State Records Committee Decision 2016-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

CODY BLACK, Petitioner, v.

LEHI CITY POLICE DEPARTMENT. Respondent.

DECISION AND ORDER

Case No. 16-15

By this appeal, Petitioner, Cody Black, seeks access to records allegedly held by Respondent, Lehi City Police Department.

FACTS

On or about January 11, 2016, Lehi City Police Department (‘Respondent”) received a Government Records Access and Management Act (“GRAMA”) request from Mr. Black for records involving the “[h]iring/promoting methods and results/score for each applicant for each hiring/promotion event in the date range 1/01/15-11/30/15 for the Lehi Police Department Positions: deputy chief, lieutenants, sergeants, corporals, patrol officers.” In a letter dated January 28, 2016, Respondent attached “scanned copies of records from the positions,” noting that “all the information [requested] exists in a record,” but some information would not be provided. On February 1, 2016, Mr. Black appealed and in a letter dated February 17, 2016, the City Administrator for Lehi City wrote that “all of the records that were responsive to your request have been disclosed to you.”

Mr. Black filed an appeal with the State Records Committee (“Committee”). On April 14, 2016, the Committee held a public hearing to consider the merits of the Appeal. After having reviewed the arguments submitted by the parties, hearing oral argument and testimony, and carefully considering the requested relief, the Committee 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. The definition of a record under GRAMA does not include a “personal note or personal communication” prepared or received by an employee or officer of a governmental entity in a capacity other than the employee’s or officer’s governmental capacity, or is unrelated to the conduct of the public’s business. Utah Code § 63G-2-103(22)(b)(i). A record also does not include a “daily calendar or other personal note” prepared by the originator for the originator’s personal use or for the personal use of an individual for whom the originator is working. Utah Code § 63G-2-103(22)(b)(ix).

3. Respondent argued that interviewers’ notes and scores for employment candidates “do not fall within the definition of a ‘record’” under GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(ii) and (ix). Respondent stated that the notes were personal to each interviewer and were used either to assist the interviewer in scoring the candidate’s interview responses, or were used to help remind the interviewers of the candidate’s responses during the deliberative process.

4. After carefully considering the evidence presented, the Committee finds that the interview notes and scores for the employment candidates should be considered records of the governmental entity, and should not be excluded from the definition of a “record” pursuant to Utah Code § 63G-2-103(22)(b)(ii) and (ix). The records were not used or prepared in a capacity other than the employee’s governmental capacity, and the records were related to the conduct of the public’s business. Additionally, the records were not used only for the originator’s “personal use.”

5. Respondent argued in the alternative that if the disputed records were subject to GRAMA, the records would still be considered non-public records. A governmental entity may properly classify a record as “private” if the information is “concerning 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…” See Utah Code § 63G-2-302(2)(a). Counsel for Respondent argued that the records were properly classified as “private” pursuant to Utah Code § 63G-2-302(2)(a).

6. The Committee finds that Respondent properly classified the records as “private” records pursuant to Utah Code § 63G-2-302(2)(a). However, pursuant to Utah Code § 63G-2-202(1)(a), the “subject of the record” is entitled to receive a copy of a non-public private record. Accordingly, Respondent should provide Mr. Black with copies of the requested private records where Mr. Black is the subject of the record, but redact any other private information where Mr. Black is not the “subject of the records.” The Committee further finds that the records also include public information that should be released to Mr. Black. These records “contain both information that the requester is entitled to inspect and information that the requester is not entitled to inspect.” See, Utah Code § 63G-2-308.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Cody Black, 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 25th day of April 2016.

BY THE STATE RECORDS COMMITTEE

_______________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee