State Records Committee Appeal Decision 2023-06

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COREY COLEMAN, Petitioner, v.

VERNAL CITY, Respondent,

DECISION AND ORDER

Case No. 23-06

By this appeal, Corey Coleman (“Petitioner”), requests records allegedly held by Vernal City (“Respondent”).

FACTS

On June 27, 2022, Petitioner, a former employee of Respondent, submitted a request to his former employer for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the timecards of Matt Tate, a current employee of Respondent and former associate of Petitioner, for the date range of November 1, 2021 through February 1, 2022.

In response, Respondent informed Petitioner that only an employee’s name, gender, gross compensation, job title, job description, business address, business email address, business telephone number, number of hours worked per pay period, and dates of employment were considered public record under the GRAMA. The records officer delivered Mr. Tate’s payroll history for the requested dates showing the total hours worked and the gross compensation for each pay period. However, because the actual timecards contained information that fell outside of the GRAMA’s public records provision, such as specific dates where Mr. Tate took vacation and sick leave, as well as other personal information, the records officer classified the actual timecards as “private” under the GRAMA and withheld them. Petitioner appealed this response to Respondent’s chief administrative officer, who upheld the decision.

During the pendency of this appeal, Respondent offered Petitioner timecards but with redactions that made visible only the total hours worked per pay period. Petitioner declined this offer and maintained his original records request: Mr. Tate’s unredacted timecards for the specified timeframe that showed the exact dates he worked, the number of hours he worked per day, and the time he took off from work due to vacation and sick leave. The parties failed to reach an agreement.
Petitioner now appeals to the State Records Committee (“Committee”), challenging Respondent’s decision. On February 16, 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

This appeal presents the Committee with the question of whether a Mr. Tate’s timecards are subject to disclosure under the GRAMA, and what role the redactions play in their disclosure.

The GRAMA maintains 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). Thus, properly determining whether a record is a “public” record or not is dispositive. For records concerning government employees, Section 301(2)(b) provides that “[t]he following records are public except to the extent they contain information expressly permitted to be treated as confidential under the provisions of Subsections 63G-2-201(3)(b) and (6)(a): . . . (b) 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, . . . .” Utah Code § 63G-2-301(2)(b). However, notwithstanding that employment information being a public record, those records may be restricted if it is properly classified as a “private” record. Utah Code § 63G-2-201(5)(a). In the event that a record is properly classified as “private,” the record may be disclosed if “the interests favoring access are greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-201(5)(b).

At the hearing, the Committee voted to view the unredacted timecards in camera in order to assess whether the redactions were legally proper. In seeing the information Respondent redacted, we now analyze the propriety of the redactions.

Section 301(2)(b) is one of few provisions within the GRAMA that speaks directly to records concerning a government employee. Pertinent to the case before us, that section states that the “number of hours worked per pay period” are public records “except to the extent they contain information expressly permitted to be treated confidentially under the provisions of Subsections 63G-2-201(3)(b) and (6)(a).” Utah Code § 63G-2-301(2). In turn, Subsections 201(3)(b) and (6)(a) provide that records restricted pursuant to court rule or other statutes or regulations are not public records and may be disclosed only in accordance with those governing court rules, statutes, or regulations. We are satisfied that no rules or laws pertain to the timecards before us outside of the GRAMA, and therefore find that the total hours Mr. Tate worked per pay period is a public record under Subsection 301(2)(b).

However, Petitioner argues that, despite their absence from Subsection 301(2)(b), by virtue of Mr. Tate’s status as a government employee, the exact dates Mr. Tate worked, the number of hours he worked on those dates, and the time off from work he took within the requested period – the exact records he seeks – are also public records under the GRAMA. But Respondent disputes that notion, arguing that such information is private. [1]

In determining whether a government employee’s timecard showing the days the employee worked each pay period, the number of hours worked per day, and the time taken off from work is a public record, we look closely at the legislative intent behind the GRAMA. As we have already noted, the GRAMA does specifically address government employees’ information and expressly outlines which of that information is public. See Utah Code § 63G-2-301(2)(b). We find this to be highly persuasive in our statutory interpretation.

The law presumes that when it comes to the language of a statute, “absent a contrary indication, that the legislature used each word advisedly.” McKitrick v. Gibson, 2021 UT 48, ¶ 37 (citing Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14. In addition, the canon of construction, expression unius est exclusion alterious – a long used legal tool in interpreting statutes – holds that “to express or include one thing implies the exclusion of the other, or of the alternative.” Expressio unius est exclusion alterius, BLACK’S LAW DICTIONARY (11th ed. 2019); see also Carrier v. Salt Lake County, 2016 UT 48, ¶ 10 (“we ‘presume[ ] that the expression of one [term] should be interpreted as the exclusion of another.’ We therefore seek to give effect to omissions in statutory language by presuming all omissions to be purposeful.” (Citing Carrier v. Salt Lake Cnty., 2004 UT 98, ¶ 30.)) Thus, in determining what constitutes a public record in the context of government employment, because the legislature deliberately expressed numerous items in Subsection 301(2)(b), but omitted dates worked, hours per day worked, and time taken off from work, we conclude that these omissions were deliberate and not intended to be public records.

In determining that the records Petitioner seeks are not public records per se under Subsection 301(2)(b), and seeing that dates worked, hours worked per day, and time taken off from work reveals an employee’s routine schedule away from home and his time being ill, we further conclude that to disclose such records does reach too far across the border of public employment and private matters. We find that the dates Mr. Tate worked, hours he worked per day, and his absences from work are all private information and to reveal those records under a GRAMA request would invade his privacy without a justifiable reason. To this, we have heard no evidence to persuade us that the interests favoring disclosing this personal information is equal to or greater than the interest in not disclosing it. Consequently, we determine that the redacted information on the time cards was properly classified as “private” under the GRAMA, and those redacted cards do satisfy Respondent’s duty under the law.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED. The information redacted from the timecards is proper under the GRAMA, and disclosing the redacted timecards satisfies Respondent’s duties under the Government Records Access and Management Act. 

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 February 2023

BY THE STATE RECORDS COMMITTEE

Kenneth Williams
Chair, State Records Committee

1. Respondent also raised the defense that due to a current criminal case against Petitioner, releasing detailed information about Mr. Tate’s work hours and time off could jeopardize his safety. However, despite this argument being included in Respondent’s Statement of Facts it provided to the Committee, no direct evidence was provided during the hearing to show that Mr. Tate is an “at risk government employee” under Section 63G-2-303(1)(a). Additionally, no direct evidence was offered to show that Mr. Tate’s safety is at issue if his work hours and time off were to be disclosed. Accordingly, we set aside Respondent’s argument on this point and do not consider it.