State Records Committee Appeal Decision 2021-38

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NIMO LEAUANAE, Petitioner, v.

ALPINE SCHOOL DISTRICT, Respondent.

DECISION AND ORDER

Case No. 21-38

By this appeal, Petitioner, Nimo Leauanae, appeals two decisions by Respondent, the Alpine School District.

FACTS

On October 27, 2020, a volleyball game was held between Timpview and Mountain View High Schools. During the game, an incident took place between the coach of the Mountain View team, and the daughter of Ms. Leauanae, a player on the Timpview team. On January 13, 2021, Ms. Leauanae sent an e-mail to Mountain View Vice Principal Mike Erickson, asking if “there was an investigation” of the incident. In an e-mail dated January 15, 2021, Principal Erickson stated that “we have exhaustively investigated the incident.”

On January 15, 2021, Ms. Leauanae submitted a records request to Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Ms. Leauanae requested a copy of the referenced investigative report conducted by Principal Erickson regarding the October 27, 2020 volleyball game incident.

In an e-mail dated January 21, 2021, Respondent’s records officer denied Ms. Leauanae’s records request stating that the records had been classified as private personnel records. On January 22, 2021, Ms. Leauanae filed an appeal with Robert W. Smith, Business Administrator for Respondent. Mr. Smith upheld the initial denial finding that the records were private personnel records pursuant Utah Code § 63G-2-302(2)(a) because they included evaluative and disciplinary information. Ms. Leauanae filed an appeal of Mr. Smith’s decision with the State Records Committee (“Committee”) and her appeal was assigned Appeal # 2021-20.

On March 17, 2021, Ms. Leauanae made a second request for records pursuant to GRAMA with Respondent. Ms. Leauanae requested copies of all e-mails to and from Respondent’s Elementary Director of Student Services/Title IX Coordinator that referenced the October 27, 2020 incident. Ms. Leauanae also requested a fee waiver for these records. On April 5, 2021, Respondent’s records officer provided Ms. Leauanae with all responsive e-mails except for two e- mails. The records officer denied Ms. Leauanae’s request for a fee waiver and assessed her $168.75 for staff time spent responding to the records request.

Ms. Leauanae filed an appeal with Respondent on April 22, 2021. Mr. Smith responded with a letter dated May 4, 2021, denying Ms. Leauanae’s appeal and affirming the records officer’s April 5, 2021 decision. Ms. Leauanae filed an appeal with the Committee on June 2, 2021 and the appeal was assigned Appeal # 2021-78.

Because both appeals involve the same parties and arise from the same incident, the Committee heard both appeals in a hearing held on July 8, 2021. Both parties were allowed to present evidence and legal arguments at the hearing. After carefully considering the parties’ arguments and the evidence presented, 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. Records concerning a current employee with a governmental entity, including performance evaluations, are generally private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(a). This classification does not include records that are public under Utah Code § 63G-2-301(2)(b) (name, gender, gross compensation, job title, job description, etc.) or records that are private pursuant to Utah Code § 63G-2-301(1)(b) (records containing data on individuals describing medical data).

3. The Committee reviewed in camera the record responsive to Ms. Leauanae’s records request in Appeal #2021-20. The Committee determined that the record is not a personnel record pursuant to Utah Code § 63G-2-302(2)(a), but instead can be characterized as a document detailing Principal Erickson’s gathering of information regarding the October 27, 2020 incident. The Committee found that based upon the information contained within the record, the record should be classified as a public record and released to the public.

4. A governmental entity may charge a reasonable fee to cover the governmental entity’s actual cost of providing a record. Utah Code § 63G-2-203(1). A governmental entity may fulfill a record request without charge and is encouraged to do so if it determines that: (1) Releasing the record primarily benefits the public rather than a person; (2) The individual requesting the record is the subject of the record, or an individual specified in Utah Code § 63G-2-201(1) or (2); or (3) The requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious. Utah Code § 63G-2-203(4)(a-c).

5. A person who believes that there has been an unreasonable denial of a fee waiver under Utah Code § 63G-2-203(4) may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under Utah Code § 63G-2-205. Utah Code § 63G-2- 203(6)(a). The adjudicative body shall consider the reasonableness of the governmental entity’s denial of the fee waiver and any determinations made under Utah Code § 63G-2- 203(4). See, Utah Code § 63G-2-203(6); Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶¶ 52 & 53, 435 P.3d 179, 188-189.

6. In the present case, Ms. Leauanae argued that Respondent’s fee waiver denial should be overturned because: (1) The $168.75 fee is unreasonable; (2) Most of the documents provided in Appeal #2021-78 had already been previously provided by Respondent; (3) Ms. Leauanae and her daughter were the subjects of the record; and (4) Release of the record would primarily benefit the public.

7. When determining the reasonableness of a governmental entity’s decision denying a request for a fee waiver, the reviewing body should assess “whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver.” Jordan River, 2018 UT at ¶ 53, 435 P.3d at 189. GRAMA gives a governmental entity discretion in its decision regarding requests for a fee waiver (“[a] governmental entity may fulfill a record request without charge”) and only “encourages but does not mandate an entity to waive its costs when a request benefits the public.” Id at ¶ 24, at 185.

8. After having reviewed Ms. Leauanae’s request for a fee waiver and Respondent’s decision, the Committee finds that Respondent’s denial of Ms. Leauanae’s request for a fee waiver was not an unreasonable denial. Although Ms. Leauanae and her daughter were the subjects of the records, this by itself does not mandate the granting of a fee waiver. Additionally, it appears that based upon the evidence presented to the Committee, release of the records would primarily benefit Ms. Leauanae and not the public. Accordingly the Committee finds that Respondent properly considered the statutory factors for a fee waiver found in Utah Code § 63G-2-203(4)(a-c) and therefore, Respondent’s denial of Ms. Leauanae’s request for a fee waiver was a reasonable denial.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Nimo Leauanae, 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 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 19 day of July 2021

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee