State Records Committee Appeal Decision 2017-43

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN MAESE on behalf of the WASATCH CONSTABLE’S OFFICE, Petitioner, v.

WEBER STATE UNIVERSITY. Respondent.

DECISION AND ORDER

Case No. 17-43

By this appeal, Petitioner, Steven Maese on behalf of the Wasatch Constable’s Office, seeks access to records held by Respondents, Weber State University.

FACTS

On or about August 30, 2017, Mr. Maese made a records request on behalf of the Wasatch Constable’s Office pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Maese requested to “inspect or obtain copies of all records detailing FERPA directory information…for all students enrolled in [the] POST academy for the last two years.” Mr. Maese claimed that he should be allowed to have access to the records pursuant to Utah Code § 63G-2-206(1)(b), claiming that “[t]his office is the Ogden City Constable’s Office and we are charged with enforcing Ogden City’s criminal warrants as well as investigating and enforcing civil orders.”

In a letter dated September 6, 2017, Respondent’s Records Officer denied Petitioner’s request based on the determination that the records were not “necessary to a proceeding or investigation” as cited by the Petitioner in Utah Code § 63G-2-206(1)(b), and also under the Family Educational Rights and Privacy Act (“FERPA”). Mr. Maese filed an appeal with the President of Weber State University in an email sent on September 6, 2017. Charles A. Wight, President of Weber State University, upheld the Records Officer’s denial.

Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on November 9, 2017, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. According to GRAMA, the disclosure of an education record as defined in FERPA, 34 C.F.R. Part 99, that is also controlled or maintained by a governmental entity of the State of Utah, shall be governed by FERPA. Utah Code § 63G-2-107(2). See also, Utah Code § 63G-2-201(3)(b).

2. FERPA defines an “education record” as those records, files, documents, or other materials which contain information directly related to a student and are maintained by an educational agency or institution or by a person acting for such agency or institution. 20 U.S.C. § 1232g(a)(4)(A). Federal funds will not be made available to any educational agency that permits release of education records without: (1) The written consent of the student’s parents; or (2) The written consent from a student who has attained eighteen years of age or is attending an institution of postsecondary education. 20 U.S.C. § 1232g(b)(1) & (d).

3. The Committee is persuaded that the subject records are considered “education records” under FERPA and therefore, the disclosure or nondisclosure of the records is governed by FERPA pursuant to Utah Code §§ 63G-2-107(2) & -201(3)(b).

4. During the hearing, Mr. Maese explained that the reason for the request for the records of students enrolled in the Peace Officer Standards and Training (“POST”) academy during the past two years, was to recruit the students for potential employment with the Wasatch Constable’s Office. Respondent stated that it emailed its POST enrollees and graduates, and found that 24 of the 40 respondents indicated that they did not want to have their information shared. However, counsel for Respondent stated that for any students who were willing to give their consent to sharing their information to Petitioner, Respondent is willing to share that information with Petitioner.

5. After having reviewed the written and oral arguments of the parties, the Committee finds that Respondent appropriately determined that the requested records are considered education records under FERPA, and therefore, they cannot be disclosed unless written consent is given by the student. However, if written consent has been given by students who are the subject of the records, FERPA allows Respondent to disclose those student’s records to Petitioner.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Maese on behalf of the Wasatch Constable’s Office, 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 21st day of November 2017.

BY THE STATE RECORDS COMMITTEE

_______________________________________
DAVID FLEMING, Chairperson
State Records Committee