SUWA v. AGRC

2008 UT 88
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Southern Utah Wilderness 	No. 20060813
Alliance, a Utah nonprofit
corporation; and the
Wilderness Society, a District
of Columbia nonprofit
corporation,
Plaintiffs and Appellants,
v.
The Automated Geographic
Reference Center, within the
Division of Information
Technology; and the Utah State 	F I L E D
Records Committee,
Defendants and Appellees. 	December 23, 2008
---
Third District, Salt Lake
The Honorable Tyrone E. Medley
No. 050909118
Attorneys: 	Joro Walker, David H. Becker, Salt Lake City,
for plaintiffs
Mark L. Shurtleff, Att’y Gen., Roger R. Fairbanks,
Bradley C. Johnson, David W. Geary, Asst. Att’ys
Gen., Salt Lake City, for defendants
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 	The Southern Utah Wilderness Alliance (SUWA) appeals
the district court’s order affirming the State Records
Committee’s denial of records sought by SUWA from The Automated
Geographic Reference Center (AGRC) pursuant to the Government
Records Access and Management Act (GRAMA). 	The district court
denied summary judgment to SUWA and granted summary judgment to
the AGRC. 	We reverse.

1 The AGRC was previously housed in the Division of
Information Technology Services, as indicated in the caption of
this case. 	See Utah Code Ann. §§ 63A-6-201 to -202 (2004). 	In
2005, the Utah Technology Government Act reorganized the
executive branch’s technology services and reassigned the AGRC to
the new Division of Integrated Technology. 	See 2005 Utah Laws
1136.
2 “‘Geographic information system’ or ‘GIS’ means a computer
driven data integration and map production system that
interrelates disparate layers of data to specific geographic
locations.” 	Utah Code Ann. § 63F-1-502 (2008).
3 In 2005, the legislature renumbered this provision from
63A-6-202 to 63F-1-506, but made no substantive changes to
sections relevant to this opinion; therefore, we refer to the
renumbered citation throughout this opinion. 	See 2005 Utah Laws
1167.
No. 20060813 	2
BACKGROUND
¶2 	The legislature created the AGRC, part of the Division
of Integrated Technology (the Division), 1 to provide geographic
information system services (GIS) 2 to state agencies, the federal
government, local political subdivisions, and private persons
under the rules and policies established by the Division. 	Utah
Code Ann. § 63F-1-506 (2008). 3 	Section 63F-1-506(2)(c) also
requires the AGRC to manage the State Geographic Information
Database (the SGID). 	Id.
¶3 	SUWA seeks records from the AGRC relating to rights-of-
way, the ownership of which the State and Emery County (the
County) claim pursuant to the now repealed federal Revised
Statute 2477 (R.S. 2477). 	R.S. 2477 granted rights-of-way for
“construction of highways over public lands, not reserved for
public uses.” 	Mining Act of 1866, ch. 262, § 8, 14 Stat. 251,
253 (1866), repealed by Federal Lands Policy Management Act of
1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743 (codified as
amended at 43 U.S.C. §§ 1761-71). 	As this court explained in
Lindsay Land & Live Stock Co. v. Churnos, 285 P. 646 (Utah 1929),
with R.S. 2477
the [federal] government consented that any
of its lands not reserved for a public
purpose might be taken and used for public
roads. 	The statute was a standing offer for
a free right of way over the public domain,
and as soon as it was accepted in an
appropriate manner by the agents of the

4 The State and counties jointly own all R.S. 2477 rights-
of-way within the state. 	Utah Code Ann. § 72-5-103(2)(b) (2001).
5 Since the initiation of this case, the legislature has
amended the Rights-of-Way Across Federal Lands Act. 	2005 Utah
Laws 676, 1171. 	However, no substantive changes were made to the
provisions relevant to this case; therefore, we cite the most
recent codification of the Act.
3 	No. 20060813
public, or the public itself, a highway was
established.
Id. at 648 (quoting Streeter v. Stalnaker, 85 N.W. 47, 48 (Neb.
1901)). 	Then, in 1976, the federal government shifted its land
use policy to favor federal retention of public lands rather than
development and private ownership of such lands. 	S. Utah
Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740-41
(10th Cir. 2005). 	That year Congress repealed R.S. 2477 with the
Federal Lands Policy Management Act, but preserved rights-of-way
established before October 21, 1976. 	See Federal Lands Policy
Management Act of 1976, Pub. L. No. 94-579, § 706(a), 90 Stat.
2743 (codified as amended at 43 U.S.C. §§ 1761-71). 	Today, the
identification of routes that are valid R.S. 2477 rights-of-way,
established prior to October 1976, is an ongoing controversy.
¶4 	The State of Utah and many of its local municipalities 4
have been at the heart of this controversy because a high
percentage of public land in Utah is owned by the federal
government. 	Accordingly, the State and counties have alleged
numerous rights-of-way that run through undeveloped federal lands
that might otherwise qualify for wilderness designation, across
now privately held lands, or within federal parks or forests
created after the rights-of-way were allegedly established.
¶5 	To protect alleged R.S. 2477 rights-of-way, the Utah
Legislature enacted several pieces of legislation. 	First, in
1978 the legislature passed legislation that requires each county
to prepare and file maps with the Utah Department of
Transportation identifying “roads within its boundaries which
were in existence as of October 21, 1976.” 	1978 Utah Laws 27
(codified at Utah Code Ann. § 72-3-105(5) (2001)). 	Then in 1993,
the Utah Legislature passed the Rights-of-Way Across Federal
Lands Act. H.B. 6, 50th Leg. 2d Special Sess., 1994 Utah Laws 34,
(codified as amended at Utah Code Ann. §§ 72-5-301 to -307 (2001
& Supp. 2008)) 5. 	The Act codified existing law regarding R.S.
2477 rights-of-way and also included provisions addressing
mapping and record gathering. 	Id. 	Particularly, the Act
required the AGRC to “create and maintain a record of R.S. 2477

No. 20060813 	4
rights-of-way on the Geographic Information Database.” 	Utah Code
Ann. § 72-5-304(3)(a). 	Finally, in 2003, the Rights-of-Way
Across Federal Lands Act was amended to indicate that acceptance
of an R.S. 2477 right-of-way vests title in the State and
municipal body, and further amended the Act’s definitions. 	2003
Utah Laws 1368 (codified at Utah Code Ann. § 72-5-308 to -310
(Supp. 2008)).
¶6 	In addition to the legislative efforts to preserve R.S.
2477 rights-of-way, the State and several counties have been
involved in litigation regarding alleged rights-of-way. 	The
State and Garfield County have been involved in suits with both
the federal government and environmental groups regarding the
scope of an R.S. 2477 right-of-way on the Burr Trail. 	See Sierra
Club v. Lujan, 949 F.2d 362 (10th Cir. 1991); Sierra Club v.
Hodel, 848 F.2d 1068 (10th Cir. 1988), overruled on other grounds
by Vill. of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970,
973 (10th Cir. 1992) (en banc). 	On June 14, 2000, the State of
Utah, on behalf of itself and its counties, notified the U.S.
Department of the Interior, via a Notice of Intention to File
Suit (Notice of Intent), that it would be filing a quiet title
action regarding the ownership and scope of routes located
throughout Utah, which it claimed the State and counties acquired
pursuant to R.S. 2477. 	On August 31, 2004, the State and Emery
County filed another Notice of Intent indicating that they
intended to sue to claim ownership of ten rights-of-way in Emery
County. 	The State and County filed an amended Notice of Intent
on November 3, 2004.
SUWA’s GRAMA Record Request
¶7 	In October of 2004, SUWA sent a letter to the Governor
and the attorney general’s office, pursuant to GRAMA, requesting
“all records” concerning certain routes over public lands in
Emery County that the State and County claim as R.S. 2477 rights-
of-way. 	In particular, the request sought photographs, GIS
Arc/Info coverages or shapefiles, email and telephone
communications, affidavits, declarations, maintenance and funding
records, and notes relating to the routes referenced in the State
of Utah’s 	Notice of Intent filed with the U.S. Department of the
Interior in 2000. 	The attorney general’s office released some
documents, such as maintenance agreements, but withheld most of
the requested records, arguing that under GRAMA the records were
protected from disclosure.
¶8 	Subsequently, on December 2, 2004, SUWA submitted a
record request to the AGRC. 	This request was more specific than
the request to the Governor and Attorney General and many of the

6 Class D roads include any route that has been “established
by use or constructed and has been maintained” for public use by
four-wheel vehicles, but are not state highways, county roads, or
city streets. Utah Code Ann. § 72-3-105.
5 	No. 20060813
records related to information contained in the SGID.
Specifically, SUWA requested the following documents:
1. 	Any and all maps and GIS data (or other
electronic data) depicting Class D roads 6 in
Emery County which were in existence as of
October 21, 1976. . . .
2. 	Any and all maps and GIS data (or other
electronic data) depicting Class D roads in
Emery County which were established or
constructed after October 21, 1976. . . .
3. 	Any and all maps, GIS data (or other
electronic data) and/or information contained
in or by the [SGID] depicting, in any way,
“R.S. 2477 rights-of-way” in Emery
County. . . .
4. 	Any and all records or information, dated
prior to June 14, 2000, including
“cartographic, topographic, photographic,
historical, and other data” available to the
[AGRC] and/or contained in or maintained by
the [SGID] and/or the [AGRC] relating to, in
any way, “R.S. 2477 rights-of-way” in Emery
County. . . .
5. 	Any and all records or information, dated
on or after June 14, 2000 but before August
31, 2004, including “cartographic,
topographic, photographic, historical, and
other data” available to the [AGRC] and/or
contained in or maintained by the [SGID]
and/or the [AGRC] relating to, in any way,
“R.S. 2477 rights-of-way” in Emery
County. . . .
6. 	Any and all records or information, dated
prior to June 14, 2000 provided to the [AGRC]
by any agencies and/or political subdivisions
of the state relating in any way to “R.S.
2477 rights-of-way” in Emery County.
7. 	Any and all records or information, dated
on or after June 14, 2000, provided to the
[AGRC] by any agencies and/or political
subdivisions of the state relating in any way
to “R.S. 2477 rights-of-way” in Emery County.

No. 20060813 	6
8. 	Any photographs, including aerial or on-
the-ground photographs, or any digital or
electronic photographs or similar media,
taken prior to, or depicting conditions prior
to June 14, 2000, of or depicting the . . .
routes in Emery County identified by the
State of Utah in its notice of intent to sue
of August 31, 2004. . . .
9. 	The current plats and specific
descriptions of the county roads in Emery
County and any electronic or GIS data
relating in any way to these plats and
descriptions. . . .
10. 	Any oral histories or similar historical
accounts, prepared prior to June 14, 2000,
relating in any way to the [alleged] routes
in Emery County. . . .
11. 	Any and all correspondences, including
emails, and any records relating to
correspondences, including emails and
telephone calls with and from the United
States Department of Interior and any of its
subdivisions, . . . related in any way to
roads, including Class A-D roads, and R.S.
2477 rights-of-way in Emery County . . . .
(footnote added).
The AGRC’s Denial of SUWA’s Request
¶9 	On December 31, 2004, the AGRC responded to SUWA with a
denial of all requests. 	First, the AGRC indicated that it did
not have records responsive to SUWA’s request for records of
Class D roads existing in Emery County prior to 1976. 	The AGRC
also indicated that it did not have records responsive to SUWA’s
request for plat descriptions of county roads in Emery County, or
oral histories or correspondence and communication with the
federal government relating to the routes named in the 2004
Notice of Intent. 	The AGRC also explained that it could not copy
the maps requested of Class D roads existing after 1976, but that
such records could be obtained from the Department of
Transportation. 	In response to SUWA’s request for GIS
information, AGRC records, and SGID data, the AGRC provided the
following responses.
(1) SUWA’s request to the AGRC unreasonably
duplicated SUWA’s request to the Governor and
Attorney General.

7 	No. 20060813
(2) The SGID does not isolate rights-of-way
in Emery County, except for the ten roads
identified in the 2004 amended Notice of
Intent; and, these records are protected as
“not public” and as “drafts.”
(3) The requested records were prepared in
anticipation of litigation and therefore are
protected as work product and privileged
communications.
(4) Release of requested records could
interfere with the state and counties’
investigation and enforcement of its R.S.
2477 rights.
¶10 	In addition, the AGRC indicated that it had been
involved in negotiations with the federal government regarding
the quiet title action described in its Notice of Intent. 	It
also notified SUWA that a state court in a case where similar
records were requested had found that the records were “private,
controlled, or protected, information.” 	Finally, the AGRC noted
in its response that it maintains a “public” SGID, which does not
designate rights-of-way as R.S. 2477 rights-of-way, but is
available to the public through the AGRC’s website.
PROCEDURAL HISTORY
¶11 	Following the denial by the AGRC, SUWA appealed to
Dennis Goreham, the AGRC manager. 	Mr. Goreham did not respond;
therefore, SUWA appealed the AGRC’s denial to the State Records
Committee. 	The State Records Committee conducted a hearing and
denied SUWA’s appeal holding that the AGRC properly categorized
the documents as private and protected because they were work
product prepared in anticipation of litigation. 	SUWA then filed
a petition seeking judicial review pursuant to Utah Code
section 63G-2-404 (2008). 	Following a hearing on cross-motions
for summary judgment, the district court denied SUWA’s motion and
granted the AGRC’s motion for summary judgment. 	Specifically,
the district court found that the statutes creating the AGRC and
the GIS database are “silent as to the access to the RS2477
database.” 	Thus, looking to the legislative history, the court
found that “the database for the RS2477 roads was in fact
established solely for litigation support, or litigation
purposes.” 	As a result, the district court held that the
requested records were protected as work product and as attorney-
client privileged communications under Utah Code sections 63G-2-
305(16) to (18). 	Therefore, the district court denied SUWA’s

7 This case was originally accepted by the Utah Supreme
Court. 	However, pursuant to Utah Code section 78A-4-103(2)(a),
the Utah Court of Appeals had proper jurisdiction. 	To correct
this error, the supreme court transferred the case to the court
of appeals, which then certified it to the Utah Supreme Court,
pursuant to 78A-4-103(3).
No. 20060813 	8
motion and granted the AGRC’s motion for summary judgment. 	SUWA
brought this appeal. 	We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(b). 7
STANDARD OF REVIEW
¶12 	In reviewing a district court’s grant of summary
judgment, we afford no deference to the lower court’s legal
conclusions and review them for correctness. 	Schaerrer v.
Stewart’s Plaza Pharmacy, Inc., 2003 UT 43, ¶ 14, 79 P.3d 922;
Blackner v. State, 2002 UT 44, ¶ 8, 48 P.3d 949. 	Granting
summary judgment is appropriate only in the absence of any
genuine issue of material fact and where the moving party is
entitled to judgment as a matter of law. 	Utah R. Civ. P. 56(c);
Crestwood Cove Apartments Bus. Trust v. Turner, 2007 UT 48, ¶ 10,
164 P.3d 1247. 	Thus, in reviewing a district court’s grant of
summary judgment, we review the facts and all reasonable
inferences in the light most favorable to the nonmoving party.
Sur. Underwriters v. E & C Trucking, Inc., 2000 UT 71, ¶ 15, 10
P.3d 338.
¶13 	Although the AGRC argues in its brief that the district
court exercised discretionary powers in making its decision,
requiring us to use an abuse of discretion standard, we conclude
that the district court’s ruling was in fact premised on its
interpretations of the meaning and applicability of the
provisions of GRAMA. 	Because the interpretation of statutes is a
question of law, we review the district court’s conclusions for
correctness. 	Rushton v. Salt Lake County, 1999 UT 36, ¶ 17, 977
P.2d 1201.
ANALYSIS
¶14 	The arguments presented to this court greatly reflect
those raised below. 	SUWA argues that the district court erred
when it held that the requested records were exempt from
disclosure because they were prepared solely in anticipation of
litigation. 	Instead, SUWA argues, the items requested are public
records and should be disclosed because they do not fall under
any of the exemptions provided for in GRAMA. 	Further, SUWA
argues that the public’s interest in the records’ disclosure

8 In its original response to SUWA’s request, the AGRC
indicated that disclosure of the requested records could
interfere with the State’s investigations relating to proceedings
in which it seeks to enforce its R.S. 2477 rights. 	The AGRC also
mentioned that it had engaged in settlement negotiations with the
federal government. 	However, these arguments were not addressed
by the State Records Committee or district court’s orders and
were not raised by the AGRC in this appeal. 	Therefore, these
arguments are not addressed by this court.
9 	No. 20060813
outweighs any interest favoring nondisclosure. 	In contrast, the
AGRC argues that the district court correctly held that the AGRC
need not disclose the requested records. 	First, the AGRC argues
that the Rights-of-Way Across Federal Lands Act’s requirement to
collect R.S. 2477 data does not create a public record under the
definitions of GRAMA. 	Second, the AGRC argues that such records,
if public, were created in anticipation of litigation and thus
are protected as work product and privileged attorney-client
communications. 	Third, according to the AGRC, SUWA’s request to
the AGRC unreasonably duplicated its request to the Governor and
attorney general’s office. 	Finally, the AGRC argues that the
requested records need not be disclosed under GRAMA because they
are drafts. 8
¶15 	As discussed below, we hold that the district court
erred by not requiring disclosure of the requested records.
First, the statutes requiring the records’ creation do not
categorize them as nonpublic; therefore, the records are public
and governed by GRAMA. 	Second, the records do not satisfy any of
the criteria for exemption under GRAMA, including the exemptions
for records prepared in anticipation of litigation such as work-
product and privileged communications, draft documents, or
unreasonable duplication. 	We address each point separately
below. 	Because we hold that the AGRC must disclose the requested
records, we decline to engage in an inquiry as to whether the
public’s interest in disclosure surpasses the AGRC’s interest in
nondisclosure.
I. 	THE REQUESTED RECORDS ARE PUBLIC
¶16 	The AGRC begins its argument by stating that the
records it maintains are not public under GRAMA because a plain
reading of Utah Code section 72-5-304(3) does not so characterize
them. 	However, the question is not whether the records
maintained by the AGRC are public, because they presumptively
are, but whether they remain public in the face of a conflicting
state statute.

No. 20060813 	10
¶17 	Under GRAMA “[a] record is public unless otherwise
expressly provided by statute.” 	Utah Code Ann. § 63G-2-201(2)
(2008). 	Further, GRAMA provides that it governs disclosure of
government records, unless another statute’s categorization of a
record or limitations on disclosure of the record directly
conflict with GRAMA. 	Utah Code Ann. § 63G-2-201(6). 	So “[w]hile
the other statute’s ‘specific provisions’ will control in the
event of an irreconcilable conflict, GRAMA’s provisions will
still apply so long as they are ‘not inconsistent with the
[other] statute.’” 	Utah Dep’t of Pub. Safety v. Robot Aided Mfg.
Ctr., Inc., 2005 UT App 199, ¶ 11, 113 P.3d 1014 (alteration in
original) (quoting Utah Code Ann. § 63-2-201(6)(b)). 	In this
case, we examine two statutes for any express categorization of
the requested records as nonpublic or other requirements for or
limitations on disclosure that directly conflict with GRAMA. 	We
first address section 63F-1-506, which created the AGRC; then we
address section 72-5-304(3), which specifically mandates the
creation and maintenance of records related to R.S. 2477 rights-
of-way on the SGID.
¶18 	In construing statutes, this court looks to the
statute’s plain language to “discern the legislative intent,”
Gohler v. Wood, 919 P.2d 561, 562-63 (Utah 1996), by giving the
words of the statute their “plain, natural, ordinary, and
commonly understood meaning.” 	State v. Navaro, 26 P.2d 955, 956
(Utah 1933). 	Only where such a reading renders the statute
ambiguous will we look beyond its plain language. 	See Gohler,
919 P.2d at 563; see also World Peace Movement of Am. v.
Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994).
¶19 	First, section 63F-1-506(2) requires the AGRC to
“provide geographic information system services to state agencies
. . . , [the] federal government, local political subdivisions,
and private persons” pursuant to the rules and policies
established by the Division of Integrated Technology; manage the
SGID; and establish a standard format, lineage, and other
requirements for the database. 	Utah Code Ann. § 63F-1-506(2).
This language does not purport to restrict any information
maintained by the AGRC, but rather mandates that the AGRC provide
its information to both government agencies and private persons.
This provision does not expressly classify the records as
nonpublic and does not conflict with GRAMA provisions and,
therefore, does not bar GRAMA’s application.
¶20 	Next, we turn to Utah Code section 72-5-304. 	This
section requires the AGRC to “create and maintain a record of
R.S. 2477 rights-of-ways on the Geographic Information Database,”
that “shall be based on information maintained by the Department

11 	No. 20060813
of Transportation and . . . other data available to or maintained
by [the AGRC],” as well as information regarding R.S. 2477
rights-of-way, provided by agencies and political subdivisions of
the state when such information is available. 	Utah Code Ann.
§ 72-5-304(3) (Supp. 2008). 	Again, the plain language of this
provision does not purport to restrict access to any information
maintained by the AGRC related to R.S. 2477 rights-of-way, nor
does it conflict with the provisions of GRAMA.
¶21 	Hence, we conclude that neither of these statutes
contain any language designating records maintained by the AGRC
as nonpublic or restricting access to them. 	Therefore, GRAMA’s
presumption that the government records are public remains
intact, and GRAMA’s provisions govern their disclosure. 	Based on
this determination, we move to an analysis of the exemptions
claimed by the AGRC under GRAMA to determine whether the AGRC may
restrict disclosure of the public records.
II. 	THE REQUESTED RECORDS DO NOT MEET GRAMA’S CRITERIA
FOR EXEMPTION FROM DISCLOSURE
¶22 	The AGRC has argued that the records sought by SUWA are
protected under numerous exemptions from the disclosure
requirements contained in GRAMA. 	Specifically, the AGRC claims
that the records are exempt because (A) they are work product
created and maintained “solely in anticipation of litigation” and
reflect mental impressions and legal theories and therefore are
protected under section 63G-2-305(16) and (17); (B) they were
created to support the Attorney General’s legal representation of
the State and the County, and therefore are protected as
privileged, attorney-client communications; (C) they are drafts
within the meaning of section 63G-2-305(22); and (D) SUWA’s
request for them was an unreasonable duplication of its earlier
request to the attorney general’s office. 	We treat each of these
arguments in turn.
A. 	The Records Maintained by the AGRC Pursuant to
Section 72-5-304(3) Are Not Work Product; Therefore, They Are
Not Exempt Under Section 63G-2-305(16) and (17) of GRAMA
¶23 	The protections provided by section 63G-2-305(16) and
(17) are nearly identical to the protection provided by both the
Federal and Utah Rules of Civil Procedure rule 26(b)(3), widely
referred to as the work-product doctrine. 	See generally Gold
Standard, Inc. v. Am. Barrick Res. Corp., 805 P.2d 164, 169-70
(Utah 1990) (applying Fed. R. Civ. P. 26(b)(3) and setting forth
a three-part test for work product: “1) documents and tangible
things otherwise discoverable, 2) prepared in anticipation of

No. 20060813 	12
litigation or for trial, 3) by or for another party or by or for
that party’s representative”) [hereinafter Gold Standard I].
Therefore, in interpreting GRAMA’s work product protections, we
are informed by the case law interpreting the state and federal
procedural protections for work product.
¶24 	The work-product doctrine can be divided into two
sections. The Third Circuit explained it this way:
Fed. R. Civ. P. 26(b)(3) establishes two
tiers of protection: first, work prepared in
anticipation of litigation by an attorney or
his agent is discoverable only upon a showing
of need and hardship; second, "core" or
"opinion" work product that encompasses the
mental impressions, conclusions, opinion, or
legal theories of an attorney or other
representative of a party concerning the
litigation is generally afforded near
absolute protection from discovery. 	Thus,
core or opinion work product receives greater
protection than ordinary work product and is
discoverable only upon a showing of rare and
exceptional circumstances.
In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003)
(citations and internal quotation marks omitted). 	Similarly,
GRAMA incorporates the two-tier approach by protecting government
records containing the first tier of work product with section
63G-2-305(16) and government records containing the second tier
of work product with section 63G-2-305(17). 	The AGRC argues that
the requested records are protected under both tiers;
accordingly, we address each argument in turn.
1. 	The requested records were not prepared in anticipation of
litigation
¶25 	Utah Code section 63G-2-305(16) protects “records
prepared by or on behalf of a governmental agency solely in
anticipation of litigation that are not available under the rules
of discovery.” 	Utah Code Ann. § 63G-2-305(16) (2008). 	Central
to our inquiry in this case is whether the requested records were
prepared in anticipation of litigation--as required by both Utah
Code section 63G-2-305(16) and rule 26(b)(3). 	This court has
long held that for a document to be properly characterized as
“prepared in anticipation of litigation” it must have been
prepared primarily for use in pending or imminent litigation.
See generally Gold Standard I, 805 P.2d at 170 (stating that

9 In reaching its decision, the district court reviewed
affidavits submitted by Mr. Goreham, the manager of the AGRC,
detailing how the AGRC provides litigation support to the
attorney general’s office. 	Because we decided the question of
disclosure under legal grounds, we need not undertake an analysis
of Goreham’s affidavit.
13 	No. 20060813
inquiry should focus “on the primary motivating purpose behind
the creation of the document”) (internal quotation msrks
omitted). That is, protection for work product extends only to
“‘material that would not have been generated but for the
pendency or imminence of litigation.’” 	Madsen v. United
Television, Inc., 801 P.2d 912, 917 (Utah 1990) (quoting Kelly v.
City of San Jose, 114 F.R.D. 653, 659 (N.D. Cal. 1987)). 	The
GRAMA exception uses language arguably suggesting an even higher
standard, requiring that the record be prepared “solely” for
litigation use. 	In any event, this requirement excludes all
documentation produced in the ordinary course of business. 	See
Fed. R. Civ. P. 26(b) advisory committee’s note (“Materials
assembled in the ordinary course of business, or pursuant to
public requirements unrelated to litigation, or for other
nonlitigation purposes are not under the qualified immunity
provided by this subdivision.”). 	A document is prepared in the
ordinary course of business when it is created pursuant to
routine procedures or public requirements unrelated to
litigation. 	See Soter v. Cowles Publ’g Co., 130 P.3d 840, 846
(Wash. Ct. App. 2006) (“The work product doctrine does not shield
records that a party would have generated pursuant to ‘ordinary
course of business’ administrative procedures even without the
prospect of litigation.”). 	Further, “[a]cts performed by a
public employee in the performance of his official[] duties are
not ‘prepared in anticipation of litigation or for trial’ merely
by virtue of the fact that they are likely to be the subject of
later litigation”; instead they are performed in the ordinary
course of business. 	Indiana Bd. of Pub. Welfare v. Tioga Pines
Living Ctr., 592 N.E.2d 1274, 1277 (Ind. Ct. App. 1992) (citing
Grossman v. Schwarz, 125 F.R.D. 376, 388 (S.D.N.Y. 1989)).
¶26 	The AGRC argues that the records requested by SUWA were
created in anticipation of litigation, if not solely for
litigation, because the AGRC assisted the attorney general’s
office in compiling data regarding potential R.S. 2477 rights-of-
way. 	However, the AGRC’s argument cannot prevail in view of the
fact that the records in question are precisely those the statute
requires it to create and maintain. 	See Utah Code Ann. § 72-5-
304(3) (Supp. 2008). 9 	In this case, absent any litigation, the
AGRC’s duties regarding the SGID would be the same; those duties
exist entirely independent of such litigation. 	The AGRC’s

No. 20060813 	14
records are created in the ordinary course of its business
pursuant to its statutory mandates. 	Their mere use in litigation
does not render them exempt under GRAMA.
¶27 	The AGRC urges us to examine the legislative history of
section 72-5-304(3), arguing that the intent of the statute was
to create R.S. 2477-related records solely for the purpose of
supporting litigation against the federal government. 	A review
of the plain language of the statute uncovers no reference
whatsoever to litigation or to enforcement of rights associated
with the subject of R.S. 2477. 	Thus, we would not ordinarily
consider arguments about legislative history. 	In this instance,
however, the AGRC urges that we must consider the overall
statutory scheme, in which the R.S. 2477 database was separately
added on to the AGRC’s other record-compilation duties, in the
context of legislative concern about these particular rights.
The AGRC argues that the legislature established the R.S. 2477
database solely for the support of anticipated litigation. 	As
noted, there is nothing in the language of any of the relevant
statutes suggesting such intent, and our review of the
legislative context and history, set forth extensively in the
briefs of both parties, does not persuade us that it can or
should be inferred. 	Indeed, as SUWA argues in its brief, the
legislative history of section 72-5-304 reinforces the plain
language of the statute: 	it directs the AGRC to maintain R.S.
2477 records for the benefit of multiple users, for purposes
related to relieving counties of record-keeping burdens,
supporting congressional lobbying efforts, and preparing for
state participation in impending federal rulemaking, and not
solely, or even mainly, for anticipated litigation. 	We also
note, and the AGRC acknowledges in the record, that the records
at issue will generally be discoverable in the course of
litigation, and therefore do not meet the second requirement for
exemption under section 63G-2-305(16). 	Therefore, we conclude
that the records in question do not fall under the first tier of
work-product protection and are not exempt pursuant to section
63G-2-305(16).
2. 	The requested records do not reflect mental impressions or
legal theories
¶28 	Utah Code section 63G-2-305(17) also codifies the work-
product doctrine, but focuses on the second tier of work product-
-opinion work product--by protecting “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.” 	Utah Code Ann. 63G-
2-305(17) (2008). 	Under Utah law, opinion work product, which

15 	No. 20060813
includes “mental impressions, conclusions, opinions or legal
theories of an attorney or party,” is afforded higher protection
than fact work product. 	Gold Standard I, 805 P.2d at 168.
¶29 	However, to utilize the privilege, “‘[t]he party
seeking to assert the . . . work product privilege as a bar to
discovery has the burden of establishing that [such] is
applicable.’” 	McEwen v. Digitran Sys., Inc., 155 F.R.D. 678, 683
(D. Utah 1994) (quoting Barclaysamerican Corp. v. Kane, 746 F.2d
653, 656 (10th Cir. 1984)); see also Askew v. Hardman, 884 P.2d
1258, 1261 (Utah Ct. App. 1994), rev’d on other grounds, 918 P.2d
469 (Utah 1996) (“The party asserting work-product protection
must demonstrate that the documents were created to assist in
pending or impending litigation.”). 	And, “[a] blanket assertion
that the work-product doctrine applies is insufficient to meet
that burden. 	For the work-product doctrine 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.” 	Anaya v. CBS Broad., Inc., 251 F.R.D.
645, 651 (D.N.M. 2007). 	As the AGRC argues, opinion work product
is typically evident on its face. 	Thus, “[m]aking an in camera
submission of materials that counsel contends are privileged is a
practice both long-standing and routine in cases involving claims
of privilege.” 	In re Grand Jury Subpoena, 510 F.3d 180, 184 (2d
Cir. 2007) (internal quotation marks omitted).
¶30 	In this case, the AGRC argues that disclosing the
requested records at issue--Arc/Info computer data, aerial
photographs, and digital photographs--will reveal the State and
County’s litigation strategy. 	First, the State and County argue
that requested records contain comments regarding the nature of
the various rights-of-way, and therefore should be protected as
opinion work product. 	Further, the AGRC argues that by
disclosing such documents, the State will be divulging the areas
on which the State and County are focusing their litigation
efforts and their methods of documenting the alleged rights-of-
way. 	That is, by disclosing the requested records, the State
will be divulging the focus of the attorney general’s fact
collection, as well as how it organized such data in the SGID.
To support this argument, the AGRC provided the requested records
to the court to review in camera.
¶31 	Upon review of the records produced by the AGRC, we
find no evidence of opinion work product. 	First, as indicated in
the prior argument, we find that the R.S. 2477 database was not
created in anticipation of litigation, but instead pursuant to a
legislative mandate that required its creation notwithstanding
any litigation. 	Thus, the AGRC’s argument that the order in

10 The attorney-client privilege is also codified in Utah
Rules of Evidence 504.
No. 20060813 	16
which the database is organized and the information contained
therein is opinion work product fails. 	Any litigation strategy
that it divulges is coincidental to its statutory requirements,
and frankly may reflect a failure of the AGRC to create a
comprehensive database. 	Second, upon reviewing the records
produced in camera, this court is unable to discern any comment
reflecting mental impressions, conclusions, or legal theories of
the attorney general’s office or its agents. 	The AGRC argues
that these comments are imbedded into the metadata in the
database. 	However, as the AGRC failed to provide the court with
a readable format or method by which to review the metadata, the
court cannot determine whether such comments exist and whether
they constitute opinion work product. 	Therefore, the AGRC has
failed to meet its burden to prove the existence of the opinion
work product privilege. 	Thus, we find that the requested records
are not protected as opinion work product under section 63G-3-
305(17).
B. 	Records Maintained by the AGRC Pursuant to
Utah Code Section 72-5-304(3) Are Not
Privileged Communications Between a Governmental Entity
and an Attorney, and Therefore, Are Not Exempt
Under Section 63G-2-305(18) of GRAMA
¶32 	Section 63G-2-305(18) protects “records of
communications between a governmental entity and an attorney
representing, retained, or employed by the governmental entity if
the communications would be privileged as provided in Section
78B-1-137.” 	Utah Code Ann. § 63G-2-305(18). 	By referencing
section 78B-1-137, which protects “any communication made by the
client to [his attorney] or [the attorney’s] advice given
regarding the communication in the course of his professional
employment,” 	id. § 78B-1-137(2), this section of GRAMA
incorporates the statutory and common law attorney-client
privilege protection for government records. 	See Gold Standard,
Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990)
[hereinafter Gold Standard II]. 10 	This court has held that
regardless of the statutory source, the privilege is the same.
Doe v. Maret, 1999 UT 74, ¶ 7, 984 P.2d 980, overruled in part by
Munson v. Chamberlain, 2007 UT 91, ¶¶ 20-21, 173 P.3d 848
(overruling Maret’s holding that all documents submitted to a
prelitigation panel are confidential). 	Thus, we rely on our
prior interpretations of both 78B-1-137 and rule 504 to interpret
this exemption from GRAMA.

17 	No. 20060813
¶33 	The attorney-client privilege protects information
given by a client to an attorney that is “necessary to obtain
informed legal advice--which might not have been made absent the
privilege.” 	Gold Standard II, 801 P.2d at 911 (quoting Fisher v.
United States, 425 U.S. 391, 403 (1976)); see also Jackson v.
Kennecott Copper Corp., 495 P.2d 1254, 1256 (Utah 1972). 	In
addition, the communication must be confidential. 	Utah R. Evid.
504 (“A client has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential
communications made for the purpose of facilitating the rendition
of professional legal services . . . .”). 	And, “the mere
existence of an attorney-client relationship ‘does not ipso facto
make all communications between them confidential.’” 	Gold
Standard II, 801 P.2d at 911 (quoting Anderson v. Thomas, 159
P.2d 142, 147 (Utah 1945)). 	Thus to rely on the attorney-client
privilege, a party must establish: 	(1) an attorney-client
relationship, (2) the transfer of confidential information, and
(3) the purpose of the transfer was to obtain legal advice.
¶34 	The AGRC argues that the information requested meets
all three requirements. 	First, the AGRC notes that the attorney
general’s office represents the AGRC pursuant to statute, and
therefore an attorney-client relationship exists. 	Additionally,
the AGRC suggests that it is also included in the contractual,
attorney-client relationship between the attorney general’s
office, the State, and Emery County “because all the entities are
working together in the R.S. 2477 project with the Attorney
General as their attorney.” 	Second, the AGRC argues that the
requested records are confidential communications because they
are information exchanged between the AGRC, the State, and the
County. 	The AGRC also points to the litigation agreement between
the attorney general’s office, the State, and the County, which
requires the parties to keep all records and information
regarding the R.S. 2477 project confidential. 	Finally, the AGRC
argues that the records were created and exchanged “for the
purpose of determining valid R.S. 2477 rights-of-way in Emery
County and litigating those rights-of-way.” 	The AGRC’s argument
seems to suggest that it is the agent of the attorney general’s
office and that it created the R.S. 2477 records in the SGID as a
result of the attorney general office’s representation of the
State and the County. 	That is, the AGRC seems to assert that
because the information sought by SUWA and maintained by the AGRC
relates to the rights-of-way in the County at issue in
litigation, that information becomes privileged by virtue of
coming, at some point, into the possession of the Attorney
General as attorney for the County. 	We are not persuaded.

No. 20060813 	18
¶35 	Despite the arguments urged by the AGRC, the records
requested are not protected by the attorney-client privilege.
First, the AGRC cannot rely on the relationship between the
attorney general’s office and the State and County. 	The AGRC is
not a party to the litigation agreement that creates the
contractual, attorney-client relationship. 	Thus, the information
provided to the AGRC was not subject to an attorney-client
relationship regarding R.S. 2477 litigation. 	Instead it was
provided by municipal bodies to a nonlegal state agency, without
the purpose of seeking legal advice. 	The AGRC, however, seems to
argue that it is an agent to the attorney general’s office, or
the custodian of its records, and therefore, the records were
created and stored at the direction of the attorney general’s
office as part of its representation of the State and County in
R.S. 2477 litigation. 	However, the AGRC ignores the fact that
its collection and maintenance of information provided by state
agencies or political subdivisions (including the County) is
merely the performance of its statutory duty for the benefit of
the State and federal agencies, as well as private persons. 	The
AGRC’s duties do not extend to the preparation of records for
litigation support. 	Thus, the records housed in the SGID,
including the R.S. 2477 records, are also not confidential as
they are created for the benefit of a host of agencies and the
public. 	As discussed in Section I, the records are presumptively
public, and the AGRC’s refusal to disclose them does not make
them confidential. 	Finally, the records were not created for the
purpose of providing or seeking legal advice. 	As we have
thoroughly discussed, the records are created pursuant to a
statutory requirement, not pursuant to the attorney general’s
office’s or the counties’ involvement in R.S. 2477 litigation.
True, the AGRC did provide the records to the attorney general’s
office and to the Attorney General’s clients. However,
“channeling work through a lawyer” does not by itself create a
basis for attorney client privilege. 	See Anaya v. CBS Broad.,
Inc., 251 F.R.D. at 650 (citing Burton v. R.J. Reynolds Tobacco
Co., 170 F.R.D. 481, 485 (D. Kan. 1997)).
¶36 	Thus, we reject 	AGRC’s position that the information
it received from other state agencies and political subdivisions,
pursuant to section 72-5-304(3), is privileged information.
C. 	Records Maintained by the AGRC Pursuant to
Section 72-5-304(3) Are Not
Temporary Drafts; Therefore They Are Not
Exempt Under Section 63G-2-103(22)(b)(ii) of GRAMA
¶37 	Utah Code section 63G-2-103(22)(b)(ii) provides that
the definition of a record does not include “temporary drafts or

11 This section was originally codified as Utah Code
section 63G-2-103(8)(c) (2004) at the time this claim arose. 	It
is now renumbered as Utah Code section 63G-2-8(a)(iv). 	Because
there are no substantive differences between the original version
and the renumbered version, we will refer to the renumbered
version throughout this opinion.
19 	No. 20060813
similar materials prepared for the originator’s personal use.”
Utah Code Ann. § 63G-2-103(22)(b)(ii). 	The AGRC contends that
the data sought by SUWA are temporary drafts because they were
prepared to be used in the Attorney General’s strategy
development on the issue of R.S. 2477 rights-of-way. 	We conclude
that the data maintained by the AGRC are records, not drafts.
Section 72-5-304(3) itself labels what the AGRC maintains on the
SGID records when it states that the AGRC shall create and
maintain a record of R.S. 2477 rights-of-way on the SGID. 	Thus,
the data maintained by the AGRC are records.
¶38 	Moreover, section 63G-2-103(22)(b)(ii) states that the
definition of a record does not include temporary drafts or
materials prepared for the originator’s personal use. 	It is our
opinion that the data maintained by the AGRC may not be
considered temporary drafts in the hands of a third-party user of
the information. 	In other words, any information maintained by
the AGRC is characterized as a record as defined in Utah Code
section 63-2-103(22); it cannot be considered a temporary draft
in the hands of the final user of the records because that user
is not the originator. 	Labeling the data on the SGID as
temporary drafts would be equivalent to a determination that the
entire database is comprised of only temporary drafts, given that
new data will continuously be added to the database. 	Such a
determination would clearly undermine the provisions of sections
72-5-304(3), 63F-1-506, and GRAMA, because it would result in
near total restriction of access. 	Therefore, we hold that the
data maintained by the AGRC are records, not temporary drafts.
D. 	SUWA’s GRAMA Request to the AGRC Did Not Unreasonably
Duplicate a Prior GRAMA Request Pursuant to Section 63G-2-
201(8)(a)(iv); Therefore, the AGRC Is Required to Fulfill SUWA’s
GRAMA Request
¶39 	Utah Code section 63G-2-201(8)(a)(iv) 11 provides that,
“[i]n response to a request, a governmental entity is not
required to fulfill a person’s records request if the request
unreasonably duplicates prior records requests from that person
. . . .” 	Utah Code Ann. § 63G-2-201(8)(a)(iv). 	The AGRC argues
that because an initial records request regarding R.S. 2477 roads
in Emery County was made by SUWA to the Governor and the attorney

12 Utah Code section 63G-2-103(11)(a)(i) includes executive
department agencies of the state in its definition of
governmental entities. 	Utah Code Ann. § 63G-2-103(11)(a)(i).
Section 63G-2-103(11)(b) states that governmental entity means
“every office, agency, board, bureau, committee, department . . .
of an entity listed in Subsection (11)(a).” 	Id. 	§ 63G-2-
103(11)(b).
13 This section provides the process for requesting
information and time limits for responses to such requests.
14 The Division of Integrated Technology was created within
the Department of Technology Services, an executive branch
agency. 	Utah Code Ann. § 63F-1-103.
No. 20060813 	20
general’s office, the AGRC properly denied the subsequent request
because the AGRC is an agent of the Attorney General. 	We
disagree.
¶40 	In the plain language of section 63G-2-201(8)(a)(iv), a
records request is unreasonably duplicated where a subsequent
request is made to a governmental entity after the initial
records request has been granted, denied, or has been adequately
responded to by the same governmental entity 12 pursuant to Utah
Code section 63G-2-204. 	See id. § 63G-2-204. 13
¶41 	SUWA’s records request to the AGRC was not a subsequent
request made to the same agency. 	First, the AGRC’s argument that
the AGRC and the governor’s office are one governmental entity
does not pass muster. 	The AGRC seems to suggest that all
agencies, offices, or departments within the executive branch can
be categorized as one governmental agency, and thus a request to
one is equivalent to a request to all. 	This suggestion
undermines the purpose of the statute and defies common sense.
The AGRC is a separate statutory entity, charged with the duty to
create and maintain records for the state and federal
governments, state political subdivisions, and private parties.
The Attorney General on the other hand is a legal adviser to
state officers. 	Besides, section 63G-2-201(8)(a) refers to a
governmental entity as opposed to simply the government, making
it clear that the statute never intended to treat all
governmental agencies in the state of Utah as one unit. 	Second,
the AGRC is not an agent of the Attorney General; instead, the
AGRC was created within the Division of Integrated Technology.
Id. § 63F-1-506(1). 14 	Therefore, SUWA’s records request to the
AGRC after the denial of its request to the Attorney General was
not a duplicate request to the same governmental entity.

21 	No. 20060813
¶42 	Moreover, it would be unduly restrictive for us to
conclude that a record request to a separate governmental entity
is unreasonably duplicated whenever an initial request has been
merely “responded” to pursuant to section 63G-2-204(3), since the
initial request may have been submitted to a governmental entity
that does not even possess or maintain the records sought.
¶43 	Therefore, SUWA’s request to the AGRC did not
unreasonably duplicate a prior GRAMA request, and the AGRC is not
excused from fulfilling the GRAMA request.
CONCLUSION
¶44 	We reiterate that the AGRC is primarily governed by
Utah Code section 63F-1-506, which specifically created its
duties, with additional duties relating to rights-of-way
established by Utah Code section 72-5-304(3). 	The records sought
by SUWA and maintained by the AGRC pursuant to both sections are
public records under GRAMA. 	Further, the records were not
created in anticipation of litigation, but instead pursuant to a
statutory requirement that exists notwithstanding any litigation.
Therefore, the records are not protected as work product and were
not created to seek or provide legal advice, making them
ineligible for attorney-client privilege. 	Additionally, the R.S.
2477 records created and maintained by the AGRC are records, not
drafts, as defined by statute. 	Finally, the AGRC’s request was
not unreasonably duplicated, as it was directed to a new
government entity. 	Accordingly, we reverse the district court’s
judgment and hold that SUWA must be given access to the records
it seeks.
---
¶45 	Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.