Hearing officer upholds privilege, denies release of SUU legal memo in Tanner appeal

A Department of Government Records hearing officer denied Courtney Tanner's appeal seeking the final findings of an internal review of Southern Utah University's athletics department, ruling that the disputed memorandum is protected by attorney-client privilege and attorney work-product doctrine.

Tanner told the panel she sought the final findings because SUU had described the process publicly as a review of quality and student success, and she argued Utah law requires release of final opinions and audit reports. "It says the final findings of an investigation or review should be released," Tanner said, citing provisions of Utah public records law. Mr. Wilkie, counsel for SUU, argued the record was a confidential legal memorandum created solely to provide legal advice to SUU's general counsel and thus protected: "The record at issue is a confidential communication that was created exclusively for the purpose of providing legal advice to SUU's general counsel."

After arranging an in-camera review of the memorandum, the presiding officer wrote that the document appeared to have been prepared by outside counsel to evaluate potential legal exposure and to advise the university's general counsel. "I do find that the record is properly classified as protected under 3 0 5 17 for attorney work product or attorney client privilege and 3 0 5 18 attorney work product," the officer said, and denied the appeal. The officer said a written decision would follow within seven business days and noted Tanner may appeal to district court within 30 calendar days.

The decision draws a line between documents prepared to give legal advice and those created in the course of an administrative process that would mandate public release. The officer said the record contained factual determinations but that it was nonetheless prepared as a privileged legal communication. The ruling does not order disclosure of the memorandum; it upholds SUU's classification and denies Tanner's requested relief.

The hearing record contains citations and argument about several provisions of Utah public-records law referenced during oral argument. The officer's written order will provide the formal legal reasoning and the timetable for any appeal.

The parties were advised of appeal rights and the hearing was adjourned.