State Records Committee Appeal 07-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MARGARET DAYTON Appellant, vs. UTAH STATE OFFICE OF EDUCATION, Appellee.

DECISION AND ORDER

Case No. 07-16

Senator Margaret Dayton appeals the Utah State Office of Education's denial of her request, pursuant to the Utah Government Records and Management Act, for a copy of the grant application submitted by Brigham Young University for the Math Public School Partnership Grant that was awarded to BYU in 2006. Senator Dayton asserts: (1) the Application is a public document; (2) the USOE improperly classified the Application as protected and denied her GRAMA request; (3) the public's interest in knowing how public funds are spent outweighs an interest in keeping the Application secret; and (4) the Application contents are relevant to the Utah State Legislature's Education Interim Committee, which is currently studying math education. Both parties submitted material in support of their positions. On December 13, 2007, both parties appeared before the State Records Committee. Senator Dayton was represented by M. Gay Taylor, General Counsel, and Eric Weeks, Associate General Counsel, of the Office of Legislative Research and General Counsel. The USOE was represented by Kristina Kindl, Assistant Attorney General, Utah Attorney General's Office.

The State Records Committee, having reviewed the materials submitted by the parties, including the Application in camera, and having heard oral argument and testimony, now issues the following Decision and Order granting Senator Dayton's appeal.

STATEMENT OF REASONS FOR DECISION

The Government Records Access and Management Act states that "a record is public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). The USOE has not identified any statute that provides that the Application is not public.

The USOE nonetheless contends that the Application is classified properly as protected and therefore it properly refused to disclose the Application pursuant to Utah Code Ann. 63-2-304(6). The Committee, however, is not convinced that disclosing the contents of the requested application "would impair governmental procurement proceedings" or "give an unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity." Id. Section 63-2-304(6) does not otherwise restrict disclosure of a grant application after the application has been granted. Moreover, the public interest in knowing how public funds are spent outweighs the USOE interest in favoring restriction of access under Section 63-2-304(6).

Section 63-2-304(6) refers to "bids," while the procurement code refers to "bids" and "proposals." The procurement code, however, does not restrict disclosure here. See Utah Admin. Code. R. R33-3-204.1. Section 63-2-308(1)(a)(i) provides that a party who submits a record to a governmental entity may provide with the record a written claim of business confidentiality. There is no evidence of such a written claim provided with the record here.

ORDER

Accordingly, the Committee HEREBY ORDERS that the appeal of Senator Margaret Dayton vs. Utah State Office of Education is GRANTED. The Utah State Office of Education shall supply Senator Dayton with a copy of the grant application submitted by Brigham Young University for the Math Public School Partnership Grant that was awarded to BYU in 2006.

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 Utah Code Ann. 63-2-404. The court makes its decision de novo. To protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. 63-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (i) a notice of compliance with the records committee upon production of the records; or (ii) a notice of intent to appeal. If the government entity fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (a) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (b) send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies entities.

Entered this 20th day of December, 2007.

BY THE STATE RECORDS COMMITTEE

CARL ALBRECHT
Chair
State Records Committee