State Records Committee Appeal Decision 2022-16

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

IAN COOPERSTEIN, Petitioner, v.

UNIVERSITY OF UTAH, Respondent.

DECISION AND ORDER

Case No. 22-16

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

FACTS

On May 15, 2021, Mr. Cooperstein made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from Respondent, the University of Utah (“University”). Mr. Cooperstein requested access to correspondence between human resources for the University and two people regarding a complaint he had previously filed. On January 18, 2022, the University provided Mr. Cooperstein with copies of all responsive records it was able to locate except for an email thread classified protected pursuant to Utah Code 63G-2-305(17). The University also provided a record with redactions of the personal cell phone number of a University employee pursuant to Utah Code § 63G-2-302(2)(a) & (d).

On January 19, 2022, the University received Mr. Cooperstein’s appeal wherein he alleged that three groups of records were “missing” from the University’s response. In a letter dated February 2, 2022, Todd Samuelson, Chief Administrative Officer and GRAMA Appeals Officer for the University, stated that in “review of the request our office found that the University responded appropriately.” Mr. Samuelson upheld redactions of portions of the requested records were properly withheld because they were subject to the attorney client privilege, and that the redactions made concerning personal information about University employees were proper.

Mr. Cooperstein filed an appeal with the State Records Committee (“Committee”). On May 19, 2022, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, testimony, and arguments of the parties. After having carefully considered all evidence presented to the Committee, 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 that are subject to the attorney client privilege are protected records pursuant to Utah Code § 63G-2-305(17).

3. Based upon the evidence and the presentations by the parties, the Committee is convinced that the University did a thorough search for records responsive to Mr. Cooperstein’s records request. The Committee also finds that the email thread with legal counsel for the University concerning a risk assessment related to the potential termination of a University employee, was properly classified as “protected” pursuant to Utah Code § 63G-2-305(17) because the information is covered by the attorney client privilege, and therefore, is not subject to disclosure.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ian Cooperstein, 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 31 day of May 2022

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS
Chair, State Records Committee