State Records Committee Appeal 2008-17

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVE ONYSKO, Petitioner, vs.

UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent.

DECISION AND ORDER

Case No. 08-17

By this appeal, Steve Onysko seeks access to records of the Department of Environmental Quality (“Department”), pertaining to his duties and performance during his employment with the Utah Division of Drinking Water.

FACTS

On March 31, 2008 Mr. Onysko made the following requests pursuant to the Government Records Access and Management Act (“GRAMA”) to the Department:

(1) All documentation relating to DDW Director Ken Bousfield’s research, deductions, conclusions, findings, etc. [I]n his February 15, 2008, Incident in the Division of Drinking Water Front Office memorandum, including, but not limited to witness statements, unredacted notes from communications with Linda Matulich, unredacted communications between Steve Onysko, unredacted communications between Bousfield and DEQ management and Bousfield and DHRM representatives, and communications between Linda Matulich and DDW/DEQ/DHRM.

(2) All documentation is sought relating to DDW Ken Wilde’s statements and assertions about Steve Onysko in Wilde’s October 19, 2007, 9:18 p.m. communication to DDW Director, Ken Bousfield, subject “Steve O.” including, but not limited to, Wilde’s notes and e-mails and similar documentation of communications between him and Frank Roberts, Julie Cobleigh, Nagendra Dev, Karin Taturu, Randy Taylor, and any other source cited in Wilde’s communication to Bousfield as a basis of Wilde’s allegations against Onysko. Also sought is documentation of Wilde’s statement cited in DEQ Deputy Director Sinclair’s memorandum to file, dated October 12, 2007, in which Sinclair writes that Ken Wilde also mentioned that on Steve’s last performance plan and as his supervisor, he was ready to rate him “unsatisfactory” and Ken Wilde’s supervisor had him change the rating to satisfactory. This shall include documentation of the alleged unsatisfactory performance and Bousfield’s alleged intervention.

The Department agreed to release some records after payment of a research and compilation fee, but denied Mr. Onysko’s request for certain records. Mr. Onysko appealed the Department’s denial and on June 10, 2008, a detailed six-page response was sent to Mr. Onysko from William Sinclair, Deputy Director for the Department regarding each of Mr. Onysko’s requests. In response to the release of certain records, Mr. Sinclair stated that the handwritten personal notes were not “records” as defined by GRAMA and therefore, would not be provided to Mr. Onysko. On July 9, 2008, Mr. Onysko appealed the Department’s denial to access of the hand written notes to the State Records Committee (“Committee”). Having reviewed the materials submitted by the parties and having heard oral argument and testimony on October 9, 2008, the Committee now issues the following Decision and Order.

REQUEST FOR WITNESS SUBPEONAS

In a letter dated August 25, 2008, Mr. Onysko made a request for the Committee to issue subpoenas for Kenneth Wilde, a manager with the Division of Drinking Water, and William Sinclair, Deputy Director of the Department. Subpoenas were issued based upon Mr. Onysko’s representation that his intent was to have the individuals “testify for the record about the existence or nonexistence of the documentation in question” and that their appearance was “crucial to my GRAMA appeal case.”

On October 6, 2008, the Department filed a Motion to Quash the subpoenas pursuant to Utah Admin. Code R.35-5-2(e), which states in part:

A subpoenaed witness may file a motion to quash the subpoena with the executive secretary at least three business days prior to the hearing at which the witness has been ordered to be present, and shall simultaneously transmit a copy of that motion to the parties.

The Department requested a hearing on the Motion and the request was granted pursuant to the requirements of Utah Admin. Code R.35-5-2(e).

At a hearing held on October 7, 2008, the Department presented evidence that the proposed witnesses’ testimony was not “material and necessary” for the proceeding. See, Utah Admin. Code R. 35-5-2(b). The Department also presented evidence that the burden to have the witnesses appear before the Committee was greater than the need to have them present. See, Id. Scott Whittaker, Chair for the Committee, found the arguments of the Department persuasive and granted the Department’s Motion to Quash. Decisions by the Chair denying the request for a subpoena are final and unreviewable pursuant to Utah Admin. Code R.35-5-2(f).

MOTION TO DISMISS

The Department also filed a Motion to Dismiss pursuant to Utah Code Ann § 63G-2-103(22)(b)(ix), which states that a record does not include “a daily calendar or other personal note prepared by the originator for the originator’s personal use or for the personal use of an individual for whom the originator is working.” Because of the interrelated nature of the Department’s Motion to Dismiss and the argument of Mr. Onysko that the handwritten notes were public records, the Committee determined that it was necessary to hear complete arguments from both sides prior to ruling on the Motion to Dismiss.

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. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63G-2-302, -303 and -304. Utah Code Ann. § 63G-2-103(22)(b)(ix) excludes “a daily calendar or other personal note prepared by the originator for the originator’s personal use or for the personal use of an individual for whom the originator is working” from the GRAMA definition of a “record.”

2. The Department denied Mr. Onysko’s appeal on the grounds that the records he sought are not “records” as defined by GRAMA pursuant to Utah Code Ann § 63G-2-103(22)(b)(ix) and are therefore not subject to the provisions of GRAMA.

3. The Committee, having heard argument from both parties and after having reviewed the disputed records in camera, is convinced by a preponderance of the evidence that the handwritten notes should not be considered “records” pursuant to Utah Code Ann. § 63G-2-103(22)(b)(ix). The handwritten notes appeared to have been prepared by the originators for the originators’ personal use.

4. Concerning the Department’s Motion to Dismiss, even though the disputed records were not defined as a “record” pursuant to Utah Code Ann. § 63G-2-103(22)(b)(ix), the Committee has jurisdiction to hear appeals based upon Utah Code Ann. §63G-2-402(2) which states: “Any person aggrieved by a determination of the chief administrative officer of a governmental entity under this chapter, including persons who did not participate in the governmental entity’s proceeding, may appeal the determination to the records committee as provided in § 63G-2-403.” The Committee after a hearing “shall issue a signed order either granting the petition in whole or in part or upholding the determination of the governmental entity in whole or in part.” Utah Code Ann. § 63G-2-403(11)(a). Therefore, even though the disputed records were properly classified as non-records, the Committee had the jurisdiction to hear Mr. Onysko’s appeal and determine whether the Department made a proper determination concerning the disputed records pursuant to Utah Code Ann. § 63G-2-402 and § 63G-2-403. Accordingly, the Department’s Motion to Dismiss is denied.

ORDER

THEREFORE, IT IS ORDERED THAT the determination of the Department of Environmental Quality is upheld pursuant to Utah Code Ann. § 63G-2-103(22)(b)(ix), and the appeal of Steve Onysko is denied.

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. § 63G-2-404. 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.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-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: (1) a notice of compliance with the records committee upon production of the records; or (2) 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: (1) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) 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 16th day of October 2008.

BY THE STATE RECORDS COMMITTEE

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BETSY ROSS, Chairperson pro tem
State Records Committee