State Records Committee Appeal Decision 2023-11

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

TIM McCONNEHEY, Petitioner, v.

JORDAN SCHOOL DISTRICT, Respondent.

DECISION AND ORDER

Case No. 23-11

By this appeal, Tim McConnehey (“Petitioner”), requests records allegedly held by Jordan School District (“Respondent”).

FACTS

When an individual is elected to the Jordan School District School Board, Respondent issues him or her an official government email address typically in the form of [first name].[last name]@jordandistrict.org to conduct and carry out their business and communications. Respondent is the server and administrator for these issued email addresses and can therefore retrieve emails from the server to respond to applicable Government Records Access and Management Act (“GRAMA”) requests. However, Board Member, Darrell Robinson, does not use an official government email address. Instead, he chooses to use his personal gmail address which, from the time of Petitioner’s initial GRAMA request through the date of this Decision and Order, has been and is listed on Respondent’s website next to his name, picture, position with the board, phone number, position with the board, district he represents, and term he is currently serving. Board Member Robinson is the only board member of the seven to have his personal email address listed on the webpage for public contact.

On September 22, 2022, Petitioner submitted a records request to Respondent pursuant to the GRAMA. In his request, Petitioner stated that Mr. Robinson “is using a personal Gmail account for government business. He has threatened to close West Jordan Elementary but will not share his records, costs, or any other information. . . . We want to access all emails about West Jordan Elementary.” Petitioner then provided the personal gmail account listed on Respondent’s website that Board Member Robinson has listed to conduct government business so that Respondent can retrieve responsive emails.

On October 3, 2022, Respondent replied to Petitioner’s request, informing him that because Respondent does not maintain emails from the gmail address he provided, it can produce no responsive records. Accordingly, Respondent denied Petitioner’s request.

Petitioner lodged an appeal with Respondent’s chief administrative officer (“CAO”) on October 13, 2022. In his appeal, Petitioner used orders previously issued by this Committee to argue that the emails held in Mr. Robinson’s personal gmail account were subject to disclosure under the GRAMA. He made clear to the CAO that he was not seeking personal communications, but only those relevant to his request. However, the CAO never responded to Petitioner’s appeal, thus constituting a formal denial under Utah Code § 63G-2-401(5)(b).

Petitioner has now appealed to the State Records Committee (“Committee”), challenging Respondent’s determination that it cannot retrieve and disclose the emails on Mr. Robinson’s personal gmail account. On March 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.

ISSUE FOR REVIEW

1. Whether Board Member Robinson’s emails are subject to disclosure under the GRAMA when the emails are sent and received from a private email address rather than a government email.

STATEMENT OF REASONS FOR DECISION

A main purpose of the GRAMA’s enactment was to recognize an important Constitutional right: “[T]he public’s right of access to information concerning the conduct of the public’s business.” Utah Code § 63G-2-102(1)(a). In so doing, the law states that “a person has the right to inspect a public record free of charge.” Utah Code § 63G-2-201(1)(a). This right, however, is conditioned on the records being “public records.” Naturally, the law imposes no right of access to private records held by an individual. See Id. Therefore, we begin our analysis with whether a government official’s email correspondences are public records.

A. Emails Can Be Public Records

It is generally well established that emails can be public records. In relevant part, Subsection 103(22)(a) states that a “record” can be a “letter, document, paper, . . . or other documentary material regardless of physical form or characteristics: (i) that is prepared, owned, received, or retained by a governmental entity or political subdivision . . . “ Utah Code § 63G-2-103(22)(a)(i) (emphasis added). Of course, an email is a letter in electronic form. Because Subsection 103(22)(a) makes the physical form of a letter immaterial, it is clear that the law considers an electronic letter – an email – a record. See generally., Southern Utah Wilderness Alliance v. Automated Geographic Reference Center, Division of Information Technology, 2008 UT 88, 200 P.3d 643 (requiring disclosure of all records requested which included emails); see also Ken Cromar v. City of Cedar Hills, Utah State Records Committee, Decision and Order 12-11 (June 25, 2012) (ordering the disclosure of emails upon payment of the fees charged to compile the emails). Establishing that emails are “records” under the GRAMA, we examine whether emails are public records when they are sent and received by a government official’s personal email account as opposed to his government account.

Petitioner relies on multiple cases that have come before the Committee involving personal communications to argue that the emails concerning West Jordan Elementary received and sent from Board Member Robinson’s personal gmail account are subject to disclosure in a GRAMA request. In Henderson v. San Juan County, Decision and Order 19-33, Utah State Records Committee, (Sept. 23, 2019), we determined that, depending on their content, the text messages sent by a county commissioner from his personal cell phone during a county commission meeting could constitute a public record since he was acting in his official capacity when he was texting. In that decision we declared that “it would be inappropriate for a public official to attempt to circumvent the requirements of [the Open Public Meetings Act] and GRAMA by using a private device while conducting the people’s business.” Id. (Internal quotations omitted.)

Later, in Allen v. Utah County, Decision and Order 21-36, Utah State Records Committee (June 21, 2021), the requester sought the text messages from an elected county commissioner’s personal cell phone as they related to potential development of Bridal Veil Falls. Although a personal cell phone was at issue, there was little question that communications about Bridal Veil Falls would be in connection with his official capacity as a county commissioner, and therefore, we determined that any such text messages were public records under the GRAMA.

While these previous decisions pertain to text messages, we see no difference in their application to a government official’s private email account. As our previous decisions demonstrate, it is not the ownership of the device or account that is dispositive to whether a communication is a public record; it is the context and content of those communications that trigger open records laws. As a result, we determine that in his capacity as a government official, Board Member Robinson’s emails are subject to disclosure if they contain the public’s business irrespective of which email account he uses.

B. Elected Officials’ Email Communications Are Subject to GRAMA

However, Respondent argues that even if Board Member Robinson’s private gmail account was subject to the GRAMA’s reach, the emails in question are not public records because he is an elected official. Respondent bases its argument on the GRAMA’s Subsection 301(2)(m) which states:

(2) The following records are public 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):

(m) for an elected official, as defined Section 11-47-102, a telephone number, if available, and email address, if available, where the elected official may be reached as required in Title 11, Chapter 47, Access to Elected officials.

Utah Code § 63G-2-301(2)(m).

According to Respondent, because Subsection (2)(m) states that only the elected official’s telephone number and email address are public records, the legislature’s intent was to make elected officials’ actual email correspondences exempt from open records laws. This interpretation is not only unsupported by the text of the statute, but it would defeat GRAMA's purpose in providing transparency to the public and holding their elected officials accountable.

Subsection 301(2) is not outlining an exhaustive list of public records as Respondent claims. The GRAMA’s framework does not create a finite list of public records. Instead, the Code presumes an indefinite list of public records while firmly establishing a finite list of records that aren’t public or are otherwise shielded from disclosure. Thus, the public records listed in Section 301 are those with an attached condition that may prevent their disclosure. Subsection (2) carves out specific records that are public “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).” Thus Subsection 301(2)(m) is saying that the phone number and email address are normally public records unless a different governing statute, regulation, or court ruling declares that they may be confidential. This has no applicability to the actual communications an elected official has, nor can it be read in that way. Therefore, we reject Respondent’s interpretation of Subsection 301 (2)(m). Elected officials’ emails are subject to open records laws.

C. Respondent’s Responsibility for Board Members’ Emails

In establishing that, as an elected official, Board Member Robinson’s personal email account is subject to a GRAMA request regardless of him being an elected official, we turn now to Respondent’s responsibility in this matter.

We note that under Utah Code § 53G-4-401, the Jordan School District Board of Education is a local school board and its own “body corporate” under the Code. Per section 401, the Board of Education is “vested with the powers and duties of a government entity” and “may sue and be sued” as it “serves and represents the residents of the local school board member’s district.” Utah Code § 53G-4-401(1), (4)-(5). Thus, although the Board of Education is comprised of elected officials, the sum of its parts creates a distinct corporate body under the law unconnected to its school district. This means that the Board is a governmental entity under the GRAMA and, therefore, each board member is subject to it. See Utah Code § 63G-2-103(11). Although it is a distinct governmental entity separate from Respondent, for the following reasons we find that Respondent is responsible for retrieving and disclosing Board Member Robinson’s responsive emails.

The facts are undisputed that all members of the Jordan School District Board of Education use an official government email address save Board Member Robinson. It is both material and significant that Respondent has chosen to issue the individual board members an official district email address. As Respondent has voluntarily taken on the responsibility to be the email server for the elected members of Jordan School District Board of Education, it has necessarily accepted responsibility to maintain the members’ email records. Consequently, it cannot skirt responsibility of diligently searching and working to retrieve responsive records for any and all GRAMA requests merely because it allows a board member to use a personal email address in lieu of the district email address it generally provides. If any other board member was the subject of a GRAMA request, Respondent would be wholly able to search its database and retrieve the responsive records in a timely fashion. But permitting board members to use their personal email address drastically affects how the public’s records requests will be handled and fulfilled. And where the legislature has been clear that a central purpose of the GRAMA is to “promote the public’s right of easy and reasonable access to unrestricted public records,” we see Respondent’s permissive approach to board members’ choice of emails as a serious and alarming problem. Utah Code § 63G-2-102(3)(a).

If Respondent allows Board Member Robinson to discard the district email address it provides, even to the extent of allowing him to publish his personal email address for official use on the district page where all other members list their district email, then Respondent incurs the responsibility of requiring Board Member Robinson to search his gmail account for all records that are responsive to each GRAMA requests it receives.

D. GRAMA Requires Records Retention to Foster the Public’s Trust

Finally, as our decision today illustrates, the public has the right to place its trust in governmental entities and their elected officials to properly retain public records. We are not ignorant to the fact that some government officials and employees use their personal email address to conduct official business from time to time. While those instances are problematic, the focus of concern here is Respondent issuing district email addresses to all its board members and then purposefully allowing one of those members to use and publish his personal email as his official address to carry out the public’s business. This raises grave concerns over compliance with record retention laws. When a governmental entity deliberately allows a public servant to use his personal email address to conduct public business, the public trust can be severely and quickly eroded. After all, how can a records requester ever be assured that the individual using a personal email address did not purposefully delete responsive emails? How can the public be assured that records can be timely retrieved and available for inspection under the GRAMA? See Utah Code § 63G-2-102(3) (outlining that the GRAMA’s intent is to promote easy access to unrestricted public records, prevent abuse of confidentiality, and establish fair and reasonable records management practices.) (Emphasis added.) How can the public know for sure that an individual has disclosed all of the responsive records from his own personal email account? And what level of trust can the public have in a political subdivision that knowingly allows individuals to use a personal email address and cannot guarantee proper records retention? Because of these questions and their lack of available answers, we agree that Petitioner has every right to be alarmed; not just about Board Member Robinson’s motivations with West Jordan Elementary School, but about the decisions Respondent, Board Member Robinson, and the Board of Education itself make in regard to open meeting and records laws.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is GRANTED. Respondent is hereby ORDERED to conduct another thorough search for responsive emails.  

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 27 day of March 2023

BY THE STATE RECORDS COMMITTEE

Kenneth Williams
Chair, State Records Committee