State Records Committee Appeal Decision 2023-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COURTNEY TANNER on behalf of The Salt Lake Tribune, Petitioner, v.

UTAH STATE UNIVERSITY, Respondent

NOELLE CROCKETT, Intervenor

DECISION AND ORDER

Case No. 23-08

By this appeal, Courtney Tanner (“Petitioner”), requests records allegedly held by Utah State University (“Respondent”). By and through counsel, Noelle Crockett intervenes.

FACTS

On November 15, 2022, the Petitioner submitted a records request to Respondent under the Government Records Access Management Act (“GRAMA”) seeking “any emails sent by President Noelle Crockett from [ ] Nov. 10 [2022], to [ ] Nov. 15 [2022], about her possible departure or the football/athletic program at USU.”

On November 22, 2022, Respondent denied the request on the basis that personal communications prepared by an employee of a governmental entity in a personal capacity and unrelated to the public’s business are not public records under the GRAMA. From this, Respondent informed Petitioner that it did not have any responsive records.

Petitioner appealed to Respondent’s chief administrative officer (“CAO”) on November 22, 2022, clarifying that she is not requesting personal communications, but emails Ms. Cockett sent from her official Utah State University email address about her possible departure or the football/athletics program at the University. Petitioner argued that both her official University email account and the subject matter of Ms. Cockett’s job and the athletics program fit squarely under the GRAMA’s definition of what constitutes a public record. However, on December 6, 2022, the CAO denied the appeal and affirmed Respondent’s decision that relevant emails were not public records due to their personal nature.

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

The issue before us is whether the emails Ms. Cockett sent from November 10, 2022, through November 15, 2022, concerning her departure from the University or the football and athletics program were a public record subject to disclosure under the GRAMA.

The GRAMA provides that “a person has the right to inspect a public record free of charge . . .” Utah Code § 63G-2-201(1)(a). Thus, for the GRAMA to apply to any records request, a governmental entity must first determine whether the records being sought are public records. Whether a record is public and subject to disclosure is a question of definition. In defining “”record,” the GRAMA makes clear what it is and what it is not. Within its definitional section, Subsection 103(22)(b) states:

(b) “Record” does not mean:
(i) A personal note or personal communication prepared or received by an employee or officer of a governmental entity;
(a) in a capacity other than the employee’s or officer’s governmental capacity; or
(b) that is unrelated to the conduct of the public’s business.”

Utah Code § 63G-2-103(22)(b)(i)(A)-(B).

Thus, if a personal communication is sent by government employee in her official capacity and concerns the public’s business, the communication would be a public record subject to disclosure under the GRAMA. However, if the communication is made either in a non-official capacity, or if it does not concern the public’s business, then the communication would not be a record subject to disclosure.

At the hearing, Respondent proffered the requested emails for the Committee’s review. Upon motion, the Committee voted to view the emails in camera to determine the issue. In a closed session, the Committee examined the emails and found them to not be sent in an official capacity, nor concern the public’s business. Accordingly, the Committee found that the emails Ms. Cockett sent from November 10, 2022, through November 15, 2022, were not public records subject to the GRAMA’s disclosure requirements.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby DENIED, as the emails sought are not records. 

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