant to Utah
Code Annotated, Section 63G-2-204(16) (17) (18) (a)
(b) (c) and (23) and revised under Section 63G-2-
305(16) subject to attorney client privilege (17)
2. Unless otherwise noted, we cite the GRAMA provisions and city
ordinances that were in effect at the time Haik filed his records
request.
20130383-CA 2 2014 UT App 193Salt Lake City Corp. v. Haik
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 63G-2-2043 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 63G-
2-305(16) and (17), and that the withheld records were not drafts as
required for protection under section 63G-2-305(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, “[A]ny party to this
3. Section 63G-2-204 is titled “Requests—Time limit for response
and extraordinary circumstances” and sets forth how a person may
request records as well as how and when a governmental entity
shall respond to a GRAMA request. Utah Code Ann. § 63G-2-204
(LexisNexis 2011).
4. The Board determined that the City’s reliance on its accurate
citation to the amended version of the Utah Code was misplaced
because the amended version did not apply to Haik’s request. The
Board further determined that the City’s inaccurate citations
constituted a failure to cite the statutory provisions supporting its
denial as required by section 63G-2-205(2)(b), see id. § 63G-2-
205(2)(b), and that the Opinion Letters were therefore not properly
(continued...)
20130383-CA 3 2014 UT App 193Salt Lake City Corp. v. Haik
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-2-403 . . . .”5
¶4 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.
4. (...continued)
withheld under the statutory provisions that were cited in the
City’s letter.
5. Section 2.64.140(G) of the Salt Lake City Code provided, “Any
party to the proceeding before the board may petition for review
of the board’s decision by the state records committee as provided
in section 63-2-403 of the act or the state district court.” Salt Lake
City, Utah, Code § 2.64.140(G) (2012).
20130383-CA 4 2014 UT App 193Salt Lake City Corp. v. Haik
¶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.
¶6 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 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. § 63G-2-305(17)
(LexisNexis 2011).) Alternatively, the district court determined that
the withheld records 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
¶7 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).
20130383-CA 5 2014 UT App 193Salt Lake City Corp. v. Haik
¶8 Next, Haik challenges the district court’s grant of summary
judgment, arguing that the court erroneously interpreted and
applied GRAMA. “An appellate court reviews a trial court’s legal
conclusions and ultimate grant or denial of summary judgment for
correctness and views the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”
Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal
quotation marks omitted). The issues Haik raises on appeal present
questions of statutory interpretation. “We review matters of
statutory construction for correctness.” Utah Dep’t of Pub. Safety v.
Robot Aided Mfg. Ctr., Inc., 2005 UT App 199, ¶ 6, 113 P.3d 1014. “To
the extent our analysis requires us to interpret GRAMA, we look
first to its plain language and interpret its terms in accord with
their usual and accepted meanings.” Maese v. Tooele Cnty., 2012 UT
App 49, ¶ 5, 273 P.3d 388 (citations and internal quotation marks
omitted).
¶9 Last, Haik asserts that the district court exceeded its
discretion in admitting the affidavits of Attorney and Director. “We
review the district court’s evidentiary rulings under an abuse of
discretion standard.” Olson v. Olson, 2010 UT App 22, ¶ 10, 226
P.3d 751. However, when the interpretation of an evidentiary rule
is at issue, we review the district court’s decision for correctness.
See Barrientos v. Jones, 2012 UT 33, ¶ 8, 282 P.3d 50.
ANALYSIS
I. The District Court’s Jurisdiction
¶10 Haik first argues that the district court lacked jurisdiction to
hear the City’s appeal from the Board’s decision. Haik contends
that only “requesters” are permitted to appeal an adverse decision
under GRAMA and that the City had no right to petition for
judicial review of the Board’s adverse decision.
20130383-CA 6 2014 UT App 193Salt Lake City Corp. v. Haik
¶11 The district court interpreted GRAMA to provide that the
City had the right to appeal the Board’s decision. The district court
relied on the Utah Code’s instruction that “[a]ppeals of the
decisions of the appeals boards established by political subdivisions
shall be by petition for judicial review to the district court” and that
“the conduct of the proceeding shall be in accordance with Sections
63G-2-402 and 63G-2-404.”6 Utah Code Ann. § 63G-2-701(6)
(LexisNexis 2011). The district court determined that the City
complied with the requirements for a petition for judicial review
under section 63G-2-404(3) and that the City was “not prevented
from filing an appeal merely because it is a governmental entity.”
¶12 We are required to interpret the provisions of GRAMA to
determine whether the City was entitled to petition the district
court for judicial review of the Board’s decision. In so doing, “[w]e
look first to the plain language of the statutes to determine their
meaning and to discern the intent of the legislature.” Berneau v.
Martino, 2009 UT 87, ¶ 12, 223 P.3d 1128. “We also examine the
purpose of the statute . . . and its relation to other statutes.” Id.(omission in original) (citation and internal quotation marks
omitted). “Provisions within a statute are interpreted in harmony
with other provisions in the same statute and with other statutes
under the same and related chapters.” Id. (citation and internal
quotation marks omitted).
¶13 Section 63G-2-701 of GRAMA allows political subdivisions,
like the City, to adopt ordinances and policies relating to records
access, including denials and appeals. Utah Code Ann. § 63G-2-
6. Section 63G-2-402 provides that if the chief administrative officer
of a governmental entity denies a records request, the requester
may appeal the denial to the records committee or “petition for
judicial review in district court as provided in Section 63G-2-404.”
Utah Code Ann. § 63G-2-402(1) (LexisNexis 2011). Because this case
does not involve a chief administrative officer’s denial of a records
request, section 63G-2-402 does not apply.
20130383-CA 7 2014 UT App 193Salt Lake City Corp. v. Haik
701(1)(a). When a political subdivision elects to adopt such
ordinances and policies, they must comply with the criteria set
forth in section 63G-2-701. Id. § 63G-2-701(1)(b). One criterion is
that “[t]he political subdivision . . . establish an appeals process for
persons aggrieved by classification, designation or access
decisions.” Id. § 63G-2-701(4)(a). The ordinance or policy pertaining
to the appeals process shall provide for
(i)(A) an appeals board composed of the governing
body of the political subdivision; or
(B) a separate appeals board composed of members
of the governing body and the public, appointed by
the governing body; and
(ii) the designation of a person as the chief
administrative officer for purposes of determining
appeals under Section 63G-2-401 of the governmental
entity’s determination.
Id. § 63G-2-701(4)(b) (emphasis added).
¶14 In this case, the City had ordinances in place regarding
records access under GRAMA. Salt Lake City, Utah, Code
§§ 2.64.010–.220 (2012). Under the City’s ordinance governing
appeals by persons aggrieved by the City’s response to a record
request, the City had an administrative appeals process involving
the Board, which substantially complied with the requirements for
“a separate appeals board composed of members of the governing
body and the public, appointed by the governing body,” see Utah
Code Ann. § 63G-2-701(4)(b)(i)(B); Salt Lake City, Utah, Code
§ 2.64.140(A)(i) (2012). Thus, when the City refused to allow Haik
access to the Opinion Letters, Haik appealed the City’s decision on
his GRAMA request to the Board. Once the Board reversed the
City’s decision, the City sought judicial review by the district court.
Haik contends that the City’s petition filed in the district court was
not allowed under GRAMA.
20130383-CA 8 2014 UT App 193Salt Lake City Corp. v. Haik
¶15 However, the plain language of section 63G-2-701 of
GRAMA broadly permits a district court to review the decision of
an appeals board: “Appeals of the decisions of the appeals boards
established by political subdivisions shall be by petition for judicial
review to the district court. The contents of the petition for review
and the conduct of the proceeding shall be in accordance with
Section[] . . . 63G-2-404.” Utah Code Ann. § 63G-2-701(6); see also
Khan v. Ogden City Records Review Bd., 2008 UT App 19U, para. 1
(per curiam) (reviewing a district court’s grant of summary
judgment on de novo review of the Ogden City Records Review
Board’s decision on the appellant’s GRAMA request).
Consequently, a petition for judicial review and the subsequent
proceedings involving appeals from the decisions of an appeals
board must comply with the requirements of section 63G-2-404,
which is titled “Judicial review,” Utah Code Ann. § 63G-2-404
(LexisNexis 2011).
¶16 Section 63G-2-404 sets forth some details for judicial review
in GRAMA cases. Subsection 63G-2-404(1)(a) provides that “[a]ny
party to a proceeding before the records committee may petition
for judicial review by the district court of the records committee’s
order.” Id. § 63G-2-404(1)(a). This subsection expressly allows “any
party” to petition for judicial review from the decision of the State
Records Committee. Id. See generally id. § 63G-2-103(24) (“‘Records
committee’ means the State Records Committee created in Section
63G-2-501.”); id. §§ 63G-2-501, -502 (detailing the creation and
duties of the State Records Committee). Because the State Records
Committee was not involved in this case, subsection 63G-2-404(1)
does not directly apply here. However, it is persuasive that the
statutory scheme intends to permit any party an opportunity to
seek judicial review.
¶17 In support of his position that only a “requester” may seek
judicial review of an appeals board’s decision on a GRAMA
request, Haik directs us to the next subsection of section 63G-2-404.
That subsection states, “A requester may petition for judicial
review by the district court of a governmental entity’s
20130383-CA 9 2014 UT App 193Salt Lake City Corp. v. Haik
determination as specified in Subsection 63G-2-402(1)(b).” Id.§ 63G-2-404(2)(a). Although the term “requester” is not defined
under GRAMA, see id. § 63G-2-103 (providing definitions for the
terms used in GRAMA), a requester presumably is a person who
seeks to inspect a public record, see generally id. § 63G-2-201(1)
(providing that “[e]very person has the right to inspect a public
record”). Under the plain language of subsection 63G-2-404(2)(a),
a requester may file a petition for judicial review of a governmental
entity’s determination when it was made by the chief
administrative officer. Id. § 63G-2-404(2)(a). As a result, this
subsection does not directly apply where, as here, a party instead
petitions for judicial review from an appeals board established by
a political subdivision.7
¶18 Our interpretation of section 63G-2-701 and GRAMA as a
whole is consistent with other provisions of the Utah Code that
permit either side to appeal from a decision made by an appeals
board established by a political subdivision. For example, a
municipal employee who is discharged may appeal the city’s
decision to a city appeal board. Id. § 10-3-1106(2)(a) (LexisNexis
2012). After an appeal board has taken final action, the appeal
board’s decision “may be reviewed by the Court of Appeals by
filing with that court a petition for review.” Id. § 10-3-1106(6)(a). In
accordance with this provision, this court has reviewed such
petitions filed by both sides to a proceeding before a city’s appeal
7. The statute authorizing a city to establish an appeals process
requires the city to provide for an appeals board and to “designat[e]
. . . a person as the chief administrative officer for purposes of
determining appeals under Section 63G-2-401 of the governmental
entity’s determination.” Id. § 63G-2-701(4)(b). When section 63G-2-
404 is read with this bifurcated structure in mind, subsection 63G-2-
404(2)(a)’s language allowing only a “requester” to petition for
judicial review makes sense where the appeal is from a decision of
the chief administrative officer of the city, a decision that the city
would have no need to appeal.
20130383-CA 10 2014 UT App 193Salt Lake City Corp. v. Haik
board—the city and the municipal employee. See, e.g., Hugoe v.
Woods Cross City, 2013 UT App 278, ¶ 1, 316 P.3d 979 (entertaining
a petition for review of a decision of the Woods Cross City
Employee Appeal Board filed by a terminated municipal
employee); Taylorsville City v. Taylorsville City Emp. Appeal Bd., 2013
UT App 69, ¶¶ 1, 18, 298 P.3d 1270 (addressing Taylorsville City’s
appeal from a decision by the Taylorsville City Employee Appeal
Board and noting that “the legislature has authorized
municipalities to create an appeal board or appoint a hearing
officer to hear appeals from merit employees who have been
terminated”). These cases also demonstrate that when a city
establishes an appeal board, the city and the appeal board are not
the same entity in subsequent proceedings.
¶19 In light of the broad language of section 63G-2-701—which
does not state that only the requester may appeal the decision of an
appeals board, Utah Code Ann. § 63G-2-701(6) (LexisNexis 2011),
and under which the City had established “an appeals process for
persons aggrieved by . . . access decisions,” see id. § 63G-2-
701(4)(a)—we conclude that any party to a proceeding before an
appeals board created pursuant to section 63G-2-701(4)(b)(i) may
petition for judicial review of the appeals board’s decision. Because
district courts have original jurisdiction in civil matters, id. § 78A-5-
102(1) (2012), and because GRAMA provides that “[a]ppeals of the
decisions of the appeals boards established by political subdivisions
shall be by petition for judicial review to the district court,”8 id.
§ 63G-2-701(6) (2011), we affirm the district court’s conclusion that,
like the parties who are denied access to records and have the right
to judicial review, governmental entities, such as the City, also have
8. The City’s ordinance in effect at the time was consistent with the
language of section 63G-2-701(6): “Any party to the proceeding
before the board may petition for review of the board’s decision by
the state records committee as provided in section 63-2-403 of the
act or the state district court.” Salt Lake City, Utah, Code
§ 2.64.140(G) (2012).
20130383-CA 11 2014 UT App 193Salt Lake City Corp. v. Haik
the right to judicial review when seeking to assert legitimate
protection of records. Accordingly, the district court properly
exercised jurisdiction over the City’s petition for judicial review of
the Board’s decision.9
II. Summary Judgment
¶20 Next, Haik challenges the district court’s grant of summary
judgment, arguing that the court erroneously interpreted and
applied GRAMA. Specifically, Haik argues that the district court
erred in determining that the City’s letter denying his GRAMA
request met the statutory notice requirements, and that the Opinion
Letters were protected records under GRAMA. Haik also argues
that disputed issues of material fact precluded summary judgment
in this case.
A. The City’s Letter Adequately Put Haik on Notice of the
Grounds for the Denial.
¶21 Haik argues that the City’s letter failed to meet the statutory
requirements for denials of GRAMA requests because the statutory
provisions cited in the letter were not accurate. The district court
concluded that the City’s letter contained a typographical error but
nevertheless met the statutory requirements and adequately put
Haik on notice of the grounds for the denial.
9. Haik also argues that the City was not permitted to petition for
judicial review of the Board’s decision because, as Haik asserts, the
City is not a “person” under GRAMA. In determining that it had
jurisdiction over this matter, the district court concluded that the
City was both a “governmental entity” and a “person” under
GRAMA’s definitions of those terms, see Utah Code Ann. § 63G-2-
103(11), (17) (LexisNexis 2011). However, because the district
court’s jurisdictional ruling did not depend on the definition of
governmental entity or person, we do not address this argument.
20130383-CA 12 2014 UT App 193Salt Lake City Corp. v. Haik
¶22 Under GRAMA, a governmental entity denying a GRAMA
request in whole or in part shall provide notice of the denial to the
requester. Utah Code Ann. § 63G-2-205(1) (LexisNexis 2011). As
required by statute, the notice of denial shall contain (i) “a
description of the record or portions of the record to which access
was denied,” (ii) “a statement that the requester has the right to
appeal the denial to the chief administrative officer of the
governmental entity,” and (iii) “the time limits for filing an appeal”
and contact information for the chief administrative officer. Id.
§ 63G-2-205(2). Additionally, the statute requires the notice of
denial to include (iv) “citations to the provisions of [GRAMA],
court rule or order, another state statute, federal statute, or federal
regulation that exempt the record or portions of the record from
disclosure, provided that the citations do not disclose private,
controlled, or protected information or information exempt from
disclosure under Subsection 63G-2-201(3)(b).” Id. § 63G-2-205(2)(b).
¶23 Although GRAMA does not state the consequences to be
applied if the governmental entity does not strictly comply with
these notice requirements, see id. § 63G-2-205,
[g]enerally, substantial compliance with a statutory
provision is adequate when the provision is
directory, meaning it goes merely to the proper,
orderly and prompt conduct of the business; when
the result will nevertheless effectuate the policy
behind the statute; and when using a substantial
compliance standard will not result in prejudice.
Southwick v. Southwick, 2011 UT App 222, ¶ 12, 259 P.3d 1071(citations and internal quotation marks omitted). “By contrast, strict
compliance is required when a provision affects substantive rights
or when substantial compliance will result in prejudice.” Id. “Thus,
‘[l]egislative intent, as discerned from the wording of the statute,
and possible prejudice to the moving party must therefore be
evaluated when deciding whether strict compliance is required.’”
20130383-CA 13 2014 UT App 193Salt Lake City Corp. v. Haik
Id. (alteration in original) (quoting Aaron & Morey Bonds & Bail v.
Third Dist. Court, 2007 UT 24, ¶ 9, 156 P.3d 801).
¶24 The language of section 63G-2-205 indicates that the notice
“shall contain” certain information, including a citation to the
provisions that exempt the withheld records from disclosure. Utah
Code Ann. § 63G-2-205(2). “‘[S]hall’ is generally presumed to
indicate a mandatory requirement, [but] it has also been
interpreted as merely directory.” Aaron & Morey, 2007 UT 24, ¶ 14
n.2. The language of the statute evidences a legislative intent to
ensure that those whose GRAMA requests are denied receive
adequate notice of the basis for the governmental entity’s refusal
to provide access to certain records. We interpret section 63G-2-205
to call for substantial compliance with the notice requirements,
which are met when the notice of denial provides enough
information for a requester to understand the reasons for the
governmental entity’s decision, provided that the requester is not
prejudiced by the governmental entity’s failure to strictly comply
with the requirements.
¶25 In this case, the City responded to Haik’s GRAMA request
with a letter that the district court deemed to be in compliance with
three of the requirements under section 63G-2-205. The City’s letter
included a list describing the withheld records and stated,
[These] records are not produced pursuant to Utah
Code Annotated, Section 63G-2-204(16) (17) (18) (a)
(b) (c) and (23) and revised under Section 63G-2-
305(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 . . . .
20130383-CA 14 2014 UT App 193Salt Lake City Corp. v. Haik
However, the City’s letter did not strictly comply with the
remaining requirement, because it did not provide accurate
“citations to the provisions of [GRAMA], court rule or order,
another state statute, federal statute, or federal regulation that
exempt the record or portions of the record from disclosure.” Utah
Code Ann. § 63G-2-205(2)(b). As the district court put it, the
reference to section 63G-2-204 in the City’s letter is “clearly
incorrect” because that section addresses “Requests–Time limit for
response and extraordinary circumstances,” id. § 63G-2-204. The
City’s letter should have cited section 63G-2-305, which describes
the types of records that are protected, id. § 63G-2-305.
¶26 Despite the City’s typographical error in citing the statutes
that exempted the Opinion Letters from disclosure, we agree with
the district court’s ultimate conclusion that the City put Haik on
notice of the grounds for the denial of his GRAMA request. While
the numbers of the statutory provisions cited as the basis for the
City’s denial are incorrect, the substance of the City’s letter is
accurate and sufficient to put Haik on notice that the City did not
allow him to access the Opinion Letters because they were “subject
to attorney client privilege,” “records prepared for or by an
attorney . . . for, or in anticipation of litigation,” and “records
concerning a governmental entity’s strategy about imminent or
pending litigation.” The City’s letter also informed Haik that he
had “requested records of ‘[advice] or assistance’ provided by
[Attorney],” that Attorney’s firm “has represented the City in
various matters of litigation,” and that the City therefore did “not
include[] records concerning these matters.” Thus, the City
substantially complied with the GRAMA requirements for a notice
of denial. In addition, Haik has not demonstrated that he was
prejudiced in any way by the typographical error in the City’s
notice of denial. We therefore affirm the district court’s conclusion
that the City adequately put Haik on notice of the reasons it denied
his GRAMA request.
20130383-CA 15 2014 UT App 193Salt Lake City Corp. v. Haik
B. The Withheld Records Are Protected Under GRAMA.
¶27 Haik argues that the district court erred in applying
GRAMA to determine that the Opinion Letters are protected
records. Haik contends that the district court retroactively applied
the 2012 version of GRAMA instead of the 2011 version in effect
when he filed his GRAMA request. He further contends that under
the 2011 version of GRAMA, the Opinion Letters did not qualify as
protected records because they were not “prepared by or on behalf
of a governmental entity solely in anticipation of litigation.” See
Utah Code Ann. § 63G-2-305(16) (LexisNexis 2011) (emphasis
added).
¶28 GRAMA states that “[e]very person has the right to inspect
a public record” and that “[a] record is public unless otherwise
expressly provided by statute.” Id. § 63G-2-201(1)–(2). Included
among those records that are not public are “record[s] that [are]
private, controlled, or protected under Sections 63G-2-302, 63G-2-
303, 63G-2-304, and 63G-2-305.” Id. § 63G-2-201(3)(a). Section 63G-
2-305 sets forth the types of records that are protected under
GRAMA and generally includes records prepared in anticipation
of litigation. See id. § 63G-2-305.
¶29 In this case, the district court determined that the City’s
letter asserted that the Opinion Letters were withheld as protected
under section 63G-2-305(17), which exempts from disclosure
“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,” id.
§ 63G-2-305(17). Based on the district court’s in camera review of
the Opinion Letters, the court determined that “it is clear that [the
Opinion Letters] concern contracts and that there were concerns
about litigation.” Furthermore, the district court relied on the
undisputed facts and the City’s affidavits stating that the records
contained “mental impressions and legal theories of an attorney
concerning anticipated litigation.” The district court therefore
concluded that the Opinion Letters were attorney work product
20130383-CA 16 2014 UT App 193Salt Lake City Corp. v. Haik
and were protected under section 63G-2-305(17). In the alternative,
the district court ruled that the Opinion Letters were protected
under the 2012 version of section 63G-2-305(16), which protects
records “subject to the attorney client privilege,” see id. § 63G-2-
305(16) (Supp. 2012).
¶30 Haik argues that the district court erred by applying section
63G-2-305(16) to the facts of this case. He contends that the Opinion
Letters were not prepared solely in anticipation of litigation and
that the district court applied the broad language of the 2012
version of section 63G-2-305(16) to hold that the Opinion Letters
were subject to attorney–client privilege. Compare id. § 63G-2-
305(16) (2011) (exempting from disclosure “records prepared by or
on behalf of a governmental entity solely in anticipation of
litigation that are not available under the rules of discovery”), with
id. § 63G-2-305(16) (Supp. 2012) (exempting from disclosure
“records that are subject to the attorney client privilege”).
¶31 But while we accept Haik’s contention that the 2011 version
of GRAMA applies in this case, we are not persuaded that the
district court erred in determining that the Opinion Letters are
protected attorney work product under the 2011 version of
GRAMA. Subsection 63G-2-305(17) protects “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.” Id. § 63G-2-305(17) (2011). For this
exemption to apply, “the asserting party must show that the
documents or materials were prepared in anticipation of litigation
by or for a party or that party’s representative.” Southern Utah
Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT
88, ¶ 29, 200 P.3d 643 (citation and internal quotation marks
omitted). The undisputed facts indicate that the Opinion Letters
addressed the water-exchange agreements with which the City had
concerns about litigation. Attorney’s and Director’s affidavits
establish that the Opinion Letters were in response to threats of
litigation and detailed Attorney’s legal ideas, theories, opinions,
and advice about prospective litigation. The Opinion Letters are
20130383-CA 17 2014 UT App 193Salt Lake City Corp. v. Haik
therefore “records disclosing an attorney’s work product, including
the mental impressions or legal theories of an attorney . . .
concerning litigation.” Utah Code Ann. § 63G-2-305(17). As such,
the district court did not err in concluding that the Opinion Letters
were protected from disclosure under GRAMA.
C. There Were No Disputed Issues of Material Fact.
¶32 Haik next argues that disputed issues of material fact should
have precluded the district court from granting summary judgment
to the City. In particular, Haik contends that the public records of
payments made to Attorney indicate that the primary purpose of
Attorney’s employment was to provide contract review rather than
to prepare for anticipated litigation. According to Haik, the district
court improperly weighed the evidence by relying on the City’s
affidavits to conclude that undisputed facts showed that the
Opinion Letters were generated in anticipation of litigation.
¶33 Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Utah R. Civ. P. 56(c). After a
party moving for summary judgment shows that there is no
genuine issue of material fact, the burden shifts to the nonmoving
party “to identify contested material facts.” Orvis v. Johnson, 2008
UT 2, ¶ 10, 177 P.3d 600. “[I]t only takes one sworn statement
under oath to dispute the averments on the other side of the
controversy and create an issue of fact.” Draper City v. Estate of
Bernardo, 888 P.2d 1097, 1101 (Utah 1995) (citation and internal
quotation marks omitted).
¶34 In opposing the City’s motion for summary judgment before
the district court, Haik made evidentiary objections to Attorney’s
and Director’s affidavits, and he offered statements of additional
facts. However, even construing these additional facts in the light
most favorable to Haik, these additional facts did not create
20130383-CA 18 2014 UT App 193Salt Lake City Corp. v. Haik
disputed issues of material fact. For example, Haik provided
evidence of an October 8, 1992 order from the Third District Court
that dismissed a case brought by several irrigation companies
against the City. Contrary to Haik’s argument that this order of
dismissal demonstrates that the City did not face imminent
litigation, this order shows that the City was threatened with
litigation. Likewise, on appeal, Haik points us to facts that do not
create a disputed issue of material fact. Attorney’s payment records
indicate that Attorney analyzed the water-exchange agreements.
However, those records do not dispute the averments in the City’s
affidavits that Attorney’s reviews were done in anticipation of
litigation and that the Opinion Letters contained Attorney’s mental
impressions and advice regarding potential litigation. Because Haik
has not demonstrated contested material facts, the district court did
not err in concluding that no genuine issue of material fact existed
that would preclude summary judgment.
¶35 In sum, the district court properly concluded that the City’s
typographical error in citing the incorrect statutory provision did
not render the City’s notice inadequate, that the Opinion Letters
were protected records under GRAMA, and that there were no
disputed issues of material fact. Accordingly, the district court did
not err in granting summary judgment to the City.
III. Evidentiary Rulings
¶36 Finally, Haik contends that the district court exceeded its
discretion in overruling his evidentiary objections to the affidavits
attached in support of the City’s motion for summary judgment.
See generally Utah R. Civ. P. 56(e) (“Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters
stated therein.”). In his brief to this court, Haik identifies the
portions of the City’s affidavits which he claims are inadmissible
and broadly asserts that Director and Attorney lacked personal
20130383-CA 19 2014 UT App 193Salt Lake City Corp. v. Haik
knowledge and that the statements are irrelevant and inadmissible
hearsay.
¶37 Our rules of appellate procedure require that the appellant’s
brief “contain the contentions and reasons of the appellant with
respect to the issues presented, . . . with citation to the authorities,
statutes, and parts of the record relied on.” Utah R. App. P.
24(a)(9). “While failure to cite to pertinent authority may not
always render an issue inadequately briefed, it does so when the
overall analysis of the issue is so lacking as to shift the burden of
research and argument to the reviewing court.” State v. Thomas, 961
P.2d 299, 305 (Utah 1998). When an appellant’s overall analysis is
so lacking, an appellant does not meet its burden of persuasion on
appeal. See Salt Lake Cnty. v. Butler, Crockett & Walsh Dev. Corp.,
2013 UT App 30, ¶ 37 n.5, 297 P.3d 38.
¶38 With regard to Haik’s arguments contesting the
admissibility of the City’s affidavits, Haik has not met his burden
of persuasion on appeal. By failing to even include citations to and
discussions of the Utah Rules of Evidence and other pertinent
authority, Haik’s appellate brief does not engage in a meaningful
analysis of the issues he raises and the application of the law to his
case. “When a brief fails to cite relevant legal authority or provide
any meaningful analysis regarding [an] issue, this court will not
consider [the] appellant’s argument.” In re S.A., 2001 UT App 308,
¶ 23, 37 P.3d 1172 (first alteration in original) (citation and internal
quotation marks omitted). We therefore affirm the district court’s
rulings on Haik’s objections to the City’s affidavits without
reaching the merits of those rulings.
CONCLUSION
¶39 The district court properly exercised jurisdiction over the
City’s petition for judicial review of the Board’s decision. The
district court did not err in granting summary judgment to the City
because the withheld records are protected under GRAMA. Finally,
20130383-CA 20 2014 UT App 193Salt Lake City Corp. v. Haik
we affirm the district court’s rulings on Haik’s evidentiary
objections to the affidavits the City filed in support of its motion for
summary judgment.
20130383-CA 21 2014 UT App 193