State Records Committee Appeal 2009-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

THE SALT LAKE TRIBUNE Petitioner, vs.

GRANITE SCHOOL DISTRICT, ET AL., Respondents.

DECISION AND ORDER

Case No. 09-13

By this appeal, Petitioner, the Salt Lake Tribune (“Tribune”), seeks access to records of the Respondents, Granite, Jordan and Salt Lake School Districts (“Districts”), specifically dates of birth for certain District employees who may have a criminal conviction.

FACTS

On or about April 8, 2009, Kirsten Stewart of the Tribune requested from the Districts dates of birth for employees who may have criminal convictions. The records requests from the Tribune were narrowed to a list of names generated from research performed by the Tribune which could include actual District employees. Each of the Districts denied the requests citing Utah Code Ann. § 63G-2-203(2)(a) and indicating: “Personal status information such as race, religion, or disabilities are classified as protected.” Tony Semerad, Computer Assisted Reporting Editor for the Tribune, filed an appeal to the Committee on behalf of the Tribune of the Districts’ decisions. The parties have stipulated to a consolidation of the appeals.

The State Records Committee having reviewed the materials submitted by the parties, and having heard oral argument and testimony on August 13, 2009, now issues the following Decision and Order.

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. § 63-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63-2-302, -303, -304 and -305.

2. The following records are private if properly classified by a governmental entity: Records concerning a current or former employee of, or applicant for employment with a governmental entity, including personal status information such as race, religion, or disabilities, but not including records that are public under Subsection 63G-2-301(2)(b) or Subsection –301(3)(O), or private pursuant to Subsection -301(1)(b). Utah Code Ann. § 63G-2-302(2)(a).

3. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of privacy are also private. Utah Code Ann. § 63G-2-302(2)(d).

4. The Districts argued that date of birth information is private pursuant to Utah Code Ann. § 63G-2-302(2)(a), even though not expressly identified as such in the statute. The Districts further argued that the statutory language “such as” indicated legislative intent to include other status information not expressly delineated in Subsection –302(2)(a). Stewart argued that a record is public unless otherwise expressly provided by statute pursuant to Utah Code Ann. § 63G-2-201(2).

5. After hearing argument and testimony of the parties and based upon a preponderance of the evidence, the Committee is convinced that similar to race, religion or disabilities, “age” should be considered “personal status information” and therefore “private” pursuant to Utah Code Ann. §63G-2-302(2)(a). However, the Committee is further convinced that “date of birth” information may be bifurcated, separating out the month and the day of birth from the year of birth, thereby helping to mitigate the risk of identity theft and the release of “individual status” information.

6. The Districts also argued that release of birth date information would be “clearly an unwarranted invasion of privacy,” especially for those employees with no criminal history or criminal conviction. The Districts contended that release of date of birth information would potentially expose the employees to identity theft or other fraudulent abuse of their personal information.

7. After hearing argument and testimony, the Committee is convinced that the bifurcation of date of birth information will both protect district employees from potential fraud and abuse of personal information, and protect against any unwarranted invasion of an employee’s privacy. The Committee is not persuaded that the month and day of birth alone without the year of birth, is sufficient information to subject the employee to a clear unwarranted invasion of privacy. The Committee is convinced that the bifurcated information is sufficient to correlate the employees’ names with a list of individuals with criminal convictions, accomplishing the stated public interest objective of the Tribune to determine whether school employees have criminal histories. Accordingly, the Tribune should be provided access to the month and day of birth for the specified district employees and the Districts have the right to redact the birth year from the disclosed records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of the Salt Lake Tribune is affirmed in part and denied in part. The Districts are hereby ordered to, within ten (10) days, provide the Tribune access to the month and day of birth, but be allowed to redact all “year of birth” information of the district employees delineated in its records pursuant to Utah Code Ann. § 63G-2-302(2)(a) and –302(d).

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 governmental 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 Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental 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 24th day of August 2009.

BY THE STATE RECORDS COMMITTEE

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SCOTT WHITTAKER, Chairperson
State Records Committee