State Records Committee Appeal Decision 2018-21

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL CLÁRA, Petitioner, v.

UTAH STATE BOARD OF EDUCATION, Respondent.

DECISION AND ORDER

Case No. 18-21

By this appeal, Petitioner, Michael Clára, seeks access to records allegedly held by Respondent, the Utah State Board of Education.

FACTS

On or about April 10, 2018, Mr. Clára made a records request to the Utah State Board of Education (“Respondent”), pursuant to the Government Records Access and Management Act ("GRAMA"). Mr. Clára requested:

1. A copy of the School Resource Officer and School Administrators Training Curriculum.

2. Copies of meeting announcements, flyers, agendas, sign in sheets, minutes, emails, letters etc… demonstrating that the State School Board did “solicit input…from…interest community stakeholders…” in creating the curriculum and materials for the School Resource Officer and School Administrators training program.

3. Copies of request for proposals, contract, expenditures etc… associated with the development of the School Resource officer and School Administrators Training, Curriculum by vendors and/or consultants (those not employed by USBE).

4. Copies of documentation demonstrating an alleged “conflict of interest” that Dr. Prospero has in association with the School Resource Officer and School Administrators Training Curriculum.

On April 11, 2018, Respondent replied by e-mail stating that Respondent was only the host of the referenced meeting, and that the Utah Commission on Criminal and Juvenile Justice (“CCJJ”) was the convener of the meeting and would have the documents Mr. Clára was seeking. Mr. Clára filed an appeal to Sydnee Dickson, Respondent’s Chief Administrative Officer, who upheld the initial decision.

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 June 14, 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 private, controlled, or protected under §§63G-2-302, -303, -304, or 305, are not public records. Utah Code §63G-2-201(3)(a).

2. During the hearing, counsel for Respondent argued that all records responsive to Mr. Clára’s records request have already been provided to him. Mr. Clára disagreed, giving specific examples of records he believed should be within the care and custody of Respondent.

3. Based upon the written and oral evidence submitted to the Committee, the Committee finds that there is a question whether a further search by Respondent would yield records responsive to Mr. Clára’s records request. Although many, if not all of the requested records, may be within the control and custody of CCJJ, a search of Respondent’s records may also provide records for Mr. Clára. Accordingly, the Committee finds that Respondent should search for documents responsive to Mr. Clára’s records request where Respondent is the holder of the records, and if any such records are found, provide them to Mr. Clára.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Michael Clára, is 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 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 _25__ day of June 2018

BY THE STATE RECORDS COMMITTEE
__________________________________________
DAVID FLEMING, Chairperson
State Records Committee