Utah Legal Clinic v. Salt Lake City Corporation

2019 UT App 58
THE UTAH COURT OF APPEALS
U TAH LEGAL C LINIC,
Appellant,
v.
S ALT LAKE C ITY C ORPORATION AND S TATE R ECORDS
C OMMITTEE OF THE S TATE OF U TAH ,
Appellees.
Opinion
No. 20170362-CA
Filed April 11, 2019
Third District Court, West Jordan Department
The Honorable James D. Gardner
No. 160905336
Angela H. Elmore, Attorney for Appellant
Catherine L. Brabson and Margaret D. Plane,
Attorneys for Appellee Salt Lake City Corporation
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. O RME and D AVID N. M ORTENSEN concurred.
HAGEN, Judge:
¶1 	Utah Legal Clinic (ULC) appeals the denial of its petition
to set aside the final decision and order of the State Records
Committee 	(the 	Committee) 	denying 	ULC’s 	appeal 	from 	a
records request under the Government Records Access and
Management Act (GRAMA). See Utah Code Ann. §§ 63G-2-101
to -901 (LexisNexis 2016).1 In the GRAMA request at issue, ULC
1. Because the statutory provisions in effect at the relevant time
do not differ in any way material to our analysis from those now
in effect, we cite to the current version of the Utah Code for
convenience.

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requested that Salt Lake City Corporation (the City) disclose all
records from the City Prosecutor’s Office relating to the criminal
prosecution of a ULC client. In response to the request, the City
declined 	to 	turn 	over 	certain 	records 	it 	determined 	to 	be
protected attorney-client communications and attorney work
product. See id. § 63G-2-305(17)–(18) (LexisNexis Supp. 2018). On
review, the district court balanced ULC’s stated public interest in
exposing misconduct by the chief city prosecutor in its client’s
criminal case with the City’s interest in protecting prosecutor
communications relating to threatened litigation and the exercise
of prosecutorial discretion. Because the district court correctly
determined that the public interest in favor of disclosing the
records was not equal to or greater than the City’s interest in
nondisclosure, we affirm its denial of ULC’s petition to set aside
the Committee’s final decision and order.
BACKGROUND
Criminal Charges
¶2 	In July 2013, Trenton Mellen was pulled over by a Salt
Lake City police officer after failing to stop or yield at a stop
sign. 	Based 	on 	the 	officer’s 	observations 	and 	Mellen’s
performance on a field sobriety test, Mellen was arrested and
charged by the City with driving under the influence, driving
with an expired driver license, and failure to stop or yield at a
stop sign. Mellen was subjected to a blood test, which revealed
that he had low levels of Trazodone, an anti-depressant and
sleep aid, in his system at the time of his arrest. After he received
the report, Mellen provided letters to the City from two of his
doctors, 	in 	which 	the 	doctors 	explained 	that 	Mellen 	took
therapeutic levels of Trazodone to treat a medical condition and
that they did not believe he ever abused the drug. Neither letter
expressly stated that the drug did not impair Mellen’s driving.

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¶3 	In April 2014, after learning from the toxicologist that the
level of Trazodone in Mellen’s blood was therapeutic but could
still impair his driving, the City offered to dismiss the driving
under the influence charge if Mellen would plead guilty to being
an incapable driver and failure to stop at a stop sign. In an email
to 	the 	City, 	Mellen’s 	attorney 	characterized 	the 	offer 	as
“offensive” and stated that she and Mellen intended to “fight
this as long as we have to in order to get the desired result.”
Mellen filed a motion to suppress the results of his blood test
and in July 2014, the justice court granted Mellen’s suppression
motion, determining after an evidentiary hearing that the officer
lacked probable cause to arrest him. Pursuant to Utah Code
section 78A-7-118, which entitles prosecutors to a hearing de
novo on a “pretrial order excluding evidence,” the City appealed
this 	ruling 	to 	the 	district 	court. 	See 	Utah 	Code 	Ann.
§ 78A-7-118(5)(f) (LexisNexis 2018). After the de novo hearing,
the district court determined that the officer had probable cause
to arrest Mellen and remanded the case back to the justice court.
See id. § 78A-7-118(6).
¶4 	Following the remand, trial was set for April 2015. Two
weeks before the trial date, Mellen provided the City with notice
that 	an 	expert 	would 	testify 	that 	the 	Trazodone 	“did 	not
influence or impair [Mellen’s] driving.” The City dismissed
Mellen’s charges without prejudice before trial.
Civil Lawsuit
¶5 	Throughout the proceedings, Mellen maintained that he
was not guilty of driving under the influence and had only
performed poorly during the field sobriety test due to a prior
brain injury. During the traffic stop, Mellen told the officer that
he 	was 	not 	under 	the 	influence 	of 	alcohol 	or 	drugs. 	Both
Mellen’s mother and his uncle also spoke to the officer before
Mellen’s arrest and confirmed that Mellen had some physical

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disabilities, but that he had driven without incident since he was
old enough to drive.
¶6 	Mellen’s uncle later contacted the Salt Lake City Council,
expressing general concern about the way the City was handling
Mellen’s case and specific concern about the policies of the
chief 	city 	prosecutor 	at 	that 	time—Padma 	Veeru-Collings.
Mellen’s mother also contacted the Salt Lake City Council by
email and expressed similar concerns. She concluded her email
to the city council by stating that “it ha[d] come to [her] attention
that there is a potential class action suit by and for the disabled
and [a local newspaper was] planning an article on [Veeru-
Collings]” and that she “would like to see this avoided.” In
August 2014, while the issue of probable cause was pending in
the district court, a local newspaper did publish an article that
included information about Mellen’s case. The article criticized
Veeru-Collings’s management of Salt Lake City prosecutors and
their continued 	pursuit of 	charges against Mellen. Alleging
prosecutorial conduct in Mellen’s case and one other, the article
suggested that prosecutors under Veeru-Collings’s supervision
were prohibited from exercising discretion in dismissing cases,
making plea offers, and pursuing less severe punishments for
defendants.
¶7 	In April 2016, represented by ULC, Mellen filed a notice
of claim against the City and four current and former city
prosecutors, including Veeru-Collings. The claim alleged that the
City, through its employees, engaged in malicious prosecution
“when it caused [Mellen] to be prosecuted with malice and
without probable cause,” engaged in retaliatory prosecution
against Mellen “for his participation in the [local newspaper]
article,” and violated Mellen’s constitutional rights under the
First, Fourth, and Fourteenth Amendments to the United States
Constitution.

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Records Request
¶8 	A few months before filing the notice of claim on Mellen’s
behalf, ULC made a GRAMA request that the City provide
“[a]ny and all emails sent or received by” any “employee or
agent of [the City] . . . from July 1, 2013 until today that reference
Trenton Mellen” or his justice court or district court cases. The
City processed and granted ULC’s request in part, providing
some 	records 	but 	declining 	to 	produce 	others 	because 	it
determined that they were prepared “for, or in anticipation of,
litigation 	or 	a 	judicial, 	quasi-judicial, 	or 	administrative
proceeding.” See Utah Code Ann. § 63G-2-305(18) (LexisNexis
Supp. 2018).
¶9 	ULC appealed the City’s incomplete release of records to
the 	Committee, 	arguing 	that 	the 	City 	misclassified 	the
unreleased records as protected under Utah Code subsections
63G-2-305(17)–(18) and that even if the records were properly
classified, “public interest in the disclosure of these documents
heavily outweighs the[ir] restriction” because the public has a
“very strong” interest “in exposing unethical and potentially
tortious actions within the City Prosecutor’s office.” After in
camera review of the records at issue, the Committee denied
ULC’s appeal, determining that the City had properly classified
the records as protected and should not be required to produce
them.
¶10 	ULC filed a petition for judicial review of the Committee’s
determination and the district court held a bench trial on the
matter. At trial, ULC argued that there was a strong public
interest “in maintaining a public trust with the prosecutor’s
office,” in ensuring “that taxpayer money is not used in such a
manner that wastes valuable resources,” and in ensuring “that
prosecutors retain the ability to use discretion,” all of which
favored disclosure. In support of this argument, ULC pointed to
the local newspaper article and anonymous comments about it

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that had been posted online, statements from city prosecutors in
emails sent to Mellen’s defense counsel, and statements from
Veeru-Collings to Mellen’s uncle. ULC also submitted affidavits
from Mellen and his mother. Mellen and his mother described
the negative impact that Mellen’s case had on their lives and
requested 	that 	the 	records 	be 	released 	so 	that 	they 	could
understand 	what 	motivated 	the 	City 	to 	prosecute 	Mellen.
According to ULC, this evidence supports the assertion that
“there 	was 	concern 	in 	the 	community 	regarding
[Veeru-Collings’s] office” that demonstrates a public interest in
disclosure of the records.
¶11 	The City argued that the evidence did not support a
substantial public interest in disclosure. It asserted that based on
the evidence submitted at trial, ULC was instead requesting
disclosure of the records on behalf of Mellen in order to use
them in his civil case against Veeru-Collings and other city
prosecutors. It claimed ULC was “asking the Court to turn over
emails for at least one express purpose, of attacking the folks
involved in [the City Prosecutor’s Office] communication[s].”
The City also offered the testimony of one of the city prosecutors
who had been named in Mellen’s notice of claim. He testified
that there would be a chilling effect if a prosecutor’s “thoughts,
mental impressions and conclusions about a case could later
serve as the basis of a civil suit against them.”
¶12 	After 	taking 	the 	evidence 	submitted 	at 	trial 	under
advisement and reviewing the records in camera, the district
court 	concluded 	both 	that 	the 	records 	contained 	protected
attorney-client communications and attorney work product and
that “the interest favoring restriction of access to the subject
documents in this case outweighs the public interest favoring
access.” In support of this conclusion, the court found that the
fact 	that 	ULC 	had 	filed 	a 	notice 	of 	civil 	claim 	against
Veeru-Collings and three other City prosecutors on behalf of
Mellen and that Veeru-Collings had left the City before ULC

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requested 	the 	records weighed 	against 	ULC’s stated 	public
interest. As a result, the court determined that “ULC’s records
request [was] largely an end run around the discovery rules and
the protection of the attorney-client and work product privileges
that would apply in the civil litigation.” The court also found
“that ULC’s motivation for the records request is to question the
Prosecutor’s Office’s exercise of its prosecutorial discretion in
[Mellen’s criminal case].” In other words, “the [court found] that
ULC’s stated public interest is secondary to [Mellen’s] personal
interest in the records.” Ultimately, “the fact that a civil action
against [the City] has been threatened weighs heavily in favor of
the [City’s] interest favoring restriction of 	access, especially
where the content of the protected documents—the prosecutors’
exercise of their prosecutorial discretion—is at the heart of the
threatened civil litigation.” Accordingly, the court dismissed
ULC’s petition to set aside the Committee’s final decision and
order.
¶13 	ULC appeals the district court’s conclusion that it failed to
show by a preponderance of the evidence that the public interest
favoring access is equal to or greater than the interest favoring
restriction of access.2
ISSUE AND STANDARD OF REVIEW
¶14 	ULC contends that the district court erred in deciding that
the 	City’s 	interest 	in 	nondisclosure 	outweighed 	the 	public
interest in access because it improperly weighed general policy
interests and wrongly considered the private benefit to Mellen of
2. 	ULC 	does 	not 	ask 	us 	to 	review 	the 	district 	court’s
determination 	that 	the 	records 	were 	correctly 	classified 	as
protected but only whether, assuming the records were properly
classified, the district court properly balanced the relevant policy
interests.

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disclosure. 	“Because 	balancing 	competing 	interests 	is 	a
fact-intensive and inherently discretionary task, we review the
district court’s decision [about the balance of policy interests] for
abuse of discretion.” Schroeder v. Utah Attorney Gen.’s Office, 2015
UT 77, ¶ 17, 358 P.3d 1075 (quotation simplified). However, to
the extent that ULC contends that the district court misapplied
the 	legal 	standard 	in 	conducting 	the 	balancing 	test 	by
considering 	irrelevant interests, 	“we 	review 	its decision 	for
correctness.” Id.
ANALYSIS
¶15 	Utah’s 	GRAMA 	statutory 	framework 	is 	designed 	to
balance 	“the 	right 	of 	access 	to 	information 	concerning 	the
conduct of the public’s business,” Deseret News Publ’g Co. v. Salt
Lake County, 2008 UT 26, ¶ 13, 182 P.3d 372, with privacy rights
relating to personal information collected by the government
and “the public policy interest in allowing a government to
restrict access to certain records . . . for the public good,” Utah
Code 	Ann. 	§ 	63G-2-102(2) 	(LexisNexis 	2016). 	Under 	this
framework, “[a] record is public unless otherwise expressly
provided by statute” and “[e]very person has the right to inspect
[the record] free of charge.” Id. § 63G-2-201(1)–(2) (LexisNexis
Supp. 	2018). 	But 	when 	government 	records 	are 	properly
classified into a category of record that is designated by statute
as “protected,” see, e.g., id. § 63G-2-305(17)–(18), the records
“may be ordered to be disclosed . . . only if the person or party
seeking 	disclosure 	of 	the 	record 	has 	established, 	by 	a
preponderance of the evidence, that the public interest favoring
access is equal to or greater than the interest favoring restriction
of access,” id. § 63G-2-406(1) (LexisNexis 2016).
¶16 	Because ULC does not dispute that the records at issue
were properly classified as protected, it has the burden to show
that the public interest in releasing the records is equal to or
greater than the City’s interest in nondisclosure. To determine

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whether ULC met this burden, the district court was required to
weigh and consider “the various interests and public policies
pertinent to the classification and disclosure and nondisclosure.”
Id. § 63G-2-404(7)(a) (LexisNexis Supp. 2018). Generally, we will
not 	“second-guess 	[a] 	district 	court’s 	decision 	[under 	this
section] so long as it considers all legally relevant factors and
reaches 	a 	conclusion 	permitted 	by 	law.” 	Schroeder 	v. 	Utah
Attorney Gen.’s Office, 2015 UT 77, ¶ 49, 358 P.3d 1075 (quotation
simplified). 	In 	balancing 	“the 	various 	interests 	and 	public
policies,” the court must conduct an analysis of the parties’
specific interests, “not a general analysis of competing public
policies.” Id. ¶ 57. In other words, “the [court’s] balancing
analysis under GRAMA must be tethered to the specific interests
of the parties and the particularized application of the relevant
public policies at issue.” Id. ¶ 51.
¶17 	Our 	supreme 	court 	has 	defined 	the 	contours 	of 	the
GRAMA balancing analysis on only one occasion. In Schroeder,
the court determined that the district court had failed to focus on
the “specific interests for and against” disclosing the records and
had therefore applied “an improper legal standard” and abused
its discretion. Id. ¶ 57. Applying the proper standard, the court
held that the records should be disclosed. Id. ¶ 60. The work
product 	records 	at 	issue 	in 	Schroeder 	related 	to 	a 	public
corruption investigation of the Ogden mayor’s office, which was
alleged 	to 	have 	“solicited 	and 	then 	diverted 	thousands 	of
dollars” from a non-profit formed by the mayor to local political
campaigns. 	Id. 	¶¶ 	5, 	58. 	The 	court 	observed 	that 	“[t]hese
allegations, if true, indicate[d] that an elected official breached
the public trust by soliciting funds under false pretenses to
benefit political allies” and that, because the non-profit used a
shell entity to divert the funds, the scheme was “largely hidden
from the public.” Id. ¶ 58. As a result, the court determined that
disclosure of the attorney work product records would serve the
“particularly weighty” right of the public to know “whether
their 	elected 	officials 	engaged 	in 	unethical, 	and 	potentially

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criminal, activity.” Id. The government’s interest in protecting
attorney 	work 	product, 	on 	the 	other 	hand, 	was 	“far 	less
compelling” 	because 	the 	investigation 	had 	been 	closed 	for
several years and thus any interest the government had “in
maintaining state prosecutors’ zone of privacy to effectively
litigate the case [had] diminished substantially.” Id. ¶ 59. Upon
properly 	balancing 	these 	two 	interests, 	our 	supreme 	court
determined that the public’s right to access the records clearly
outweighed the government’s interest in nondisclosure. Id. ¶ 60.
¶18 	The balancing analysis conducted by the district court
here comports with the principles of Schroeder and the statutory
requirements of GRAMA. The district court found that ULC’s
specific interest in gaining access to the records “is to obtain
evidence to use in [Mellen’s] threatened civil litigation” against
employees of the City and “to question the Prosecutor’s Office’s
exercise 	of 	its prosecutorial 	discretion 	in 	[Mellen’s criminal
case].” 	The 	district 	court 	noted 	that 	ULC 	had 	not 	alleged
“widespread 	corruption 	by 	public 	officials” 	at 	the 	City
Prosecutor’s 	Office. 	Instead, 	ULC 	took 	issue 	with
Veeru-Collings’s management style and the amount of discretion
she gave her subordinates to dismiss cases “in the interests
of 	justice.” 	The 	court 	determined 	that 	the 	“presence 	of
media coverage” was not “all too significant” in weighing the
public interest as it was Mellen’s counsel who “initiated the
coverage.” 	Moreover, 	given 	that 	Veeru-Collings 	no 	longer
worked for the City and there were no allegations that the
Prosecutor’s 	Office 	was 	“currently 	engaged 	in 	the 	type 	of
conduct described in the [local newspaper] article or . . . believed
to have occurred in [Mellen’s criminal case],” the disclosure
would not address any ongoing concerns about the manner in
which public officials were discharging their duties. Given that
“ULC’s allegations [were] mainly limited to [Mellen’s criminal
case],” the court concluded that “[t]he public interest advanced
by ULC is weak.”

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¶19 	The 	district 	court 	weighed 	this 	weak 	public 	interest
against the City’s interest in “the ability of the Prosecutor’s
Office 	to 	function 	in 	ongoing 	matters” 	through 	written
communication 	without 	“the 	attorneys’ 	thoughts, 	mental
impressions and conclusions about a case” later serving “as the
basis for a civil suit against them.” It determined that “[t]he vast
majority 	of 	the 	protected 	documents 	are 	e-mail
communications” 	that 	“largely 	reflect 	the 	exercise 	of 	the
attorneys’ prosecutorial discretion in [Mellen’s criminal case] or
seeking legal advice related to [ULC’s] threatened litigation.”
Although the City’s interest in protecting the “state prosecutors’
zone of privacy to effectively litigate the [criminal] case [had]
diminished substantially,” see Schroeder, 2015 UT 77, ¶ 59, the
City 	retained 	an 	“important 	interest” 	in 	protecting 	the
information contained in records “where ULC seeks to use that
information in a suit against [the City] and the very attorneys
that were involved in the protected communications.” Thus, the
district court considered the specific interests of the parties and
“the particularized application of the relevant public policies at
issue” before determining that public policy weighed against
disclosure. See id.
¶20 	ULC 	nevertheless 	contends 	that 	the 	district 	court
improperly 	weighed 	the 	City’s 	general 	policy 	interest 	in
avoiding a chilling effect on written communication between
prosecutors. But in making this argument, ULC fails to point to
where 	in 	the 	district 	court’s 	findings 	of 	fact 	and 	order 	of
dismissal the court relied on the City’s general policy interests.
Indeed, 	what 	the 	court 	actually 	found 	was 	that 	credible
testimony from the City’s witness supported the finding that
“releasing 	attorney-to-attorney 	communication 	that 	reveal
prosecutors’ 	mental 	impressions 	and 	core 	work 	product 	in
[Mellen’s criminal case] would be particularly chilling where the
party seeking disclosure (Mr. Mellen) intends to use the records
against the very attorney (and their client) involved in the
communications.” (Emphasis added.) Rather than undermining

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the court’s analysis, these findings tether its analysis to “the
specific interests of the parties and the particularized application
of the relevant public policies at issue.” See id.
¶21 	Furthermore, 	ULC’s 	argument 	fails 	to 	recognize 	that
under Utah Code section 63G-2-406(1), the court may order
protected records released only “if the person or party seeking
disclosure of the record has established, by a preponderance of
the evidence, that the public interest favoring access is equal to
or greater than the interest favoring restriction of access.” Based
on evidence ULC presented at trial, including the affidavits of
Mellen and his mother and the newspaper article that was
initiated by Mellen’s counsel, the court determined that the
public 	interest 	ULC 	advanced 	was 	“weak.” 	The 	court 	also
observed that ULC had not “identified any particularized interest
applicable to this case that would not be present any other time a
criminal defendant who is dissatisfied with his prosecution seeks
to unearth evidence of ill-intent by scouring the prosecutor’s
e-mails.”3 (Emphasis added.) Under GRAMA, the district court
3. ULC also argues that the district court erred by considering as
part of its analysis of the parties’ interests the “personal or
private benefit” Mellen might gain if the records were disclosed.
We disagree with ULC’s characterization of the district court’s
analysis. The district court did not conclude that ULC was not
entitled to disclosure of the records because Mellen’s civil action
might 	benefit 	from 	their 	release. 	Rather, 	the 	district 	court
determined that the fact that Mellen and ULC were threatening
“litigation 	over 	the 	very 	substance 	of 	the 	subject 	records”
undermined ULC’s contention that there was a public interest in
disclosure beyond the general interest of “any . . . criminal
defendant who is dissatisfied with his prosecution.” Ultimately,
it was ULC’s failure “to meet its burden to demonstrate that the
public’s interest in disclosure is at least equal to [the City’s]
interest in restricting access,” not any prospective benefit to
(continued…)

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was not required to decide whether the City had shown an
interest equal to or greater than the interest put forward by ULC
in order to conclude that ULC was not entitled to disclosure of
the records. Instead, once it determined that the records were
properly classified as protected—a determination that ULC does
not challenge—the court was required to determine whether
ULC had shown, by a preponderance of the evidence, that its
stated public interest in access was equal to or greater than the
City’s 	interest 	in 	nondisclosure. 	See 	Utah 	Code 	Ann.
§ 63G-2-406(1) (LexisNexis 2016). The district court found that
ULC had failed to make this showing. Based on the particular
interests put forward by both parties and the record before us,
we cannot say that the court exceeded its discretion in doing so.
CONCLUSION
¶22 	The district court did not exceed its discretion when it
balanced the specific interests of ULC and the City for and
against disclosure of the protected records and determined that
ULC had not shown by a preponderance of the evidence that its
interest in disclosure outweighed the City’s interest in protecting
attorney-client 	communications 	and 	attorney 	work 	product.
Accordingly, we affirm.
(…continued)
Mellen, that led the court to conclude the records should not be
disclosed.