Kathleen Clarke Correspondence

Jimmy Tobias filed this request with the Office of the Governor - Utah of Utah.
Est. Completion March 28, 2018
Status
Awaiting Appeal

Communications

From: Jimmy Tobias

To Whom It May Concern:

Pursuant to Utah’s Government Records Access and Management Act (“GRAMA”), I hereby request the following records:

Any and all available communications and correspondence between Public Lands Policy Coordinating Office Director Kathleen Clarke and/or her staff, and any representatives, operatives, staffers or lobbyists of the Sutherland Institute, a non-profit think tank based in Salt Lake City. This request covers the time period between March 2016 and the present.

I am a reporter for Pacific Standard magazine, and the requested documents will be made available to the general public. This request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 business days, as the statute requires.

Sincerely,

Jimmy Tobias

From: Muckrock Staff

To Whom It May Concern:

Pursuant to Utah’s Government Records Access and Management Act (“GRAMA”), I hereby request the following records:

Any and all available communications and correspondence between Public Lands Policy Coordinating Office Director Kathleen Clarke and/or her staff, and any representatives, operatives, staffers or lobbyists of the Sutherland Institute, a non-profit think tank based in Salt Lake City. This request covers the time period between March 2016 and the present.

I am a reporter for Pacific Standard magazine, and the requested documents will be made available to the general public. This request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 business days, as the statute requires.

Sincerely,

Jimmy Tobias

From: Muckrock Staff

To Whom It May Concern:

Pursuant to Utah’s Government Records Access and Management Act (“GRAMA”), I hereby request the following records:

Any and all available communications and correspondence between Public Lands Policy Coordinating Office Director Kathleen Clarke and/or her staff, and any representatives, operatives, staffers or lobbyists of the Sutherland Institute, a non-profit think tank based in Salt Lake City. This request covers the time period between March 2016 and the present.

I am a reporter for Pacific Standard magazine, and the requested documents will be made available to the general public. This request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 business days, as the statute requires.

Sincerely,

Jimmy Tobias

From: Office of the Governor - Utah

Mr Tobias,

Attached is your GRAMA response.
Best,

Ashlee B.

From: Office of the Governor - Utah

From: Office of the Governor - Utah

Mr. Tobias:

Thank you for your follow-up email. I have attached the final documents
regarding your GRAMA request. Please let me know if you have any questions.
Best,
Nate

--
*Nathan R. Sumbot*
Deputy General Counsel
Governor Gary R. Herbert
State of Utah
nsumbot@utah.gov
desk: (801) 538-1046
cell: (801) 856-9279

From: Jimmy Tobias

06/06/18
To Whom It May Concern:

Pursuant to the Utah Government Records Access and Management Act (“GRAMA”), Utah Code § 63G-2-101, et seq., this letter constitutes my notice of appeal of the GRAMA denial issued by the office of governor Gary R. Herbert (“Governor’s Office”) on May 31, 2018 (“Denial”). A copy of my initial GRAMA request dated October 5, 2017 (“Request”) and a copy of the Denial is contained in the above MuckRock thread.

The Request at issue sought “[a]ny and all available communications and correspondence between Public Lands Policy Coordinating Office Director Kathleen Clarke and/or her staff, and any representatives, operatives, staffers or lobbyists of the Sutherland Institute, a non-profit think tank based in Salt Lake City. This request covers the time period between March 2016 and the present.” On March 7, 2018, the Governor’s Office sent me an initial response (“Initial Response”) indicating that, due to “extraordinary circumstances,” it needed more time to produce responsive documents. Then on April 12, 2018, the Governor’s Office produced certain redacted records responsive to my request and also provided a further response (“Response”) informing me that certain records were being excluded from the production. Among the records that were excluded from the production was an attachment to an email referred to as the “PLPCO Transition Objectives.” The Response states that the withheld records were excluded because they: “(1) constitute drafts, or (2) would reveal the Governor’s contemplated courses of action.” Finally, on May 31, 2018, the Governor’s Office issued the Denial, in which it made a final determination to deny producing certain withheld records in response to the Request. This letter respectfully requests that the Denial be reversed because the Governor’s Office has identified no valid basis for withholding the withheld records, including the PLPCO Transition Objectives.

First, the Response refers to “63G-2-302(22).” I note briefly that there is no such code section. From the context of the letter, I assume the Response intended to cite to 63G-2-305(22), which states that “[t]he following records are protected if properly classified by a governmental entity: drafts, unless otherwise classified as public.” But this section is not carte blanche to withhold any and all records simply because they are drafts. To the contrary, Utah Code section 63G-2-301(3)(j) states that “drafts” are “normally public” whenever they “are circulated to anyone other than: (i) a governmental entity; (ii) political subdivision; (iii) federal agency if the governmental entity and the federal agency are jointly responsible for implementation of a program or project that has been legislatively approved; (iv) a government-managed corporation; or (v) a contractor or private provider.” The withheld records have been transmitted to, at the very least, Matthew Anderson, a policy analyst with the Sutherland Institute. The Sutherland Institute is not one of the types of entities listed in section 301(3)(j). Because the draft has been circulated to an entity that is not specified in section 301(3)(j), it is “classified as public” and must be produced.

Next, the Response cites Utah Code 63G-2-305(29). That section states that “[t]he following records are protected if properly classified by a governmental entity: . . . records of the governor's office, including budget recommendations, legislative proposals, and policy statements, that if disclosed would reveal the governor's contemplated policies or contemplated courses of action before the governor has implemented or rejected those policies or courses of action or made them public.” (emphasis added). This section does not provide a valid basis for withholding the records. The Governor’s office has already “made [the withheld records] public,” for example by transmitting them to individuals at the Sutherland Institute. Accordingly, 63G-2-305(29) is not a valid basis for withholding the records.

Finally, the Response references 63G-2-302(2)(d). This section states that “[t]he following records are private if properly classified by a governmental entity: . . . other records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.” I understand that the Response only relied on this section for the redaction of personal email addresses, cell phone numbers, and other private information in the produced records and that the Governor’s Office is not relying on this section to justify withholding the other records, including the PLPCO Transition Objectives. There would be no basis for asserting that disclosing the PLPCO Transition Objectives would somehow result in the clearly unwarranted invasion of person privacy. The withheld records therefore should not be withheld on this basis.

In sum, neither the Response nor the Denial identifies any valid basis for withholding the withhold records, including the PLPCO Transition Objectives. Consequently, the Denial should be reversed, and the withheld records should be produced.

Sincerely,

Jimmy Tobias

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