State Records Committee Appeal Decision 2018-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MCKHELYN JONES on behalf of THE UVU REVIEW, Petitioner, v.

UTAH VALLEY UNIVERSITY, Respondent.

DECISION AND ORDER

Case No. 18-13

By this appeal, Petitioner, McKhelyn Jones, on behalf of The UVU Review, seeks access to records held by Respondent, Utah Valley University.

FACTS

On or about November 2, 2017, Petitioner made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Petitioner requested records regarding a specific person’s employment status, complaints/audits made against said person or the Title IX office, and the redaction of a document showing said person’s annualized base pay.

Respondent indicated that the records were private and protected pursuant to Utah Code § 63G-2-302 and -305 and issued a denial. Petitioner appealed the denial to Respondent’s Vice President of Administration and Legislative Affairs, Val Peterson. Thereafter, the denial was upheld.

Petitioner filed an appeal with the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties, having reviewed the records in camera and having heard oral argument and testimony on April 12, 2018, 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 not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. In the present case, there are eight different files that are the subject of Petitioner’s records request. At the hearing, Respondent agreed to release the records contained in File #2 based upon a reclassification of the records to be public records as allowed by Utah Code § 63G-2-307(3) (“A governmental entity may redesignate a record series or reclassify a record or record series, or information within a record at any time”). Accordingly, File #2 should be released to Petitioner, without redaction.

3. Regarding the remaining seven record files, Respondent has classified the records as either protected records pursuant to Utah Code § 63G-2-305(10)(a-d), or private records pursuant to Utah Code § 63G-2-302(2)(a).

4. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, are protected records if properly classified by a governmental entity, if release of the records: (1) Reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; (2) Reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; (3) Would create a danger of depriving a person of a right to a fair trial or impartial hearing; or (4) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. Utah Code § 63G-2-305(10)(a-d).

5. 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, are generally private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a).

6. After having reviewed the written and oral arguments of the parties and having reviewed the records in camera, the Committee finds that Respondent properly classified File #1 and Files #3 through #8 as non-public records pursuant to Utah Code §§ 63G-2-305(10)(a), -305(10)(b), -305(10)(c), -305(10)(d), and/or -302(2)(a).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, McKhelyn Jones, on behalf of The UVU Review, 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 a parties’ 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. Utah Code § 63G-2-403(15)(d)(i)(B). 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 23rd day of April 2018

BY THE STATE RECORDS COMMITTEE

__________________________________________
DAVID FLEMING, Chairperson
State Records Committee