State Records Committee Appeal Decision 2022-46

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

IAN COOPERSTEIN, Petitioner, v.

UNIVERSITY OF UTAH, Respondent.

DECISION AND ORDER

Case No. 22-46

By this appeal, Ian Cooperstein (“Petitioner”), seeks access to records alleged to be held by the University of Utah (“Respondent”).

FACTS

On or around July 16, 2020, Petitioner submitted request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested records relating to a former employee of Respondent’s (referred to hereafter as “J.G.”) in three areas: “Documentation about [J.G.’s] early 2020 termination, [m]aterials related to his 2018 promotion, and information about the tuition assistance amounts and dates that he received.”

In a response dated May 3, 2022, Respondent notified the Petitioner that they performed a thorough search of its files and were unable to locate any records pertaining to his request for “documentation about [J.G.’s] early 2020 termination, materials related to his 2018 promotion.” In regard to Petitioner’s request for “information about the tuition assistance amounts and dates that J.G. received,” Respondent denied the request, claiming the records were classified as “private” under numerous statutes (Utah Code §§ 63G-2-302(2)(a); 63G-2-302(1)(a); 63G-2-302(2)(d); as well as 20 U.S.C. § 1232g; 34 C.F.R. § 99, and Utah Code § 63G-1-107(2)). Petitioner appealed this decision to Todd Samuelson, the Chief Administrative Officer (“CAO”), who upheld the denials.

Petitioner appealed the CAO’s decision to the Utah State Records Committee. On October 13, 2022, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, oral testimony, and oral 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

This appeal concerns the CAO’s denial of three requests. The first is Petitioner’s request for records relating to tuition assistance given to J.G. The second is the request for records concerning J.G.’s 2018 promotion. The third is for records pertaining to J.G.’s termination.

A. Records Request for Tuition Assistance

Utah Code § 63G-2-201(1)(a) allows a person to inspect a public record free of charge. However, if a record is governed by the Family Educational Rights and Privacy Act, 34 C.F.R. Part 99 (“FERPA”), then the GRAMA defers to those regulations for the record’s disclosure. Utah Code § 63G-2-107(2). In order to determine whether a sought-after record is governed by FERPA, we must look to that law for guidance.

Code of Federal Regulations, Title 34, Subpart D, § 99.30 prohibits the disclosure of “educational records” without the signed consent of the student. “Educational Records,” in turn, is defined as “records that are (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.” 34 C.F.R. § 99.3. Thus, as J.G. was a student and an employee of the University of Utah, Petitioner’s request for records of tuition assistance for J.G. clearly constitute “educational records” as they pertain directly to his matriculation and are maintained by the University of Utah.

However, Petitioner points to the exception listed in § 99.3 that states the term “Educational Record” does not include “records relating to an individual who is employed by an educational agency or institution, that: (A) are made and maintained in the normal course of business; (B) relate exclusively to the individual in that individual’s capacity as an employee; and (C) are not available for use for any other purpose.” 34 C.F.R. § 99.3. Respondent argues that J.G.’s tuition records pertaining to his enrollment as a student are housed not within his employment records but his student records. This, Respondent argues, makes the tuition records fit squarely within the definition of “Education Records” as they have nothing to do with this employment and, therefore, do not trigger the employment exception.

The Committee agrees with Respondent regarding the requested tuition records. Because the records pertain to Mr. Gomez’s enrollment as a student and not as an employee, the records do not relate exclusively to his capacity as an employee. Therefore, FERPA does apply and its regulations govern the disclosure of the requested records. Because FERPA governs the disclosure of the requested records, we need not address Respondent’s own classification of the records under the GRAMA.

B. Records Regarding the 2018 Promotion and 2020 Employment Termination

In regard to Petitioner’s request for records relating to the 2018 promotion and 2020 employment termination we address them together. Respondent denied both requests on the grounds that no such records exist – that Petitioner’s request is based on “erroneous assumptions and false statements” about the potential records. And in response to the termination records, Respondent goes on to argue that employment records are private and cannot be disclosed anyway. Respondent points to the GRAMA to support this contention, saying in its written Statement of Facts that “[r]ecords of an employee’s departure are only public when there have been ‘formal charges or disciplinary actions’ against the employee, all time periods for an administrative appeal have expired, and the charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o). In contrast, records of an employee’s resignation are not public. No responsive records exist in this case because there was no termination of employment.”

Naturally, we cannot compel the disclosure of records that do not exist. If a promotion didn’t occur in 2018 and an involuntary termination didn’t occur in 2020, we must affirm the Respondent’s denial, but due to the history of the parties and the volumes of GRAMA requests currently filed regarding J.G.’s employment, we will take the opportunity to briefly explain the GRAMA as it pertains to employment records. Our hope in doing so is that it will resolve potential issues we foresee arising about Petitioner’s pending records requests and minimize the parties’ need to expend resources on appeals.

The GRAMA affirms that “[a] record is public unless otherwise expressly provided by statute,” (Utah Code § 63G-2-201(2)) and is therefore open to inspection under Utah Code § 63G-2-201(1)(a). Only the records specifically classified as “private,” “controlled,” or “protected” under Sections 63G-2-302, 63G-2-303, 63G-2-304, and 63G-2-305 are deemed not public, as well as records that are protected by other statutes like FERPA, for example. Utah Code §§ 63-G-201(4); 63G-2-203(a)-(b). Therefore, to determine if a public employee’s employment records are private, we must look to the code section(s) the GRAMA specifically references to determine if employment records are named as private, as well as any code sections that declares them to be public records.

First, we note that the GRAMA does not hold all public employee employment records as private. The GRAMA expressly itemizes certain public employee records as public and, therefore, open to disclosure. Utah Code § 63G-2-301(2)(b) states that “the name, gender, gross compensation, job title, job description, business address, business email address, business telephone number, number of hours worked per pay period, dates of employment, and relevant education, previous employment, and similar job qualifications of a current or former employee or officer of the governmental entity . . . “ are generally public records. Also § 63G-2-301(3)(o) states that if the requested records are not restricted under GRAMA codes, “records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee” are also normally public as long as “the disciplinary action has been completed and all time periods for administrative appeal have expired; and the charges on which the disciplinary action was based were sustained.” From these two code sections alone, we see that the GRAMA does not create a blanket protection over a state employee’s employment records.

With that in mind, we next examine the specific types of employment files that the GRAMA expressly shields from disclosure. To do this, we look at the code sections the GRAMA instructs us to: 302, 303, 304, and 305, for unless the employment records are specifically named in any of those sections, the records in question are deemed public. Utah Code § 63G-2-201(4).

Section 63G-2-303 concerns the records of “at-risk” government employees which is inapplicable to Petitioner’s request. And sections 304 and 305 do not specifically itemize a regular public employee’s records under their protective classifications. However, Section 302 does list certain employment records that constitute a “private” classification – specifically, three types.

First, subsection 302(1)(g) states that “employment records concerning a current or former employee of, or applicant for employment with, a governmental entity that would disclose the individual’s home address, home telephone number, social security number, insurance coverage, marital status, or payroll deductions” are deemed private. Utah Code § 63G-2-302(1)(g). Second, a state employee’s drug or alcohol test records under § 63A-17-1004 are also private. Utah Code § 63G-2-302(1)(dd). And finally, “if properly classified by a governmental entity: records concerning a current of former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, but not including records that are public under Subsection 63G-2-301(2)(b) or 63G-2-301(3)(o) or private under Subsection (1)(b).” Utah Code § 63G-2-302(2)(a) (emphasis added). Thus, under the GRAMA only three specific types of employment records are classified as private by statute with the third being private only so far as the governmental custodian of the records itself has properly classified the records as such. The parties should note that this is obviously far from the notion that employment records in general are private.

Additionally, and noteworthy to this appeal, absent another statute that prohibits their disclosure, the GRAMA does not name employment termination records as a “private,” “protected,” or “controlled” record. It appears to this Committee that this appeal is based on the assumption that Petitioner’s was specifically requesting records of involuntary termination. Despite the framework of his request, his actual petition did not qualify involuntary or voluntary termination. Therefore, insofar as Petitioner appeals the denial of involuntary termination records, again, we cannot compel the disclosure of records that do not exist.

It is on this point that we offer a final note of recommendation to the parties. With roughly 200 GRAMA requests filed by Petitioner, we believe the resources of the parties would be saved if communicative efforts were made to clarify Petitioner’s requests. While we acknowledge that Respondent has no statutory obligation to seek clarification on his request, we remind it that Petitioner is a member of the public and should not be penalized for wording his requests short of 100% precision. The legislature has been clear that the GRAMA should be read by governmental entities, this Committee, and the courts upon judicial review “to promote the public’s right of easy and reasonable access to unrestricted public records,” to “prevent abuse of confidentiality by governmental entities by permitting confidential treatment of records only as provided in this chapter,” and “favor public access when, in the application of this act, countervailing interests are of equal weight.” Utah Code § 63G-2-102(3)(a), (c), & (e) (emphasis added).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Ian Cooperstein, as it pertains to J.G.’s 2020 involuntary termination, 2018 termination, and tuition assistance 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 24 day of October 2022

BY THE STATE RECORDS COMMITTEE

KENNETH R. WILLIAMS

Chair, State Records Committee