State Records Committee Appeal Decision 2010-18

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

TAB L. UNO, Petitioner, vs.

SALT LAKE CITY SCHOOL DISTRICT, Respondent.

DECISION AND ORDER

Case No. 10-18

By this appeal, Petitioner, Tab L. Uno, seeks access to records from Respondent, the Salt Lake City School District (“District”).

FACTS

On March 18, 2010, Uno made a request to the District pursuant to the Government Records Access and Management Act (“GRAMA”), for a “list of school community chairs of the schools in the [District], including their names, addresses, and telephone numbers, and e-mail addresses, if available, and the schools they represent.” On March 24, 2010, the District provided a list of the schools in the District, with a listing of the current community chairs for each school. The District did not disclose the home addresses, home telephone numbers, or personal e-mail addresses for the individuals because the District had classified them as “private” pursuant to Utah Code Ann. § 63G-2-302(1)(f).

On April 13, 2010, Uno filed an appeal of the District’s decision to Kristi Swett, Board President of the District. In his appeal, Uno claimed that since the School Community Chairs were volunteers as opposed to employees, the District could not classify their personal information as “private,” pursuant to Utah Code Ann. § 63G-2-302(1)(f).

In a letter dated May 11, 2010, Ms. Swett and District Board Vice President, Heather Bennett, denied Uno’s appeal. The letter stated that even though the community chairs were volunteers, “[w]e believe that their home addresses, home and mobile telephone numbers, and personal e-mail addresses are entitled to the same protection afforded employees and officers under GRAMA.”

Uno now appeals to the State Records Committee (“Committee”). The Committee having reviewed the evidence and arguments submitted by the parties, and having heard oral argument and testimony on September 9, 2010, issues the following Decision and Order:

STATEMENT OF REASONS FOR DECISION

1. 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, -304 and –305.

2. Utah Code Ann. § 63G-2-302(1)(f) states that “employment records concerning a current or former employee of, or applicant for employment with, a governmental entity that would disclose that individual’s home address, home telephone number…” is a private record.

3. Uno argued that since the community chairs served as unpaid volunteers for the District, they could not be considered “employees” of the District, and therefore, could not receive the protections offered in Utah Code Ann. § 63G-2-302(1)(f).

4. The District claimed that even though the community chairs were unpaid volunteers, they should be considered “employees.” The District noted that District volunteers “are treated like employees for almost all purposes except compensation,” including having criminal background checks, workers’ compensation coverage, employee indemnification, and liability protection pursuant to Utah Code Ann. § 67-20-3.

5. Utah Code Ann. § 67-20-2(3)(a) defines a "volunteer" as "any person who donates service without pay or other compensation except expenses actually and reasonably incurred as approved by the supervising agency." A “volunteer is considered a government employee” for the purposes of receiving workers’ compensation medical benefits, the operation of motor vehicles, and liability protection and indemnification normally afforded paid government employees pursuant to Utah Code Ann. § 67-20-3(1).

6. Considering the fact that a volunteer may be considered a government employee, pursuant to Utah Code Ann. § 67-20-3, it is logical to also conclude that a volunteer should also be considered an employee under Utah Code Ann. § 63G-2-302(1)(f). Otherwise, a volunteer’s private information concerning a volunteer’s home address, home telephone number, Social Security number, insurance coverage, or marital status, would illogically have less protection than a public employee under GRAMA. Accordingly, we find that the District properly classified the volunteer community chairs’ home addresses, home and mobile telephone numbers, as private records, pursuant to Utah Code Ann. § 63G-2-302(1)(f).

7. During the hearing, it was noted that personal e-mail addresses are not listed as private information under Utah Code Ann. § 63G-2-302(1)(f). However, a review of Utah Code Ann. § 63G-2-301(2)(b) shows that a business address, business e-mail address, and business telephone number, are public unless specifically excepted from disclosure pursuant to Utah Code Ann. § 63G-2-201(3)(b) and (6)(a).

8. Given the fact that GRAMA specifies that a business address, business e-mail address, and/or business telephone number should be made public in order to allow “the public to contact an employee or officer of the governmental agency,” as opposed to disclosing the employee’s home address or home phone number as a method of contact, it follows that there is also an expectation of privacy for an employee’s personal e-mail address. Therefore, the Committee finds that the District properly withheld the personal e-mail addresses of the community chairs because an e-mail address is a record “containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.” See, Utah Code Ann. §§ 63G-2-301(1) and –302(2)(d). Because of the technology advances in today’s society, a personal e-mail address should receive the same type of privacy protection afforded to a home telephone number.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Tab L. Uno is denied because the requested records were properly classified by the Salt Lake City School District as “private,” pursuant to Utah Code Ann. §§ 63G-2-302(1)(f) and –302(2)(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.

Dated this 16th day of September, 2010.

____________________________
BETSY ROSS, Chair pro-tem
State Records Committee