From: The ECHO-Association m.tracy@echo-association.com
Subject: GRAMA Appeal – Legal Invoices of Salt Lake City Law Firm Cohen Kinghorn P.C. and Evidence of Payment of Public Funds
Date: June 13, 2022 at 4:05:10 PM MDT
To: mike@ecid.org, highscience@gmail.com
Cc: brent@ecid.org, dave@ecid.org, eric@ecid.org, Jeremy Cook jcook@ck.law

Emigration Improvement District Chief Administrative Officer Michael Scott Hughes,

The email correspondence attached below was received from Emigration Improvement District Certified Public Record Officer Eric Hawkes of the Simplifi Company (“Simplifi”) regarding the denial of our Third Revised Request under the Utah Government Records Access and Management Act (“GRAMA”) to inspect legal invoices prepared by Utah Attorney Jeremy R. Cook (“Utah Attorney Cook”) demanding payment of public funds administered by Simplifi believed to evidence possible misuse of public funds for private profit.

Pursuant to Utah Code Ann. sec. 63G-2-401(1)(a)(ii), we hereby appeal the de facto denial of the GRAMA request to the Chief Administrative Officer.

Please note the following for the purpose of this appeal:

Name: Mark Christopher Tracy d/b/a Emigration Canyon Home Owners Association

Mailing Address: 1160 E. Buchnel Dr., Sandy, Utah 84094

Daytime Phone Number: 929-208-6010

Relief Sought / Grounds for Appeal:

Under Utah Code Ann. sec. 63G-2-201(1)(a) “a person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours” if the record is not privileged or confidential while the intentional refusal to disclose public records may be a criminal offense under Utah Code Ann. sec. 63G-2-801(3)(a).

While records may be classified as “protected” under Utah Code Ann. sec. 63G-2-305 (17),(18) and (23), these provisions do not apply to the present request for legal billings of a private law firm providing legal services to a public entity and evidence of payment of public funds administered by Simplifi.

Firstly, billing records and evidence of payment are unquestionably government records and are not subject to attorney-client privilege as both Simplifi and Emigration Improvement District (“EID”) trustees have expressly refused to disclose if public funds are in fact being used for the private legal defense of Simplifi for the private profit of its sole shareholders Jennifer Hawkes and Eric Hawkes (collectively “Mrs. & Mr. Hawkes”) in pending state and federal proceeding. See e.g. United States v. Hodge and Zweig, 548 F. 2d 1347 (9th Cir., 1977)(privilege does not apply where legal representation was secured in furtherance of intended, or present, continuing illegality)(citing United States v. Friedman, 445 F.2d 1076, 1086 (9th Cir. 1971); Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 77 L.Ed. 993 (1933); O’Rourke v. Darbishire, [1920] A.C. 581, 604 (Eng.) (per Viscount Finlay); 8 J. Wigmore, supra, § 2298.

Second, records may be classified as protected only if prepared “in anticipation of litigation or administrative proceedings.” This provision clearly does not apply to the identity and source of past legal services. See e.g., In re Grand Jury Subpoenas, 906 F. 2d 1485 (10th Cir. 1990)(citing United States v. Hodgson, 492 F.2d 1175, 1177 (10th Cir. 1974); In re Grand Jury Subpoenas, 803 F.2d 493, 496-98 (9th Cir.1986); In re Shargel, 742 F.2d 61, 62 (2d Cir.1984); In re Grand Jury Investigation, 723 F.2d 447, 451 (6th Cir.1983); 84 A.L.R.Fed. 852, 859 (1987) whereby the identity of an attorney’s client and the source of payment for legal fees are not normally protected by the attorney-client privilege).

Next, as the requested public documents retained by Simplifi do not reveal “litigation strategy” per Utah Code Ann. sec. 63G-2-305(23), we regard the demanded pre-payment of $2,500.00 for “compilation” and “redaction” by Utah Attorney Cook as both illegitimate and unresponsive to our request.

Lastly, Mrs. and Mr. Hawkes through Utah Attorney Cook have previously requested attorney fees to be awarded to EID (and not Simplifi) and have thus waived any claim of attorney-client privilege should such attorney-client privilege exist for a third party.

We await your decision.

Kind Regards,

Mark Christopher Tracy
d/b/a Emigration Canyon Home Owners Association

From: Eric Hawkes eric@ecid.org
Date: June 10, 2022 at 4:08:33 PM MDT
To: The ECHO-Association m.tracy@echo-association.com
Subject: Re: Third Revised GRAMA Request – Legal Invoices of the Salt Lake City Law Firm Cohne Kinghorn P.C.

Mr. Tracy,

With respect to the attached GRAMA request, significant portions of the documents are classified as protected in accordance with Utah Code Ann. 63G-2-305(17), (18) or 23(b), which includes the following:

          (17)        records that are subject to the attorney client privilege; 

(18) 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

(23) records concerning a governmental entity’s strategy about: (b) imminent or pending litigation.

Accordingly, EID anticipates that it will take 10-15 hours to compile the records and redact portions of the records. The majority of the records are in the possession of EID’s legal counsel and will need to be compiled and redacted by EID’s legal counsel. Thus, in accordance with Utah Code Ann. 63G-2-203, EID anticipates that the fee to complete the request will be $2,500 to $3,500. In accordance with Utah Code Ann. 63G-2-203(8), you will need to pay a deposit of $2,500 before EID will begin to process the request.

You have the right to appeal the decision within thirty days, as provided in Section 63G-2-401, to EID Board Chair Michael Hughes at: mike@ecid.org.

—

Eric Hawkes

(p) 801.243.5741

(e) eric@ECID.org

(w) www.ECID.org