State Records Commitee Appeal Decision 2020-45

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MIKE FAVERO, Petitioner, v.

LOGAN CITY SCHOOL DISTRICT. Respondent.

DECISION AND ORDER

Case No. 20-45

By this appeal, Petitioners, Mike Favero, seeks access to records allegedly held by Respondent, the Logan City School District.

FACTS

On or about March 2, 2020, Mr. Favero made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Favero requested “all emails and text messages exchanged to and or from Superintendent Frank Schofield, Principal Ken Auld and Board member Ann Geary on Logan City Schools Districts computers or cell phones.”

Respondent partially denied Mr. Favero’s request indicating that a portion of the request was protected under GRAMA under the attorney client privilege. Mr. Favero filed an appeal with the Chief Administrative Officer and received a denial of his appeal on July 23, 2020.

Thereafter, Mr. Favero filed an appeal with the State Records Committee (“Committee”). On September 10, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA states that a record is public unless otherwise expressly provided by statute. Utah Code § 63G-2-201(2). A record that is private, controlled, or protected under §§ 63G-2-302, -303, -304, & -305 are not public records. Utah Code § 63G-2-201(3)(a). Additionally, records to which access is restricted pursuant to federal statute or federal regulation are not public records. Utah Code § 63G-2-201(3)(b).

2. Respondent provided to the Committee copies of the disputed records with a three page listing of 93 separate e-mails grouped by date, which also showed time, sender, recipient, subject, and GRAMA statutory references for each e-mail.

3. The Committee reviewed all 93 e-mails in camera, and hereby uphold Respondent’s classifications of the records as non-public based upon Respondent’s records classifications and statutory references except as otherwise noted in this Order.

4. The e-mails between November 28, 2018 to March 6, 2019 should be classified as public records but subject to redactions for protected attorney correspondence, attorney opinions, and names pursuant to Utah Code § 63G-2-305(17) & (18).

5. The two e-mails dated June 3, 2019 and the e-mail dated June 7, 2019 should be classified as public records.

6. The name appearing on Page 238 of the provided documents should be redacted.

7. The three e-mails on June 24, 2019 at 8:01 PM, 8:16 PM, & 8:18 PM are public records subject to redactions pursuant to Utah Code § 63G-2-305(17) & (18). Additionally the e-mail from June 24, 2019 at 10:32 PM should be similarly made public subject to the same redactions because it is part of the same thread of the previous three e-mails from June 24, 2019.

8. The e-mail dated September 16, 2019 and the two e-mails dated September 19, 2019 are public records subject to redactions pursuant to Utah Code § 63G-2-305(10(d).

9. The e-mail dated March 6, 2020 is a public record.

10. All records that have been ordered to be disclosed are also under the requirement that any student names appearing in the records should be redacted pursuant to Utah Code § 63G-2-107(2).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Mike Favero is hereby 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 21 day of September 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee