State Records Committee Appeal Decision 2023-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ANNA AND BRYAN BAGGALEY, Petitioners, v.

GRANITE SCHOOL DISTRICT, Respondent,

DECISION AND ORDER

Case No. 23-09

This matter comes again before the State Records Committee (“Committee”) after it was continued under our Decision and Order No. 23-05. Although the facts have not changed from how they are recited in that prior Decision and Order, we take the opportunity to give a brief recounting of the factual and procedural background that lead to the parties being before us once more.

FACTS

On April 21, 2022, Petitioners submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking records pertaining to Granger High School’s decision to remove Petitioner, Anna Baggaley, from her 2nd period US Government Class. Understanding the request to pertain more to records concerning the school’s investigation behind Anna’s removal from class, the Respondent denied the request on the grounds that responsive documents could not be released in the midst of a pending investigation.

After unsuccessfully appealing their request to the Respondent’s chief administrative officer, Petitioners found their way before the Committee on January 19, 2023. At that hearing, Petitioners provided a list of specific records they believed should be or were in the Respondent’s possession but not disclosed. To this, Mr. Horsley, in-house counsel for the Respondent, stated that it was the first time he had seen such a list of specifically requested records – that the language of Petitioner’s original GRAMA request was broadly directed to records related to an actual investigation and discrimination claims. Counsel for the Respondent took time during the hearing to address each specific record and his knowledge of whether it was disclosed. He concluded that, to his knowledge, some of the listed records had been disclosed, some could not be disclosed due to their status or classification under the GRAMA, some likely existed and could be disclosed, and some did not exist at all. From counsel’s claims, we found it appropriate that the Respondent be given an adequate opportunity to thoroughly review the list of specific records and then deliver any remaining responsive records. We ordered a continuance to grant the Respondent time to review, retrieve, and disclose any additional responsive records. Baggaley v. Granite School District, No. 23-05, Utah State Records Committee (2023).

Prior to the Committee reconvening this matter, the Respondent granted Petitioners access to 349 responsive documents via a One Drive link. However, Petitioners informed the Respondent they wanted the records in a different media. To this, the Respondent uploaded the 349 records to a physical thumb drive and delivered it to Petitioners, who stated many documents and links to documents were inaccessible or broken..

On February 16, 2023, the Committee reconvened this appeal to resolve Petitioners’ remaining grievances. 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

Petitioners claim that within the batch of records delivered, some records are inaccessible, as well as still outstanding. In turn, the Respondent, through its counsel, maintains that it has fully cooperated with Petitioners, delivered all responsive records in its possession and in accessible fashion, and that any outstanding records simply don’t exist. Therefore, the issue we are faced with is whether the Respondent’s efforts to produce responsive records are adequate under the GRAMA.

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).

Petitioners argue that the Respondent’s efforts to satisfy their request have been insufficient and fall below the GRAMA’s requirements. They testified that while they did receive records from the list they exchanged with the Respondent at the January 16, 2023 hearing (see Baggaley v. Granite School District, No. 23-05, Utah State Records Committee (2023)), some of those records were inaccessible through the shared drive the Respondent used to grant them access, and that other records are still missing.

The Respondent testified and showed to the Committee that it made multiple attempts to retrieve and deliver all responsive records from the January 16 list, and that all responsive records it had were uploaded to the shared and thumb drives and delivered to Petitioners. The Respondent maintains that any documents on the list that were not included in the delivery are non-existent.

We find that the Respondent’s search efforts have been reasonable, and that it has sought to cooperate with Petitioners and satisfy their requests. With that said, we understand Petitioners’ sentiment that because many electronic documents and links to others were not immediately accessible the Respondent has not cooperated in good faith. However, we see no evidence to support the notion that the Respondent is being uncooperative or is otherwise acting in bad faith. We acknowledge that in the last two hearings, the Respondent’s counsel has offered and extended invitations to personally meet with and assist Petitioners to ensure their request was satisfied. If Petitioners’ choose to decline those offers, regardless of how valid their frustration and lack of trust in the Respondent may or may not be, we don’t see this as a rational basis to penalize the Respondent for its search efforts and delivery.

Clearly, the Respondent has records that are for whatever reason currently inaccessible to Petitioners. During the hearing, counsel for the Respondent offered to print off the 349 records and make them available in hard copy format for Petitioners. But, beyond this, Petitioners’ have produced no evidence to show that other outstanding documents exist, remain in the Respondent’s possession, and are being withheld. Thus, in conjunction with its efforts to retrieve responsive records, the Respondent’s offer to ensure that petitioners receive the records they seek is satisfactory under the GRAMA and to the Committee. And while our decision satisfies the GRAMA request before us, we remind Petitioners that as they review the records they receive, if they see a need to seek additional documents from the Respondent, they may of course do so.

ORDER

THEREFORE, for the foregoing reasons, the Committee hereby ORDERS the following:

Because the Respondent has conducted a reasonable search for responsive records, and because Petitioners have produced no evidence of existent records other than those they cannot immediately access, the Respondent has satisfied its duties under the law. Notwithstanding the Respondent fulfilling those duties, it shall ensure access and delivery of the 349 responsive documents that it has already attempted to deliver to Petitioners and shall do so within two weeks of the date of this order.

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