State Records Committee Appeal Decision 2020-59

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN ONYSKO, Petitioner, v.

ATTORNEY GENERAL’S OFFICE. Respondent.

DECISION AND ORDER

Case No. 20-59

By this appeal, Petitioner, Steven Onysko, seeks access to records allegedly held by Respondent, Attorney General’s Office.

FACTS

On or about October 24, 2019, Mr. Onysko made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Onysko requested “all records and documentation relating to … alteration, changes, reprogramming, deactivation, or other conduct” with respect to a former Civil Deputy’s building access cards.

On November 7, 2019, Respondent notified Mr. Onysko that they were not responsible for handling building access cards and directed Mr. Onysko to the appropriate state agency that handled said building access cards. Mr. Onysko filed an appeal with the Chief Administrative Officer noting that there should be records of communications instructing the deactivation of the building access card. On November 26, 2019, Respondent granted Mr. Onysko’s appeal and provided a one-page exchange of text messages which included the request to disable the building access card. However, the personal mobile telephone number of the former Chief Deputy was redacted.

On December 4, 2019, Mr. Onysko filed an appeal with the State Records Committee (“Committee”) appealing the redaction of the record provided by Respondent. On November 12, 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 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. Government records concerning a current or former employee with a governmental entity that would disclose that individual’s home telephone number is a private record. Utah Code § 63G-2-302(1)(g). Because of the technology advances in today’s society, a personal mobile telephone number should also be considered a private non-public record similar to an individual’s home telephone number under Utah Code § 63G-2-302(1)(g). See, Uno v. Salt Lake City Sch. Dist., State Records Committee Case No. 10-18 (Sept. 16, 2010), ¶¶ 6 & 8.

3. The Committee agrees with Respondent’s argument that a personal mobile telephone number of a former government employee is private non-public information pursuant to Utah Code § 63G-2-302(1)(g). Accordingly, the Committee finds that Respondent’s redaction of the former Civil Deputy’s personal mobile telephone number from the document provided to Mr. Onysko was appropriate.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Steven Onysko is hereby 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 23 day of November 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee