State Records Committee Appeal Decision 2023-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JARED PELA, Petitioner,v.

SALT LAKE CITY SCHOOL DISTRICT, Respondent,

DECISION AND ORDER

Case No. 23-03

By this appeal, Jared Pela (“Petitioner”), request records allegedly held by the Salt Lake City School District (“Respondent”).

FACTS

Petitioner’s son attends an elementary school within the Respondent’s district. The elementary school utilizes a cloud-based software called “PowerSchool” that allows for students, teachers, and parents to sign in and submit and retrieve records and information pertaining to an individual student. Such records stem from academic records to parent records and authorizations. Students and parents have their own individual accounts that are linked so that the parent can view their child’s academic records and engage with their child’s teachers.

On August 8, 2022, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking all records of access for his specific parent portal, all information pertaining to any modifications of his parent portal, including additions, deletions, and changes to his individual portal, and all attendance records for his son. The date range for responsive records was August 15, 2020, to August 8, 2022.

The Respondent replied on August 22, 2022, stating that it was sending Petitioner all the responsive records in its possession. The Respondent sent Petitioner all the requested attendance records for his son; however, the request for records relating to his parent portal was only partially fulfilled. The Respondent informed him that “records of access for the online parent portal are archived and no longer accessible when the system is upgraded, so those records only go back to the Spring of 2022.” Within the delivered portal records some documents contained redactions.

The Petitioner appealed to the Respondent’s chief administrative officer (“CAO”), arguing that archived records can be unarchived and delivered to him, and that the redactions were improper. In response, the CAO responded, agreeing that there was no basis to redact the requested records from him. The CAO further clarified that the Respondent searched its archives and found no responsive records relating to the portal request that predated February 27, 2022.

The Petitioner now appeals to the State Records Committee (“Committee”), challenging the decision and lack of record production. On January 19, 2023, 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

The GRAMA states that a person “has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours . . . .” Utah Code § 63G-2-201(1)(a). While the GRAMA requires that an individual identify the records he seeks with “reasonable specificity,” it does not set a clear standard for the governmental entity on how to conduct its search. Utah Code § 63G-2-201(7)(b). When a lack of clarity arises within the GRAMA, our Utah case law supports looking to the Freedom of Information Act for guidance. See e.g., Deseret news Pub. Co. v. Salt Lake County, 2008 UT 26, ¶45 (analyzing the GRAMA’s text against the FOIA’s as they relate to records that could reasonably be expected to interfere with investigations).

Under the FOIA, when a governmental entity receives a records request, its search must be reasonable with the reviewing court looking at the entity’s process, not the result. Trentadue v. F.B.I., 572 F.3d 794, 797-98 (10th Cir. 2009) (citing Weisberg v. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The issue we must review is not whether remaining records may exist, but whether the entity’s search efforts were adequate. Weisberg, at 1351. If the search is challenged by the records requester, the governmental entity then bears the burden of showing that the search was reasonable. See Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir.1990). And “reasonableness” is dependent on the circumstances in the case. Weisberg, at 1351. If it’s determined that the governmental entity performed a reasonably adequate search, our Utah Administrative Rules then require the requester to provide sufficient evidence that additional records exist and are in the entity’s possession. Utah Administrative Rule R35-2(2).

In this case, the records at issue concern Petitioner’s PowerSchool parent account. While Petitioner received some responsive records concerning the changes to his parent PowerSchool account, the Respondent could not locate records of his parent account prior to February 2022. The reason centers on the Respondent storing records on its own server, and for whatever reason, not being able to locate the requested records in its database or archives. Once the Respondent informed Petitioner that it could not locate any additional records responsive to his request, Petitioner appealed to the Respondent’s CAO. Throughout the course of Petitioner’s GRAMA request, including the pendency of his CAO appeal and several weeks thereafter, the Respondent made the following efforts to fulfill Petitioner’s request:

1. The Respondent’s Chief Information Officer, Sam Quantz, searched through its database and servers for responsive records upon receiving Petitioner’s GRAMA request.

2. On September 27, 2022, the Respondent participated in mediation with Petitioner in effort to demonstrate to him that it had exercised due diligence and good faith in turning over all responsive documents it could locate.

3. On October 27, 2022, the Respondent provided to Petitioner a notarized affidavit signed by Mr. Quantz indicating that he had searched the Respondent’s active and archived systems for all responsive records and that any responsive records found had been turned over to Petitioner.

4. On October 18, 2022, Mr. Quantz contacted PowerSchool support and discussed with them how to find any remaining responsive records that predate February, 2022. Powerschool support confirmed that Mr. Quantz had identified all possible locations in which to search for any existing responsive records.[1]

5. On October 20, 2022, the Respondent sent to Petitioner a copy of the chat log for Mr. Quantz’s October 18th support discussion with PowerSchool.

6. On November 8, 2022, Mr. Quantz again contacted PowerSchool support to clarify that PowerSchool itself holds no parent portal data on its own servers – that all of Petitioner’s parent portal data and records would be on the Respondent’s own servers. PowerSchool confirmed that to be the case under its contract with the Respondent.

7. In the conversation, Mr. Quantz asked several questions to confirm the authorization, access, and ability PowerSchool may have to parent portal data held on the Respondent’s servers. PowerSchool support confirmed that all data and records were exclusively contained on the Respondent’s servers.

At the hearing, Mr. Quantz testified that he expended thorough time and effort in exploring the problem with PowerSchool support to ensure that all possible locations for the requested records had been searched. Evidence shows that Mr. Quantz had at least one conversation with PowerSchool support and made search efforts for Petitioner’s records at 10:19 p.m., well beyond his regular work hours in his governmental capacity. We find these efforts commendable.

We see no evidence that either the Respondent or Mr. Quantz were unreasonable in their search efforts or derelict and unprofessional in their duty to Petitioner under the GRAMA. We are satisfied that a reasonable search was conducted.

In determining that a reasonable search was performed, the burden shifts to Petitioner to show that additional responsive records are on the Respondent’s possession. Utah Administrative Rule R35-2(2). Although possible inferences could be made regarding certain lower level personnel with direct connections to Petitioner’s account, these are speculative. We don’t see any direct evidence that the Respondent still holds responsive records in its possession. Accordingly, we find that the Respondent has satisfied its duty under the GRAMA.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal 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 30 day of January 2023

BY THE STATE RECORDS COMMITTEE
Nancy Dean
Chair pro tem, State Records Committee

1. We note that Mr. Quantz testified at the hearing that he shared his screen with PowerSchool support to collaboratively navigate the Respondent’s server in search of archived and responsive records.