State Records Committee Appeal Decision 2023-15

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COURTNEY TANNER (Salt Lake Tribune), Petitioner,

UTAH SYSTEM OF HIGHER EDUCATION (USHE), Respondent,

DECISION AND ORDER

Case No. 23-15

By this appeal, Courtney Tanner (“Petitioner”), requests records allegedly held by Utah System of Higher Education (“USHE”).

FACTS

The Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On November 22, 2022, Ms. Tanner requested “any communication between and among members of the Utah Board of Higher Education, the USHE commissioner and/or his executive team and/or [Utah State University] President Noelle Crockett about Crockett’s tenure, concerns about her administration and/or her departure as president and any agreements about what that would look like.”

In a response dated December 1, 2022, USHE stated that Petitioner’s request for “any agreement” was resolved when USHE provided the only agreement between the Board and President Crockett regarding President Crockett’s departure in Petitioners first GRAMA request. The Respondent then went on to deny the remaining requests on the grounds that the requested records were private under Utah Code § 63G-2-301(3)(d) and Board Policy R209.

On December 15, 2022, Petitioner appealed to the Respondent’s chief administrative officer (“CAO”), Commissioner, David Woolstenhulme. In her appeal, Petitioner challenged whether the requested records were correctly classified as private. Petitioner argued that the statute cited by UHSE in its initial denial is not applicable. Specifically, Petitioner argued that Subsection 301(3)(d) applied only to contracts that a governmental entity enters into. She claimed that only part of her request was for any contracts responsive to her request, and that the other half of her request was for communications about the contracts, if any.

However, Petitioner was met with another denial. The CAO conceded that Subsection 301(3)(d) did not apply to the request for communications, but stated that Subsections 302(2)(a), 305(25), and 305(28) do. Under those provisions, the CAO determined that the records were classified as private and restricted from disclosure. Further, the CAO acknowledged his weighing authority under Utah Code § 63G-2-401(6) which allows him to order the records be disclosed if after considering the various interests relative to disclosing the records or keeping them restricted he determines that the interests weigh in favor of disclosure. However, even upon weighing the competing interests, the CAO determined that disclosure was not warranted.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On April 20, 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.

ISSUES FOR REVIEW

The Committee is asked to determine whether the CAO properly classified the records as private, and if so, whether the interests favoring disclosure outweighs those favoring restriction.

STATEMENT OF REASONS FOR DECISION

At the hearing, the Committee heard arguments from the parties and voted to view the disputed records in camera. Shortly after closing the public portion of the hearing for its in camera review, the Committee reconvened the hearing. Due to the important issues that must be considered and the volume of records to review, the Committee moved to continue the hearing to the next available regularly scheduled meeting to give it time to complete its review of the records.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby CONTINUED

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 1st day of May 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee