State Records Committee Appeal Decision 2016-42

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ALEX STUCKEY on behalf of SALT LAKE TRIBUNE, Petitioner, v.

UTAH STATE UNIVERSITY. Respondent.

DECISION AND ORDER

Case No. 16-42

By this appeal, Petitioner, Alex Stuckey, reporter for the Salt Lake Tribune, seeks access to records allegedly held by Respondent, the Utah State University (“USU”).

FACTS

On May 31, 2016, Ms. Stuckey filed a request for records from USU pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Stuckey requested “any and all correspondence mentioning Torrey Green from 2009 to present” between specifically named individuals. In an email dated June 7, 2016, Mica McKinney, general counsel for USU, stated that the request was being denied because access to the records is restricted pursuant to the Federal Family Educational Rights and Privacy Act (“FERPA”) because the requested records directly related to USU’s records of a university student.

Ms. Stuckey filed an appeal with USU’s chief administrative officer, arguing that correspondence regarding students does not constitute a student record as defined under FERPA. When no response was given, Petitioner considered the non-response to be the equivalent of a determination denying access to the record as outlined in Utah Code § 63G-2-403(1)(b), and filed an appeal with the Committee. On October 13, 2016, a hearing was before the State Records Committee (“Committee”), where the parties were allowed to present their legal arguments. After considering all arguments by the parties, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code §63G-2-201(2). Records that are private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).

2. The disclosure of an education record as defined in FERPA (34 C.F.R. Part 99), that is controlled or maintained by a governmental entity, shall be governed by FERPA. Utah Code § 63G-2-107(2). Similarly, a record to which access is restricted pursuant to federal statute or federal regulation, is not a public record under GRAMA. Utah Code § 63G-2-201(3)(b). Further, disclosure of a record to which access is governed by federal statute or federal regulation, is governed by the specific provision of that statute, rule, or regulation. Utah Code § 63G-2-201(6)(a).

3. Petitioner argues that correspondence concerning a USU student is not a “student record” under FERPA. In a recent Utah Court of Appeals decision, the court discussed the applicability of FERPA to student records:

A plain reading of FERPA’s statutory language reveals that Congress intended for the definition of education records to be broad in scope… First, to qualify as an education record, the record must “contain information directly related to a student.” [Second,] a record must also be “maintained by an educational agency or institution or by a person acting for such agency or institution.” [Bryner v. Canyons Sch. Dist., 2015 UT 131, ¶¶ 20, 21, & 24, citations omitted]

The court thereafter held that GRAMA’s provisions will apply so long as they are not inconsistent with FERPA, and then found that FERPA generally restricts access to any personally identifiable information of students. Bryner, ¶ 32.

4. USU argued in its written materials that the requested records should be considered student records under FERPA because: (1) The records request specifically targeted records directly related to Mr. Green, a USU student; and (2) The responsive records are maintained by USU and employees acting for USU.

5. After having reviewed the written arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that the requested records are student records under FERPA, and therefore, disclosure or non-disclosure of the records are governed by FERPA. See, Utah Code §§ 63G-2-107(2), -201(3)(b), and -201(6)(a). Since FERPA restricts access to any personally identifiable information found in student records, USU’s decision to deny access to the requested records is upheld.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Alex Stuckey, 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 24th day of October 2016.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee