State Records Committee Appeal Decision 2019-14

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JUDITH ZIMMERMAN, Petitioner, v.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent.

DECISION AND ORDER

Case No. 19-14

By this appeal, Petitioner, Judith Zimmerman, seeks access to records allegedly held by Respondent, the Utah Attorney General’s Office.

FACTS

On or about January 24, 2019, Ms. Zimmerman made a request for records to the Utah Attorney General’s Office (“AG’s Office”) pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Zimmerman requested any and all documentation of disciplinary action taken against four individuals who were current or former employees of the AG’s Office. In a letter dated February 13, 2019, Government Records Counsel Lonny J. Pehrson responded with two pages of records regarding one of the employees, but then stated that after a reasonable search, no records of disciplinary action could be found regarding the other three employees. Mr. Pehrson supplemented the initial response with a four page “Notice of Intent” which had been classified by the AG’s Office as a public record pursuant to GRAMA.

In a letter dated February 26, 2019, Ms. Zimmerman filed an appeal with the AG’s Office. Ms. Zimmerman requested the AG’s Office “search again for disciplinary records” believing that more records could be found. In a letter dated March 12, 2019, Tyler R. Green, Solicitor General for the AG’s Office, responded to Ms. Zimmerman’s appeal. Mr. Green stated that based upon further research, additional records regarding one of the individuals were found “that could conceivably be responsive to your request.” However, Mr. Green concluded that the records were related to “informal or non-disciplinary actions” such as the continuation of a new employee probationary period, the implementation and completion of a performance improvement plan, or an informal verbal counseling of an employee. Accordingly, Mr. Green found that these records should be classified as private records pursuant to Utah Code § 63G-2-302(2)(a). Mr. Green also considered whether the additional records should be re-classified as public records under the weighing authority of Utah Code § 63G-2-401(6). However, Mr. Green determined that release of the records would not be in the public’s interest and therefore, did not release these records to Ms. Zimmerman.

On April 1, 2019, Ms. Zimmerman filed an appeal with the State Records Committee (“Committee”). After reviewing the written arguments of the parties and hearing oral argument and testimony at a hearing held on June 13, 2019, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. A record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). Under GRAMA, records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. If a governmental entity receives a request for access to a record that contains both information that the requester is entitled to inspect and information that the requester is not entitled to inspect under GRAMA and the information the requester is entitled to inspect is ineligible, the governmental entity shall allow access to the information in the record that the requester is entitled to inspect and may deny access to information the requester is not entitled to inspect. Utah Code § 63G-2-308.

3. During the hearing, Mr. Pehrson, Counsel for the AG’s Office, stated that an additional eight pages of documents had been released to Ms. Zimmerman during the prior week. Mr. Pehrson also stated that three words in the documents had been redacted prior to being given to Ms. Zimmerman. Mr. Pehrson argued that the redactions were necessary because they contained information that would be considered protected information pursuant to Utah Code §§ 63G-2-305(17) & (18).

4. The Committee examined these documents in camera and determined that the redactions were proper pursuant to Utah Code §§ 63G-2-305(17) (records subject to the attorney client privilege), and -305(18) (records prepared by an attorney for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding). Accordingly, the Committee upheld the AG’s Office’s decision to redact these documents.

5. Records concerning a current or former employee of, or applicant for employment with a governmental entity “including performance evaluations and personal status information”, are private if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a). However, exceptions to this include: (1) Specific information concerning governmental employees listed in Utah Code § 63G-2-301(2)(b), or (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 had been completed, the periods for administrative appeal have expired and the charges were sustained. See, Utah Code §§ 63G-2-302(2)(b) & -301(3)(o).

6. The Committee finds that the records regarding employee’s Performance Improvement Plans and the e-mail concerning verbal counseling, are not considered records involving “disciplinary action” pursuant to Utah Code § 63G-2-301(3)(o). Therefore, the Utah AG’s Office is not required to provide these records to Ms. Zimmerman because they were properly classified as private records pursuant to Utah Code § 63G-2-302(2)(b).

7. The Committee also finds that based upon the testimony presented at the hearing, the AG’s Office provided all responsive records to Ms. Zimmerman’s request other than those records which were found to be non-public.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Judith P. Zimmerman, is DENIED.

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 24th day of June 2019.

BY THE STATE RECORDS COMMITTEE

__________________________________________
TOM HARALDSEN, Chair
State Records Committee