State Records Committee

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN J. ONYSKO, Petitioner, v.

JORDANELLE SPECIAL SERVICE DISTRICT. Respondent.

DECISION AND ORDER

Case No. 17-19

By this appeal, Petitioner, Steven J. Onysko, seeks access to records allegedly held by Respondent, the Jordanelle Special Service District.

FACTS

On October 20, 2016, Mr. Onysko filed a request for records from the Jordanelle Special Service District (“JSSD”) pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested “[d]ocumentation, including but not limited to Phone Company billing records, of JSSD outgoing and incoming telephone calls for all telephones and extensions at any JSSD offices, treatment facilities, or other JSSD-associated property from August 1, 2015 to October 16, 2016.” JSSD provided 965 pages of records to Mr. Onysko, but redacted the last four digits of all phone numbers.

In a letter dated February 28, 2017, Mr. Onysko filed an appeal with Mike Petersen, Board Chair of JSSD, arguing that under GRAMA he was entitled to receive unredacted copies of the telephone records. In a letter dated March 13, 2017, Mr. Peterson denied Mr. Onysko’s appeal stating that the last four digits of phone numbers listed on the provided records had been redacted because release of the entire phone numbers would be a clearly unwarranted invasion of personal privacy pursuant to Utah Code § 63G-2-302(2)(d).

On April 11, 2017, Mr. Onysko filed an appeal with the State Records Committee (“Committee”). A hearing was held before the Committee on May 11, 2017, where the parties were allowed to present their legal arguments. After having reviewed the arguments submitted by the parties and having heard oral argument and testimony, the Committee now 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 Utah Code §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).

2. Records containing data on individuals the disclosure of which constitutes a “clearly unwarranted invasion of personal privacy” are private records if properly classified. Utah Code § 63G-2-302(2)(d).

3. JSSD claimed that when members of the public place a phone call with governmental entity, “they do not expect that the fact that they called the District will be made public knowledge…Individuals have an expectation that their phone numbers will remain private, or at least that they won’t be made public simply because they called a governmental entity.” Mr. Onysko instead argued that providing telephone records with the last four digits of the phone number redacted is “useless” and does not provide the information necessary for the public to know whether JSSD employees misused government time and resources. Mr. Onysko added that JSSD’s claim of “invasion of privacy” was instead meant “to shield culpable individuals from lawful investigation of these individuals’ conduct.”

4. After having reviewed the written arguments of the parties, hearing testimony and arguments at the hearing, the Committee finds that Mr. Onysko is entitled to receive unredacted copies of the requested records. The Committee is not convinced that release of telephone numbers of individuals making or receiving telephone calls from a governmental entity is considered a “clearly unwarranted invasion of privacy.” As stated by the Utah Supreme Court, “a record may not be withheld merely because its contents invade personal privacy. Instead, the invasion must be clearly unwarranted.” Deseret News Publ’g Co. v. Salt Lake Cty, 2008 UT 26, ¶ 33, 182 P.3d 372.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven J. Onysko, is hereby GRANTED.

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 22nd day of May 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee