State Records Committee Appeal Decision 2022-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JONATHAN BEJARANO, Petitioner, v.

UTAH STATE BOARD OF EDUCATION, Respondent.

DECISION AND ORDER

Case No. 22-11

On February 17, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. See, Bejarano v. Utah. St. Bd. of Edu., State Records Committee Case No. 22-07 (Feb. 28, 2022). The Committee voted to review the disputed records in camera. However, an attachment to one of the e-mail records could not be reviewed by the Committee during the hearing. Accordingly, the Committee voted unanimously to continue the hearing until the next available hearing date in order to allow Respondent to provide the attachment to the Committee for review.

FACTS

On or about September 27, 2021, Mr. Bejarano made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from the Utah State Board of Education (“USBE”). In his request, Mr. Bejarano, asked for "all e-mails on Board Member Cline's gmail" from August 26, 2021 to September 29, 2021 that include one or more of the keywords "uea, critical race theory, crt, Johnson, Senator, Representative, Christiansen or UPU." USBE denied the request on September 29, 2021, stating "under Utah law, in order for an email to be a record, to which the public has a right of access, the email must be prepared, owned, received, or retained by a government entity. USBE did not prepare the emails in question, nor does the agency own, receive, or retain the emails in questions." The request was denied under Utah Code §63G-2-103(22).

An appeal filed by Mr. Bejarano was received by the Committee on October 19, 2021. On March 17, 2022 after having considered the written materials, oral testimony, and oral arguments of the parties and after reviewing the documents in camera, 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. USBE submitted three documents to the Committee for in camera review that were responsive to Mr. Bejarano’s records request. The first document is a copy of an e-mail. The Committee finds that this document is a public record but subject to the following restrictions: (1) The names in the “to” and “from” portion of the e-mail should be redacted because this information is private pursuant to Utah Code § 63G-2-302(1)(n); and (2) The attachment is a protected record pursuant to Utah Code § 63G-2-305(22) because it is a draft. The Committee finds that the second document is a public record. The Committee also finds that the third document including the attachment is a public record, but the names in the “to” and “from” portion of the e-mail should be redacted pursuant to Utah Code § 63G-2-302(1)(n).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Jonathan Bejarano, 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 28 day of March 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R WILLIAMS
Chair, State Records Committee