State Records Committee Appeal Decision 2023-22

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ANNIE KNOX, Petitioner, vs.

UTAH ATTORNEY GENERAL’S OFFICE, Respondent,

DECISION AND ORDER

Case No. 23-22

By this appeal, KSL reporter, Annie Knox (“Petitioner”), requests records allegedly held by the Utah Attorney General’s Office (“Respondent”).

FACTS

On November 14, 2022, Petitioner submitted a records request to the Respondent under the Government Records Access and Management Act (“GRAMA”) seeking “AG Reyes’ weekly schedule/calendar for August 2022 to date.”

On November 18, 2022, the Respondent denied the request, stating that: “The Office does not maintain an official schedule for the Attorney General. Additionally, Utah Code §63G-2-103(22)(b)(ix) provides that ‘a daily calendar or other personal note prepared by the originator for the originator’s personal use or for the personal use of an individual for whom the originator is working’ is not a ‘record’ subject to GRAMA. Accordingly, the Office does not maintain any records responsive to your request.”

Petitioner appealed to Respondent’s chief administrative officer (“CAO”) on December 16, 2022, challenging the Respondent’s determination that the requested calendar is not a record subject to the GRAMA. Petitioner also clarified that she is not seeking records about Attorney General Reyes’s personal time or schedule, rather only the calendar “pertaining to his schedule and duties as a public official, as maintained and used as a reference by both Reyes and his staff.” However, on December 23, 2022, the Respondent’s CAO denied Petitioner’s appeal arguing that the AGO does not maintain a calendar pertaining to [Attorney General Reyes’s] schedule and duties as a public official, and although Mr. Reyes does maintain a personal calendar, that calendar is expressly excluded from the definition of a record under Utah Code §63G-2-103(22)(b)(ix) because it is primarily prepared by Mr. Reyes for his personal use. The CAO explained that to the extent that select staff are able to view or modify (i.e. originate) that personal calendar, they are only doing so for the personal use of Mr. Reyes, for whom they are working.

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 must determine whether Attorney General Reyes’s calendar is a public record under the GRAMA and if it must be disclosed.

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). Thus, the right to inspect and take a copy of the requested document necessarily depends on the document being a “public record.” The GRAMA defines a “public record” as “a record that is not private, controlled, or protected and that is not exempt from disclosure as provided in Subsection 63G-2-201(3)(b).” Utah Code § 63G-2-103(23). In turn, “record” holds its own definition. See Utah Code § 63G-2-103(25)(a). Relevant to our inquiry is the Code’s express provision of what a “record” is not: “a daily calendar or other personal note prepared by the originator for the originator’s personal use or for the personal use of an individual for whom the originator is working.” Utah Code § 63G-2-103(25)(b)(ix). Thus, if Attorney General Reyes’s calendar is not a record under this definition, it is therefore not a public record subject to the GRAMA’s requirements and the Respondent has no obligation to disclose it.

The Respondent argues that Attorney General Reyes’s calendar fits squarely into the exemption that Subsection 103(25)(b)(ix) provides. The Respondent supports this argument with several assertions such as the plain text of the statute; that, in addition to his official duties, the contents within the calendar hold his personal schedule; and the policies behind the statute, such as not requiring officials to burden themselves with having to maintain multiple calendars (e.g., a calendar for their official duties, their personal obligations, their political events, etc.). In other words, according to the Respondent, if a daily calendar was a record under the GRAMA, then public officials would have to manage multiple calendars to keep their private affairs private while allowing other calendars to be public. Further, the Respondent argues that government employees and public officials are allowed to use their official devices for limited personal use which would include inputting personal events and appointments on a government calendar. And finally, perhaps the strongest policy argument the Respondent asserts is that by disclosing the daily calendar of a public official, the official’s routine meetings, schedule, and whereabouts will become known. Even if the records request is for only past events, revealing the official’s calendar can show a pattern of certain meeting places and times which could reveal where the official will likely be in the future. This, of course, creates a safety risk for the public official since their upcoming whereabouts can be reasonably anticipated.

We don’t disagree with the policies behind the legislature expressly omitting a daily calendar from the definition of a record. However, we don’t agree with the Respondent’s conclusion.

Subsection 103(25)(b)(ix) exempts “a daily calendar . . . prepared by the originator for the originator’s personal use . . .” Utah Code § 63G-2-103(25)(b)(ix) (emphasis added). We read this to mean that for a calendar to be exempt from the GRAMA, the calendar must be used entirely for private, non-work-related use. While Attorney General Reyes uses the calendar for his private events and appointments, that is not the calendar’s only use. He also uses it for official business and work-related items – items that concern the “public’s business” and are therefore subject to the GRAMA. See Utah Code § 63G-2-102(1)(a). As burdensome as it might be for a public official to juggle multiple calendars, many, if not most, do perform the feat for the exact reason we are hearing this appeal: The public has a right to know what their public officials are up to, especially in their official capacity of carrying out the public’s business. See generally Id. Thus, if there is a right to know, which even the Respondent conceded during its 5-minute rebuttal time[1], then it follows that the right to that information is subject to disclosure under the GRAMA. Therefore, because the public has the right to know their officials’ official duties and work-related activities, we are unmoved by arguments about the official’s need to be practical and more efficient by managing only one calendar. If a public official chooses to intertwine personal items with his government calendar, he must accept the obligation of transparency that goes with that.

With that said, we are sensitive to Attorney General Reyes’s safety and his personal privacy, but we don’t believe that sensitivity necessitates that we deny Petitioner’s appeal. The GRAMA accounts for records that contain both public and private information. For such records, the law requires the governmental entity to disclose the public information contained in the requested record and allows it to deny the information that is restricted. Utah Code § 63G-2-308(1)-(2). Because Attorney General Reyes’s calendar contains both public and private information, as well as information that implicates safety concerns, we find that the calendar must be disclosed to Petitioner, but in doing so, the Respondent may redact non-work-related items and the addresses of work-related appointments and meetings that Attorney General Reyes attended during the time period Petitioner requested.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is GRANTED. The Respondent is hereby ordered to disclose to Petitioner the daily calendar for Attorney General Reyes for the time period set forth in her initial GRAMA request. To protect his privacy and security, the Respondent may redact only the non-work-related items, as well as any addresses the calendar contains for work-related meetings and appointments.

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. “There’s no debating that it’s absolutely in the public interest for people to know exactly what their officials are doing in their official capacity.” Resp’t’s Rebuttal. (Respondent argued, however, that if public officials are not voluntarily transparent with their activities and schedules, then the public’s recourse is to vote the officials out of office. We don’t agree that the GRAMA deliberately defers to the threat of the ballot box as the only means the public has to obtain their officials’ calendars pertaining to official and work-related duties. If that were so, why wouldn’t the GRAMA defer to the ballot box for all records connected to elected officials?)