State Records Committee Appeal Decision 2023-20

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NICHOLAS BENDER (on behalf of the Johnson family), Petitioner, vs

UINTAH SCHOOL DISTRICT, Respondent,

DECISION AND ORDER

Case No. 23-20

By this appeal Nicholas Bender (“Petitioner”), requests records allegedly held by Uintah School District (“Respondent”).

FACTS

On April 7, 2022, T.J., a student at Discovery Elementary School, suffered a devastating and tragic fall from the playground equipment while playing at recess. After falling and hitting his head, he was monitored by school staff for dizziness and other symptoms that might indicate a serious head injury. However, after reporting the incident to his mother, the staff ultimately found T.J. to be okay and allowed him to return to class and finish out the school day. Later, when T.J. was home, he lay down on the couch and became unresponsive. T.J. was rushed to the hospital where he was transferred to Primary Children’s Hospital for care. Doctors determined that his head injury was significant and ended up causing severe debilitation in T.J.’s motor and communicative abilities.

As counsel for T.J. and his parents, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”) on October 21, 2022. Specifically, Petitioner requested the following:

All (electronic and hard copy) documents, materials, records, photos, videos, recordings, communications, notes, incident reports, evaluations, and like records and information related to the playground incident involving [T.J.] at Discovery Elementary on April 7, 2022. This includes, but is not limited to: all information regarding the subject playground; all maintenance, repairs, or changes to the playground since the playground was installed; all information relating in any way to any investigation of the subject incident; all videos and photographs captured by all cameras of the subject incident and capturing any portion of the subject playground from 72 hours before the incident to 72 hours after the incident; all videos and photographs of alterations, repairs, or maintenance to the subject playground since April 7, 2022; all video and photographs of [T.J.] after the incident anywhere ion the school premises or elsewhere; all information related to all other incidents involving injuries sustained at playgrounds at Discovery Elementary and other playgrounds with Uintah School District.

Respondent responded to the GRAMA request on November 4, 2022, providing maintenance records for the Discovery Elementary playground (122 pages), student witness statements with student names redacted (4 pages), and maintenance records regarding other playgrounds of the Respondent’s that mention injuries (4 pages). However, based on its classification of the remaining records as “protected,” the Respondent declined to provide the following: (1) the Student Injury Report relating to the T.J.’s incident; (2) statements from staff gathered in investigating the accident, (3) the Risk Management investigation report, (4) email correspondence between the Respondent’s staff and Risk Management about responding to the family’s potential claim against the Respondent, and (5) Student Injury Reports relating to other student injuries occurring on the Respondent’s playgrounds. However, because T.J.’s father was the Respondent’s business administrator at the time, the Respondent allowed T.J.’s parents to view the student injury report on the condition that they could not make a copy of the report.

Petitioner appealed the Respondent’s partial denial to its chief administrative officer (“CAO”) on November 28, 2022, arguing the correctness of the decision. However, the CAO upheld the Respondent’s determination, concluding that the records the Respondent withheld fell under the protections of Utah Code §§ 63G-2-305(18) and (24), which protect records from disclosure that are prepared by or for various individuals in anticipation of litigation, or a judicial, quasi-judicial, or administrative proceeding[1], and records of investigations of loss occurrences that may be covered by the Risk Management Fund.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On May 18, 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

We are asked to review whether the documents are properly classified under Subsections 305(18) and (24) and, if so, whether the burden has been met to compel the records’ disclosure.

STATEMENT OF REASONS FOR DECISION

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). A government record is presumed to be public and able to be disclosed unless expressly restricted by statute. Utah Code § 63G-2-201(2). Thus, if a record is classified as protected under Section 63G-2-305, then its disclosure may be restricted. Utah Code § 63G-2-201(3)-(5). In pertinent part to this appeal, the following provisions of Section 305 hold that the following records are protected if properly classified by the governmental entity:

(18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding.

Utah Code § 63G-2-305(18).

And Subsection 305(24):

(24) records of investigations of loss occurrences and analyses of loss occurrences that may be covered by the Risk Management Fund, the Employers’ Reinsurance Fund, the Uninsured Employers’ Fund, or similar divisions in other governmental entities.

Utah Code § 63G-2-305(24).

Importantly, if a record is properly classified as protected under either Subsection (18) or (24), then the petitioner shoulders the burden of showing “by a preponderance of the evidence[ ] that the public interest favoring access is equal to or greater than the interest favoring restriction of access.” Utah Code § 63G-2-406(1).

Subsection 305(18) is intended to allow governmental entities to prepare for litigation or other complaints that require adjudication. Entities have an interest in preparing their reports and documents in preparation to defend themselves against legal claims. If those records were readily available to the public without qualification or restriction, then entities would be disadvantaged in preparing their defense. Thus, the GRAMA attempts to balance open record laws with protecting governmental entities’ efforts to prepare for judicial, quasi-judicial, or administrative adjudicative proceedings. In similar fashion, Subsection 305(24) is intended to protect records of investigations that pertain to loss occurrences covered by Risk Management.

Upon hearing the parties’ arguments, the Committee moved to view the records in camera to ascertain their nature and determine whether the classification was proper. See Utah Code § 63G-2-403(9)(a)(i)-(ii). In examining the records, we find that the records are properly classified under both Subsections 305(18) and 305(24). That is, the records at issue were prepared by employees or agents or the Respondent and were done so in anticipation of either a formal complaint against the Respondent or loss occurrence covered by Risk Management, or both.

With the classification established, we turn to Petitioner’s burden of proof to show that the public interest outweighs that of the Respondent’s interest to restrict disclosure in anticipation of pending litigation. Petitioner has produced little evidence to show that the various records surrounding T.J.’s personal and tragic accident trigger a general public interest. Petitioner argues that if the Respondent is allowed to deny records’ requests under Subsections 305(18) and (24) generally, then the intent of the GRAMA is “gutted” and school children and their parents will routinely be restricted from obtaining information about injuries sustained at school. But this is a policy argument; it is not evidence that releasing records relating specifically and only to T.J.’s injury furthers a public interest that outweighs the Respondent’s need to prepare for litigation or an administrative proceeding. The fact that Petitioner filed a “Notice of Claim” gave notice to the Respondent that litigation was possibly imminent, and, as a result, put the Respondent on notice that it must reasonably anticipate a lawsuit. For this, Subsections 305(18) and (24) are directly applicable as they protect the records when they are prepared in anticipation of litigation or loss occurrence investigations. With that said, however, we do see some exceptions where the records were prepared as a matter of course and before the Notice of Claim was filed. Because of that, we find that the following records must be disclosed:

1. Student Injury Report. Not only was this record prepared as routine procedure after a student injury, but the Respondent allowed T.J.’s parents to openly view it. We see no logical reason why a copy of this record cannot be disclosed.

2. Statements Made by Staff. Although the statements made by staff were gathered in the investigation, the statements themselves were made as a matter of course and not made for an investigation. Accordingly, these must be disclosed.

We find that the remaining records (the Risk Management report, email correspondences with Risk Management, and student injury analysis) are all properly classified and the evidence supporting the public interest for disclosure is not equal to or greater than the Respondent’s interest in restricting the records.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is GRANTED in part and DENIED in part according to the following: The Respondent is hereby ordered to disclose to Petitioner T.J.’s Student Injury Report and all statements made by staff relating to the accident. The remaining records may be withheld.

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 26 day of May 2023

BY THE STATE RECORDS COMMITTEE

Nancy Dean
Chair pro tem, State Records Committee

1. At some point, T.J.’s parents retained Petitioner as legal counsel. In an effort to preserve their ability to bring a claim against the Respondent, counsel filed a “Notice of Claim” with the court. Counsel then pursued the GRAMA request and appeals in order to obtain more factual information to potentially complete and file a formal claim.