State Records Committee Appeal Decision 2017-26

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ANNA BURLESON on behalf of STANDARD-EXAMINER, Petitioner, v.

BOX ELDER SCHOOL DISTRICT. Respondent.

DECISION AND ORDER

Case No. 17-26

By this appeal, Petitioner, Anna Burleson, reporter for the Standard-Examiner, seeks access to records allegedly held by Respondent, the Box Elder School District (“District”).

FACTS

On or about May 1, 2017, Ms. Burleson filed a request for records from the District pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Burleson requested “all applications and accompanying documents for the position of [District] superintendent in 2017.” Ms. Burlseon clarified that accompanying documents “included but are not limited to letters of reference, qualifications, resumes, cover letters and letters of intent.”

In a letter dated May 5, 2017, Rodney L. Cook, Business Administrator for the District, stated that Ms. Burleson’s request was being denied pursuant to Utah Code §§ 63G-2-302(1)(g), -302(2)(a), and -302(2)(d). Ms. Burleson filed an appeal to Dr. Ron Tolman, Superintendent of the District. In a letter dated May 9, 2017, Dr. Tolman affirmed in part the decision of Mr. Cook. Dr. Tolman wrote:

[I]n the spirit of the public’s right to know, the Box Elder County School Board is releasing the names of the Superintendent finalists and their resumes on Tuesday afternoon, with personal information and personal reference information redacted. In our minds, this creates a fair balance between encouraging all interested applicants and protecting their privacy in their current employment and the community’s right to know the names and backgrounds of the most viable candidates for Superintendent.

However, Dr. Tolman did not release all the requested records because often “applicants apply confidentially without the knowledge of their current employers” and “those who provide letters of recommendation for applicants have a right to do so confidentially.”

On May 10, 2017, Ms. Burleson filed an appeal with the State Records Committee (“Committee”). A hearing was held before the Committee on July 13, 2017, where the parties were allowed to present their legal arguments. After considering the arguments and reviewing all written materials, 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 §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).

2. Records 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, but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o) or private under -302(1)(b), are private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a).

3. Some of the exceptions to the general rule that employment records are private records pursuant to Utah Code § 63G-2-302(2)(a) are: (1) Records disclosing the name, gender, gross compensation, job title, job description, business address, business email address, business telephone number, number of hours worked per pay period, dates of employment, and relevant education, previous employment, and similar job qualifications of a current or former employee or officer of the governmental entity; and (2) Records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee if the disciplinary action has been completed and all time periods for administrative appeal have expired and the charges on which the disciplinary action was based were sustained. See, Utah Code §§ 63G-2-301(2)(b) & -301(3)(o).

4. A review of Ms. Burleson’s request for records shows that she is requesting records that if properly classified by the governmental entity, are considered private records pursuant to Utah Code § 63G-2-302(2)(a). Additionally, the exceptions to the general rule concerning employment records of governmental entities listed in Utah Code § 63G-2-302(2)(a) only apply to current and former employees of a governmental entity, and do not apply to applicants for employment with a governmental entity.4

5. However, the Committee has previously held that “the public has the right to know the selection process of the Superintendent of the District” and that applications for a district superintendent position “are public to the extent that they contain the name and qualifications of the applicants.” Taylor v. Wasatch Cty. School Dist., State Records Comm. Case. No. 16-43 (Oct. 24, 2016). Accordingly, any applications containing the names and qualifications of the applicants for the Superintendent of the District position that have not already been released by the District, should be released with proper redactions of private information. Id. The remaining application records were properly classified as private records and shall remain nonpublic pursuant to Utah Code § 63G-2-302(2)(a).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Anna Burleson, 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 25th day of July 2017.

BY THE STATE RECORDS COMMITTEE

_____________________________________
HOLLY RICHARDSON, Chairperson Pro Tem
State Records Committee