State Records Committee Appeal Decision 2017-04
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. 17-04
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 or about September 9, 2016, Ms. Stuckey filed a request for records from USU pursuant to the Government Records Access and Management Act (“GRAMA”). The request stated that USU President Stan Albrecht had asked for an inquiry “into recent allegations of sexual assaults in the campus community.” The request stated that USU would implement a number of procedures following the recommendations from the inquiry including areas identified for improvement. Ms. Stuckey requested all records “used to aid in any oral presentation of the inquiry, its findings and recommendations,” all records “that resulted in the recommendation and inquiry summary” released by USU on August 24, 2016, and “any and all video or audio recordings of the oral presentation of the inquiry, its findings and recommendations.”
Ms. Stuckey’s request for records was denied by USU resulting in an appeal being filed with the State Records Committee (“Committee”). See, Stuckey v. Utah St. Univ., State Records Committee Case No. 17-01 (January 24, 2017). On January 12, 2017, a hearing was before the Committee where the parties were allowed to present their legal arguments. A motion was made by a Committee member to review the disputed records in camera. After a determination that the volume of records would make it difficult for the Committee to review the records during the hearing, the Committee voted unanimously to continue the hearing to a later date. Id. After having reviewed the disputed records in camera, the Committee held an open hearing on February 9, 2017, and issues the following Decision and Order:
STATEMENT OF REASONS FOR DECISION
1. The Utah 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. Records to which access is restricted pursuant to court rule, federal statute, or federal regulation, are not public records. Utah Code § 63G-2-201(3)(b). The disclosure of a record to which access is governed or limited pursuant to court rule, federal statute, or federal regulation, is governed by the specific provisions of that statute, rule, or regulation. Utah Code § 63G-2-201(6)(a). GRAMA applies to records described in -201(6)(a) insofar as GRAMA is not inconsistent with the statute, rule, or regulation. Utah Code § 63G-2-201(6)(b).
3. Utah Code § 63G-2-107(2) states that the disclosure of an education record as defined in the Family Educational Rights and Privacy Act (“FERPA”) that is controlled or maintained by a governmental entity “shall be governed” by FERPA. The Utah Court of Appeals found in Bryner v. Canyons Sch. Dist., 2015 UT App 131, 351 P.3d 852, that a “plain reading of FERPA’s statutory language reveals that Congress intended for the definition of education records to be broad in scope.” Bryner, 2015 UT App 131, ¶ 20, 351 P.3d at 857.
First, to qualify as an education record, the record must contain information directly related to a student. Information is directly related to a student if it has a close connection to that student. Records therefore directly relate to a student if the matters addressed in the records pertain to actions committed or allegedly committed by or against the student and contain information identifying the student. [O]nce personally identifiable information is deleted, a record is no longer an education record since it is no longer directly related to a student. [Bryner, 2015 UT App 131, ¶ 21, 351 P.3d at 857-58, citations and quotation omitted]
4. A review of the disputed records in camera shows that many of the records should be considered “education records” pursuant to FERPA because they are records that “directly relate to a student” and pertain to “actions committed or allegedly committed by or against the student.” However, a review of the records also revealed that once “personally identifiable information is deleted,” the record is no longer an education record subject to FERPA because the record “is no longer directly related to a student.” Accordingly, the Committee finds that some records are subject to FERPA and cannot be ordered to be released by the Committee pursuant to Utah Code § 63G-2-107(2). However, some records can be redacted in a manner that allows the record to no longer be directly related to the student and therefore they are subject to release as a public record.
5. Counsel for USU argued that the documents should be considered protected records pursuant to Utah Code § 63G-2-305(17) & (18). Records that are subject to the attorney client privilege or records prepared by an attorney “for, or in anticipation of” litigation or administrative proceeding are protected records if properly classified by the governmental entity. Id. Counsel argued that the documents include “communications from USU’s legal counsel to her client the USU Board of Trustees.” Counsel stated that the inquiry into recent allegations of sexual assaults in the campus community, the recommendations for improvement, and the oral presentation of that information were completed by USU’s legal counsel.
6. Ms. Stuckey argued that the inquiry, the recommendations from the inquiry, and the presentation from the inquiry, are not covered by the attorney client privilege or by the attorney work product doctrine. Ms. Stuckey claimed that even though the inquiry was completed by legal counsel for USU, it was completed in order for USU to follow federal mandates requiring colleges and universities to act responsibly in the interest of the safety of its students. Ms. Stuckey stated that other taxpayer funded institutions have released similar summaries and findings to the public.
7. The present case is very similar to S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 643, 200 P.3d 643 (“SUWA”). In that case, a records request pursuant to GRAMA was made for all records concerning certain routes over public lands in Emery County including maps and GIS data. The Committee and district court found that the documents were private and protected because “they were work product prepared in anticipation of litigation.” SUWA, ¶11, 200 P.3d at 649. The Utah Supreme Court reversed the Committee and the district court decision, finding that the records were not protected by the attorney work product doctrine or were considered attorney-client privileged communications under GRAMA because the “records [were] created in the ordinary course of its business pursuant to its statutory mandates. Their mere use in litigation does not render them exempt under GRAMA.” SUWA, ¶ 26, 200 P.3d 652-653.
True, the AGRC did provide the records to the attorney general’s office and to the Attorney General’s clients. However, “channeling work through a lawyer” does not by itself create a basis for attorney client privilege. [SUWA, ¶35, 200 P.3d at 655]
Accordingly, the Committee finds similar to the Utah Supreme Court in SUWA, that the work completed by USU legal counsel related to the inquiry was not “for or in anticipation of litigation,” but was instead in response to the request of the USU President to determine procedures for USU in response to recent allegations of sexual assaults in the campus community. Such an inquiry did not require an attorney to complete this task, and simply because an attorney did the work does not by itself convert the work into attorney work product or attorney-client privileged communications.
8. Accordingly, using the reasoning as stated above, the Committee has made a determination of proper classification of the disputed documents as follows:
FILE/PAGE NUMBER |
CLASSIFICATION |
REASONING |
1 – 2, 6, 12, 25, 26 |
PUBLIC |
|
3: pp. 1 – 7 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
3: pp. 17 – 18 |
PUBLIC |
|
3: ALL REMAINING PAGES |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
4: pp.1 – 6, 11 – 17 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
4: pp. 7 – 10 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
5: p. 1 |
PUBLIC |
|
5: pp. 2 – 12, 15 – 19 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
5: pp. 13 – 14 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
7: pp. 1 – 9 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
7: pp. 10 – 18 |
PUBLIC |
|
8, 10, 14 - 21 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
9: 1 – 10 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
9: 11 – 14 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
9: 15 – 28 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
9: 29 – 46 |
PROTECTED |
These documents are shared records and are subject to the controlling agency’s original classification according to Utah Code § 63G-2-206 and Utah Code § 63G-2-305(10). |
11 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
13: p. 1 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
13: pp. 2 – 3 |
PUBLIC |
|
22: p. 1 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
22: pp. 2 – 3 |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
23 – 24: pp. 1 – 4 (both groups) |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
23 – 24: ALL REMAINING PAGES |
PROTECTED |
These documents are student or education records which cannot be redacted of personally identifiable information and therefore are subject to FERPA restrictions. |
27 |
PROTECTED |
These documents are shared records and are subject to the controlling agency’s original classification according to Utah Code § 63G-2-206 and Utah Code § 63G-2-305(10), and cannot be disclosed by USU. |
28 – 29 |
SUBJECT TO PUBLIC DISCLOSURE AFTER REDACTION |
Redaction of personally identifiable information including dates removes documents from requirement of non-disclosure pursuant to FERPA. |
ORDER
THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Alex Stuckey, is hereby 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 21st day of February 2017.
BY THE STATE RECORDS COMMITTEE
_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee
Page Last Updated February 22, 2017 .