State Records Committee Appeal Decision 2022-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

THOMAS SWETT, Petitioner, v.

UNIVERSITY OF UTAH, Respondent.

DECISION AND ORDER

Case No. 22-13

By this appeal, Petitioner, Thomas Swett, seeks access to records allegedly held by Respondent, University of Utah.

FACTS

On October 6, 2021, Mr. Swett submitted a request for records under the Government Records and Access Management Act ("GRAMA") to Respondent. Mr. Swett requested the following records from Respondent’s Health Gastroenterology Endoscopy Center and Liver Clinic (“Clinic”) between September 1, 2021 through September 30, 2021: (1) The full name, first and last, of each employee who worked a shift on each day; (2) The start time and end time of the shift for each fully named employee on each day; and (3) The team, position, assignment, role, and/or area of responsibility of each fully named employee who worked a shift on each day.

On October 15, 2021, the Director of Administration for Respondent denied Mr. Swett’s records request. Regarding the first two requests, the requested records were classified as protected and private under GRAMA because disclosure of them "would jeopardize the life or safety of an individual" and would constitute a clearly an unwarranted invasion of personal privacy pursuant to Utah Code §§ 63G-2-305(11) & -302(2)(a) & (d). Concerning Mr. Swett’s third request, Respondent denied the request stating that it was not required to create a record in order to fulfill a records request pursuant to Utah Code § 63G-2-201(8)(a) & (b).

In a letter dated October 22, 2021, Mr. Swett appealed the denial to Respondent’s Administrative Manager to the Records Officer. Mr. Swett argued that Respondent “has chosen to unlawfully deny access to all of the records requested.” Mr. Swett further argued that the response to his records request “demonstrated both an ignorance of the law and an arrogance about its duties under the law.”

After no response was provided by Respondent to Mr. Swett’s appeal within 10 business days, on November 10, 2021, Mr. Swett filed an appeal with the State Records Committee (“Committee”) pursuant to Utah Code §§ 63G-2-401(5)(b)(i) & -402(1)(a)(i). On April 21, 2022, the State Records Committee (“Committee”) held a hearing where the parties were allowed to present their evidence and legal arguments. 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. The Utah Legislature enacting GRAMA recognized the constitutional right of the public to access information concerning the conduct of the public’s business. Utah Code § 63G-2-102(1)(a). The Legislature also recognized a public policy interest in allowing a government to restrict access to certain records as specified in GRAMA “for the public good.” Utah Code § 63G-2-102(2).

3. Records the disclosure of which would jeopardize the life or safety of an individual are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(11).

4. Records concerning a current or former employee of a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, are private records if properly classified by a governmental entity but not including records that are public under Utah Code §§ 63G-2-301(2)(b) or -301(3)(o), or private under -302(1)(b). Utah Code § 63G-2-302(2)(a).

5. Records concerning data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are considered private records if properly classified by a governmental entity. Utah Code § 63G-2-302(2)(d).

6. Respondent provided background information regarding Mr. Swett’s records request in its written statement of facts to the Committee. According to the statement, sometime in September 2021 in conjunction with the scheduling of a procedure that would involve sedation, an employee of the Clinic told Mr. Swett that patients to the Clinic must arrange for a ride home with a trusted family member or friend following the procedure. Clinic policy did not allow release of a patient to the care of a bus, shuttle, taxi, or other public transportation. Mr. Swett “was apparently upset with or otherwise disagreed with this policy and/or the employee who delivered this message to him.”

7. Even though Mr. Swett disagreed with the Clinic’s policy, Respondent claims that Mr. Swett was “determined to track down the employee he spoke with” which is the basis for his records request. After Respondent’s Director of Support Services (“Director”) “looked into the issue,” the Director “expressed concern for that employee’s safety.” Respondent’s counsel contended:
Considering the highly charged emotions and uptick in threatening behavior directed toward hospital and clinic employees…and [the Director’s] specific concerns regarding Swett’s motivation to learn the identity and schedule of the Clinic employee he spoke with regarding the Clinic policy, [the Director] and [Respondent] believe keeping the Clinic’s employees’ schedules and shift start and end times protected is necessary to protect their safety.

8. After having carefully considered the arguments of the parties including the testimony given by Mr. Swett at the hearing concerning the events during September 2021, the Committee upholds the classification by Respondent for Request #’s 1 & 2 finding that the requested records were properly classified as protected and private pursuant to Utah Code §§ 63G-2-305(11) & -302(2)(a) & (d). Respondent appears to have withheld access to the records out of a legitimate concern for the potential safety of Respondent’s employees, which in this particular case is of greater governmental interest than any alleged general public interest in having access to the requested records.

9. In response to a records request pursuant to GRAMA, a governmental entity is not required to: (1) Create a record; (2) Compile, format, manipulate, package, summarize, or tailor information; or (3) Provide a record in a particular format, medium, or program not currently maintained by the governmental entity. Utah Code § 63G-2-201(8)(a-c).

10. The Committee agrees with Respondent’s finding that Mr. Swett’s third request “appears to seek information rather than records.” The Committee is persuaded by Respondent’s argument that it “does not maintain any single record that provides all of the dates you seek in your request, which means that [Respondent] cannot fulfill your request without creating a record or undertaking substantial compilation, manipulation, and tailoring of information.” Accordingly, the Committee finds that Respondent was not required to fulfill Mr. Swett’s third request pursuant to Utah Code § 63G-2-201(8)(a-c).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Thomas Swett, 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 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 2 day of May 2022

BY THE STATE RECORDS COMMITTEE

KENNETH R WILLIAMS
Chair, State Records Committee