State Records Committee Decision 2015-20

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

KEVIN OPSAHL, THE HERALD JOURNAL, Petitioner, v.

UTAH STATE UNIVERSITY. Respondent.

DECISION AND ORDER

Case No. 15-20

By this appeal, Petitioner, Kevin Opsahl, a staff writer with The Herald Journal, a newspaper located in Logan, Utah, seeks access to records held by Respondent, the Utah State University.

FACTS

In an e-mail dated April 14, 2015, Mr. Opsahl made a records request to the Utah State University ("USU"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Opsahl requested “[a]ll contracts between Maverik and Utah State University related to the corporate sponsorship and renaming of Romney Stadium.” In a letter dated April 17, 2015, counsel for USU denied Mr. Opsahl’s records request, claiming that the records were protected records pursuant to a request by Maverik Inc. (“Maverik”) for business confidentiality for the terms of the contract pursuant to Utah Code §§ 63G-2-305, -309 and 53B-16-304.

Mr. Opsahl filed an appeal with USU that was received on April 21, 2015. In a letter dated April 24, 2015, David Cowley, Vice President of Business and Finance with USU denied Mr. Opsahl’s appeal based upon Maverik’s request for business confidentiality. On April 28, 2015, Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having heard oral argument and testimony, and having reviewed the materials provided for in camera review, on June 11, 2015, 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. Contracts entered into by a governmental entity are normally public to the extent that the record is not expressly exempt from disclosure pursuant to Utah Code §§ 63G-2-201(3)(b), -302, -304, or -305. Utah Code § 63G-2-301(3).

3. Commercial information or non-individual financial information obtained from a person is protected information if properly classified by a governmental entity and “disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future.” Utah Code § 63G-2-305(2).

4. Counsel for USU argued at the hearing that the entire contract between USU and Maverik was properly classified as “protected” pursuant to the requirements in Utah Code § 63G-2-305(2). Counsel claimed that USU would be impaired in their ability to enter into similar contracts in the future, and that disclosure of the terms of the contract could reasonably be expected to result in competitive injury to Maverik in the future. Counsel contended that since USU was actually receiving money from Maverik for the naming rights of the football stadium, it was not necessary for the public to know the exact terms of the contract.

5. A representative of Maverik also testified at the hearing concerning the economic harm that could result to Maverik if the terms of the contract were disclosed to the public. Counsel for Maverik submitted a letter to the Committee dated June 4, 2015, stating that Maverik entered into the contract with the understanding that the contract would remain confidential, stating that “confidentiality is important to protect our current and future negotiations for other naming rights agreements, sports and other sponsorship negotiations, as well as all other forms of media and advertising buying.”

6. Mr. Charles McCollum, Managing Editor at The Herald Journal, testified at the hearing concerning the importance of the public knowing the terms of contract regarding the naming of USU’s football stadium including the amount paid by Maverik, and the length of the contract. Joel Campbell, a member of the Board of Directors with the Utah Headliners Chapter, Society of Professional Journalists (“Board”), also testified in favor of disclosure of the terms of the contract. The Board additionally submitted a letter dated June 1, 2015, to the Committee, stating that the Board supports releasing the contracts relating to the corporate sponsorship and renaming Romney Stadium because “naming rights…should be among the most transparent items in the state budget.”

7. After reviewing the arguments submitted by the parties and interested parties, hearing oral arguments and testimony during the hearing, and reviewing the disputed records in camera, the Committee found that the records were improperly classified as protected records, and should be considered public records pursuant to Utah Code § 63G-2-301(3)(d). One of the constitutional rights recognized by the Utah Legislature with the enactment of GRAMA is the “public’s right of access to information concerning the conduct of the public’s business.” See, Utah Code § 63G-2-102(1)(a). Although the Legislature also recognizes a public policy interest in allowing government to restrict access to certain records for the public good, (Utah Code § 63G-2-102(2)), the committee did not find a prevailing interest in restricting access in this case. It is also the intent of the Legislature to “favor public access when, in the application of this act, countervailing interests are of equal weight.” Utah Code § 63G-2-102(3)(e). Contracts entered into by a governmental entity are normally public, and in order to make them non-public under Utah Code § 63G-2-305(2), the person submitting the information must have a greater interest in prohibiting access than the public’s interest in obtaining access. When considering the public’s interest in the knowing the terms and circumstances of the subject contract, the Committee finds that the public’s interest outweighs Maverik’s interest prohibiting public access. Accordingly, Utah Code § 63G-2-305(2) cannot be relied upon by USU to prohibit access to the requested records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner is GRANTED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record 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. Utah Code § 63G-2-403(15)(d)(i). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 22nd day of June, 2015.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee