State Records Committee Appeal 00-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KRISTIN M. CAPPEL, Appellant, vs.
UNIVERSITY OF UTAH, Appellee.

DECISION AND ORDER
Case No. 00-06

By this appeal, Kristin M. Cappel seeks an order compelling the University of Utah to provide numerous records in the possession of the University of Utah ("University"), specifically identified as "Document Nos. 1-11 listed under 'Document Description;' Document No. 2 listed under 'Skiing File;' and Document No. 44 listed under 'Skiing File.'"

The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony of the parties on November 1, 2000, now issues the following Decision and Order.

FINDINGS OF FACT

1. Ms. Cappel is an attorney representing Mr. Pat Miller, a former employee of the University.

2. Ms. Cappel is seeking access to three types of records: (a) e-mails and handwritten notes; (b) a self-report to the NCAA; and (c) Initial Academic Eligibility Waiver Applications.

3. The University provided many records to Ms. Cappel, but denied the request that is the subject of this appeal, asserting three grounds: (a) provision of the Initial Academic Eligibility Waiver Applications would violate the Family Educational Rights and Privacy Act ("FERPA"); (b) e-mails, handwritten notes, and the draft of the self-report to the NCAA were protected under the attorney client and/or work product privilege; and (c) the draft of the self-report to the NCAA is not a record under GRAMA.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act ("GRAMA") specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. Section 63-2-201(2) (2000). Records that are not public are designated as either "private," "protected," or "controlled." Utah Code Ann. Sections 63-2-302, -303, -304 (2000).

2. The Committee finds that the University properly denied access to those documents it claimed to be protected under the attorney-client and/or work product privileges, including all records requested with the exception of the Initial Academic Eligibility Waiver Applications. See Utah Code Ann. Sections 63-2-304(16) to -(18) (1997).

3. The Committee finds further that the Initial Eligibility Waiver Applications were properly denied by the University as their release is prohibited by another statute (FERPA). See Utah Code Ann. 63-2-201 (8)(a) (1997).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Ms. Cappel be denied in its entirety.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and by Utah Code Ann. Sections 63-2-404 and 63-2-502(7) (2000). The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

Entered this 6th day of November, 2000.

BY THE STATE RECORDS COMMITTEE

Betsy L. Ross, Chairperson
State Records Committee