State Records Committee Appeal Decision 2016-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ANNIE KNOX, REPORTER FOR THE SALT LAKE TRIBUNE, Petitioner, v.

UNIVERSITY OF UTAH, et al., Respondents.

DECISION AND ORDER

Case No. 16-05

By this appeal, Petitioner, Annie Knox, Reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondents, the University of Utah, Utah State University, Weber State University, Utah Valley University, Southern Utah University, Dixie State University, Snow College, and Salt Lake Community College.

FACTS

In September, 2015, Ms. Knox made a records request to each of the Respondents pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Knox requested “student disciplinary cases of violent or sexual crime from 2005 to 2015 that reached a final disposition wherein the student was found guilty, [Ms. Knox was] seeking: The student’s name, the violation and date committed; the sanction and date issued by the university.” After some discussions between the parties, the Respondents agreed as a courtesy, to create a record without cost, and Ms. Knox agreed to reduce the time period to between 2010 and 2015.

During October 2015, Respondents provided a portion of the requested records, but declined to provide any information relating to the students' names, asserting that such information was private and protected under GRAMA as well as the Federal Family Education Rights and Privacy Act (“FERPA”). On or about October 28, 2015, Ms. Knox filed appeals to each of the Respondents, which were all denied. Ms. Knox then filed an appeal with the State Records Committee (“Committee”) on December 7, 2015. Because of the similar issues presented in the appeals, the parties agreed to consolidate the appeals into one appeal to be heard by the Committee. Accordingly, the Committee having reviewed the arguments submitted by the parties, and hearing oral argument and testimony on February 11, 2016, 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. A governmental entity may properly classify a record as “private” if the record “contain[s] data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.” See Utah Code §63G-2-302(2)(d).

3. Counsel for Respondents argued that denial of the request for records containing the student’s names was proper under GRAMA because disclosure would be a "clearly unwarranted invasion of personal privacy." Counsel further argued that releasing the names would have a deep chilling effect on the reporting of crimes by alleged victims and potentially damaging the due process rights for the accused perpetrators. This argument was supplemented by sworn testimony provided by representatives from the University of Utah, Utah State University, and Utah Valley University.

4. The Committee, having heard the arguments from the parties, and having reviewed the records in camera, determined that releasing the names of individuals who were disciplined for violation of a university codes of conduct would be a clearly unwarranted invasion of their privacy and therefore the records were properly classified as private pursuant to Utah Code § 63G-2-302(2)(d), Furthermore, because of the potential chilling effect on individuals reporting information regarding violent and/or sexual misconduct the records were properly classified as protected records pursuant to Utah Code §§ 63G-2-305(10) and -305(11).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Annie Knox, Reporter for the Salt Lake Tribune, is DENIED.

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 23rd day of February 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee