State Records Committee Appeal Decision 2021-18

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DEVON CANTWELL, Petitioner, v.

UNIVERSITY OF UTAH, Respondent.

DECISION AND ORDER

Case No. 20-18

By this appeal, Petitioner, Devon Cantwell, seeks access to records allegedly held by Respondent, the University of Utah.

FACTS

Ms. Cantwell is a member of “UnsafeU”, a student group concerned with safety issues on Respondent’s campus. On June 29, 2020, Ms. Cantwell made a records request pursuant to the Government Records Access and Management Act (“GRAMA”) to Respondent. Ms. Cantwell requested email correspondence between Respondent’s Office of Equal Opportunity and Nicole Bedera, a Ph.D. candidate at the University of Michigan. Ms. Cantwell also requested specifically a copy of a report written that was sent to Respondent between October 2019 and January 2020. The written report and accompanying PowerPoint presentation exploring student experiences with universities’ handling of on-campus sexual misconduct complaints, were created by Ms. Bedera and emailed to Respondent in December 2019.

In an email dated July 13, 2020, a paralegal on behalf of Respondent, denied the records request stating that the report does not meet the definition of a “record” under GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(iv). The denial further stated that even if the report were considered a record, it would be considered a protected record pursuant to Utah Code § 63G-2-305(22) & (40).

An appeal filed on behalf of Ms. Cantwell was received by Respondent on August 14, 2020. Gregory C. Thompson, Appeals Officer for Respondent, upheld the initial denial finding that the report and accompanying materials created by Ms. Bedera do not meet the definition of a record under GRAMA, and if they were considered records, they would be classified as non-public protected records.

In a letter to the Committee dated September 16, 2020, Ms. Cantwell filed an appeal with the State Records Committee (“Committee”). On March 29, 2021, Respondent provided emails to Ms. Cantwell responsive to her request. However, Ms. Bedera’s report, the accompanying PowerPoint, and Respondent’s response, were excluded from this release. On April 8, 2021, the Committee held an electronic hearing during which the parties presented their arguments. After carefully considering the arguments from all parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours, subject to Utah Code §§ 63G-2-203 & -204. Utah Code § 63G-2-201(1).

2. Under GRAMA, a “record” does not mean material to which access is limited by the laws of copyright or patent unless the copyright or patent is owned by a governmental entity or political subdivision. Utah Code § 63G-2-103(22)(b)(iv).

3. Respondent’s counsel argued that all public records responsive to Ms. Cantwell’s records request had already been provided to her. Counsel also argued that the records related to Ms. Bedera’s report are not records under GRAMA, claiming that since they were independently created by Ms. Bedera, she is the person who holds the copyright to her creation and not Respondent.

4. After considering all evidence presented to the Committee including testimony provided during the hearing, the Committee is convinced that Respondent did a thorough search for records and has provided all public records responsive to Ms. Cordray. However, Respondent is not required to provide Ms. Bedera’s written report and accompanying PowerPoint presentation. They are not considered records under GRAMA because Ms. Bedera holds the copyright to the materials and she has not consented to their public release. Accordingly, the Committee finds that Respondent properly determined that these materials are not records subject to GRAMA pursuant to Utah Code § 63G-2-103(22)(b)(iv).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Devon Cantwell, 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 19th day of April 2021

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH WILLIAMS
Chair, State Records Committee