From: The ECHO-Association m.tracy@echo-association.com
Subject: Third Appeal Utah State Records Committee (Legal Invoices of the Salt Lake City Law Firm Cohne Kinghorn P.C.)
Date: June 28, 2022 at 11:29:31 AM MDT
To: SRCsecretary@utah.gov
Cc: Jeremy Cook jcook@ck.law, eric@ecid.org, mike@ecid.org, highscience@gmail.com, brent@ecid.org, dave@ecid.org, phtonks@agutah.gov
Rebekkah Shaw
SRC Executive Secretary
346 S. Rio Grande
Salt Lake City, UT 84101-1106
Phone: 801-531-3851
Fax: 801-531-3867
Email: SRCsecretary@utah.gov
Dear Ms. Shaw,
We hereby appeal the third “affirmed denial” of the Chief Administrative Officer of Emigration Improvement District (“EID” aka Emigration Canyon Improvement District aka ECID) Micheal Scott Hughes under Utah Code Ann. 63G-2-403 regarding our Third Revised Request to inspect all legal invoice prepared by the Salt Lake City law firm Cohne Kinghorn P.C. for payment of public funds administered by the Simplifi Company (“Simplifi”) for EID since August 1, 1998.
Please note the following for the purpose of this appeal:
Name: Mark Christopher Tracy dba Emigration Canyon Home Owners Association
Mailing Address: 1160 E. Buchnel Dr., Sandy, Utah 84094
Daytime Phone Number: 929-208-6010
Date of GRAMA Request to the EID Certified Public Records Officer: June 6, 2022 (see https://echo-association.com/?page_id=9258).
Date of GRAMA Denial: June 10, 2022 (see https://echo-association.com/?page_id=9282).
Date of GRAMA Appeal to Chief Administrative Officer: June 13, 2021 (see id).
Date of GRAMA decision of the Chief Administrative Officer: No response.
Relief Sought / Grounds for Appeal:
Disclosure of all legal invoices prepared by Utah Attorney Jeremey R. Cook (“Utah Attorney Cook“) the Salt Lake City law firm Cohne Kinghorn P.C. demanding payment of public funds administered by Simplifi on behalf of EID since August 1, 1998.
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.
Firstly, billing records and evidence of payment are unquestionably government records and are not subject to attorney-client privilege as both Simplifi and EID 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 Simplifi and its sole shareholders Emigration Canyon Deputy Major 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 government 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.
Kind Regards,
Mark Christopher Tracy
– qui tam Relator
Tel. 929-208-6010
