State Records Committee Appeal Decision 2011-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SALT LAKE TRIBUNE, Petitioner, vs.

SOUTHERN UTAH UNIVERSITY, Respondent.

DECISION AND ORDER

Case No. 11-07

By this appeal, Petitioner, the Salt Lake Tribune (“Tribune”), appeals a denial from Respondent, Southern Utah University (“SUU”), of his request for records pertaining to Roger Reid’s employment as the men’s basketball coach of SUU.

FACTS

In a letter dated March 29, 2011, Bill Oram from the Tribune, submitted a request for documents regarding Roger Reid’s employment as the men’s basketball coach at SUU. Specifically, Mr. Oram requested “[m]emorandum, letters, emails, voicemails, and text messages received or sent by University personnel…after Nov. 1, 2010 that pertain to the men’s basketball program and Reid’s continued employment as coach.” The request included “letters of support or opposition for Reid.”

In response, SUU gave the Tribune documents that included profit and loss statements, budgets, and gifts included in NCAA reports. However, SUU denied the request to release documents pertaining to Coach Reid’s employment, indicating that the documents are confidential and protected pursuant to Utah Code Ann § 65G-2-305(25).

On or about April 12, 2011, the Tribune sent a letter to SUU President Michael T. Benson appealing the partial denial of documents. In the letter, Mr. Oram argued that the disputed records were public. On April 14, 2011, SUU President Benson denied the appeal stating that records of retention decisions that could be properly discussed in a closed meeting in accordance with the Open and Public Meetings Act, may be classified as protected under the Government Records Access and Management Act (“GRAMA”). The letter further stated: “This correspondence is in the nature of personal recommendations concerning or advising my ultimate decision, and any disclosure would constitute a clearly unwarranted invasion into that process, as well as into any personal privacy Coach Reid may still have.”

Petitioner appealed to the State Records Committee (“Committee”) indicating that the requested documents “would shine great light on one of the state’s public institutions, and that any correspondence discussing the decision to retain Roger Reid as the men’s basketball coach may contain elements critical to the public interest.” The Committee, having reviewed written arguments of the parties and having heard oral argument and testimony at the hearing held May 12, 2011, now 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-2-403(11)(b) allows the Committee to disclose protected records where the “public interest favoring access outweighs the interest favoring restriction of access” after “consideration and weighing of the various interests and public policies pertaining to the classification and disclosure or nondisclosure.”

3. Records of an institution within the state system of higher education “regarding tenure evaluations, appointments, applications for admissions, retention decisions, and promotions” which could be properly discussed in a closed meeting in accordance with the Open and Public Meetings Act (Title 52, Chapter 4) may also be classified as “protected” if properly classified by a governmental entity. Utah Code Ann. § 63G-2-305(28).

4. At the hearing, representatives for the Tribune argued that the decision to retain Coach Reid was a public decision that the public had the right to examine to rule out any unfair influence. Counsel for SUU argued that the reason Utah Code Ann. § 63G-2-305(28) allows records regarding “tenure evaluations, appointments, applications for admissions, retention decisions, and promotions” to be classified as protected records is to protect the privacy of the individuals being considered and to allow the decision makers to have candor regarding employment decisions

5. After hearing the parties’ arguments, considering the evidence presented, and after an in camera review of the disputed records, the Committee finds that the records were properly classified by SUU as protected pursuant to Utah Code Ann. § 63G-2-305(28), as retention decisions concerning Coach Reid. Additionally, the Committee applied the weighing provision and determined that the public interest favoring access did not outweigh the interest favoring restriction of access.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner the Salt Lake Tribune 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 19th day of May, 2011.

BY THE STATE RECORDS COMMITTEE

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BETSY ROSS, Chairperson
State Records Committee