State Records Committee Appeal Decision 2018-38

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

RAYMOND CLINTON, Petitioner, v.

TOOELE SCHOOL DISTRICT Respondent.

DECISION AND ORDER

Case No. 18-38

By this appeal, Petitioner, Raymond Clinton, seeks access to records allegedly held by Respondent, the Tooele School District.

FACTS

On or about June 13, 2018, Mr. Clinton made a records request to the Tooele School District ("Respondent"), pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Clinton had been the Varsity Baseball Coach for Stansbury High School and had been recently terminated from his position. Mr. Clinton requested all records and correspondence the Stansbury High School Principal had relating to the Stansbury High Baseball program and Mr. Clinton as the former coach.

On July 10, 2018, Respondent granted, in part, Mr. Clinton’s request and provided two records from what would have been considered a personnel file. Respondent denied the remainder of the request stating that the records were protected pursuant to Utah Code §§63G-2-305(10) and (25) and private under Utah Code §63G-2-302(2)(a). Mr. Clinton appealed the denial to the Chief Administrative Officer, Dr. Scott A. Rogers, and on July 23, 2018, Dr. Rogers denied the appeal.

Mr. Clinton filed an appeal with the State Records Committee (“Committee”). After hearing oral argument and testimony from all the parties on October 11, 2018, and carefully considering the requested relief of the parties, the Committee 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. Additionally, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, are also considered non-public records. Utah Code § 63G-2-201(3)(b).

2. An in camera review of the records shows that they may be categorized as follows: the first category consists of a personnel record of another individual; the second category consists of student statements regarding another individual; the third category consists of correspondence to the principal from parents; and category four consists of records of the school principal’s notes.

3. The record in category one (Bates #1) has been classified by Respondent as a private record pursuant to Utah Code § 63G-2-302(1)(g) (employment records concerning a current or former employee that would disclose an individual’s home address, home telephone number, social security number, insurance coverage, marital status, or payroll deductions, are private records). Although this is the correct classification and pursuant to Utah Code § 63G-2-202(1)(a)(i), GRAMA allows disclosure of a private record to “the subject of the record,” the Committee finds that Respondent is not required to disclose this record to Mr. Clinton at this time because he is not the subject of the record and it is not responsive to Mr. Clinton’s request for records about the petitioner as the former coach.

4. Records in category two (Bates #2-5) have been classified by Respondent as protected under Utah Code § 63G-2-305(10) as student witness statements and as student records are not subject to disclosure pursuant to Utah Code § 63G-2-107(2) (the disclosure of an education record as defined in the Family Educational Rights and Privacy Act…that is controlled or maintained by a governmental entity shall be governed by the Family Educational Rights and Privacy Act…”). An in camera review of the records shows that they are student statements not related to the petitioner and not responsive to the request. Moreover, they are education records, and pursuant to the Family Education Rights and Privacy Act (“FERPA”), may not be released 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). Accordingly, the Committee finds that Respondent may not be required to disclose the records pursuant to the requirements of FERPA.

5. Records in category three (Bates #6-21) and category four (Bates #22-26) includes parents’ correspondence, community member correspondence, and the school principal’s notes referencing the communications. The Committee finds that these records are responsive to Mr. Clinton’s records request.

6. Records that are created or maintained for civil, criminal, or administrative enforcement purposes are protected records if properly classified by a governmental entity if release of the records reasonably could be expected to disclose the identity of a source who is not generally known outside of government. Utah Code § 63G-2-305(10)(d). Further, records, other than personal evaluations, that contain a personal recommendation concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal privacy, or disclosure is not in the public interest, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(25).

7. After having reviewed records in categories three and four in camera, the Committee finds that these records are protected records pursuant to Utah Code §§ 63G-2-305(10)(d) and (25). The records contain names, e-mail address, addresses, phone numbers, and other references to students that make these records protected records. However, to the extent that this personal information can be redacted and any criticisms or complaints can be made public without identifiable information of the individual, Respondent should provide these records with redactions.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Raymond Clinton 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 26th day of October 2018

BY THE STATE RECORDS COMMITTEE

_____________________________________
DAVID FLEMING, Chairperson
State Records Committee