State Records Committee Appeal Decision 2016-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROGER BRYNER, Petitioner, v.

CLEARFIELD CITY. Respondent.

DECISION AND ORDER

Case No. 16-11

By this appeal, Petitioner, Roger Bryner, seeks access to records allegedly held by Respondent, Clearfield City.

FACTS

On or about January 20, 2016, Mr. Bryner made a records request to Clearfield City pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Bryner requested the following:

[M]eeting minutes or any other documents whatsoever showing the Mayor and/or City Counsel, either individually, separately, or through delegation, appointing either permanent or temporary Justice court Judges. (sic) This should go back 1 year for all of 2015 to present.

On February 10, 2016, Clearfield City provided Mr. Bryner with approximately 110 pages of redacted records, and an explanation for the redactions.

On February 1, 2016, Mr. Bryner made an additional records request seeking:
…any records related to the leave of absence or absence of the justice court judge in 2011….how long he was gone, if he gave notice, and if there are any public documents about this other than what you have already provided.

On February 9, 2016, Clearfield City provided Mr. Bryner redacted records. On or about February 10, 2016, Mr. Bryner appealed both requests on the “basis of the correctness of the redaction...” Clearfield City’s Manager responded to Mr. Bryner’s appeal, finding that the redactions were proper.

Mr. Bryner 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 records in camera, on March 17, 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 § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. A governmental entity may properly classify a record as “protected” if the “records … are subject to the attorney client privilege,” see Utah Code § 63G-2-305(17).

3. A record is private if it contains data on individuals “describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data.” Utah Code § 63G-2-302(1)(b).

4. A record is “private,” if it concerns a “current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities…” Additional records about at risk employees may also properly be classified as “private.” See Utah Code §§ 63G-2-302(2)(a) and (1)(h).

5. Counsel for Clearfield City argued that the records contained private and protected information, and the information was properly redacted.

6. The Committee, having heard the arguments from the parties, having reviewed the records in camera, and having grouped the records in three separate categories, has determined the following:

1) Email correspondence with Mr. Lenhard and records relating to the February 1, 2016, GRAMA request, were properly classified as private records pursuant to Utah Code § 63G-2-302(1)(b).

2) Email correspondence and records related to the January 20, 2016, GRAMA request were properly classified as protected records and properly redacted pursuant to Utah Code § 63G-2-305(17), with the exception of the “Legislative Section” records.

3) Records originally provided by the Administrative Office of the Courts (“AOC”) cannot be provided by Clearfield City because the AOC are the original custodians and classifiers of the records, and they are not subject to appeal through the Committee as stated in Utah Code § 63G-2-702(2).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Roger Bryner, is GRANTED in part and DENIED in part.

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 28th day of March, 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee