State Records Committee Appeal Decision 2023-35

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

IAN COOPERSTEIN, Petitioner, vs

UNIVERSITY OF UTAH, Respondent,

DECISION AND ORDER

Case No. 23-35

By this appeal Ian Cooperstein (“Petitioner”), requests records allegedly held by University of Utah (“Respondent”).

FACTS

On August 2, 2020, Petitioner filed a records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, the Petitioner requested “all communication between Mary Bohlig, director of Campus Recreation Services, and Diane Dahlman that relate to me that were communicated through University accounts from 2008-2019.” The Respondent located some potentially responsive records but denied the request citing Utah Code §63G-2-103(25)(b)(i) claiming that the communications did not meet the definition of “records.” Additionally, the Respondent claimed that even if the communications were records, they would be withheld for the following reasons:

• Utah Code §63G-2-302(2)(d). The University has determined that disclosure of the requested records would constitute a clearly unwarranted invasion of personal privacy. Accordingly, the University classified such information as “private” under GRAMA.
• Utah Code §63G-2-302(2)(a). “Records concerning a current of former employee of, or applicant for employment with a governmental entity . . . but not including records that are public under Subsection 63G-2-301(2)(b) or 63G-2-301(3)(o)” are among the records the University classifies as “private” under GRAMA.
• Utah Code §63G-2-305(10)(a)&(b). Release of the requested records could reasonably be expected to interfere with investigations or disciplinary proceedings.
• Utah Code §63G-2-305(22). “Drafts” are classified as “protected” under GRAMA.

Petitioner appealed the decision to Respondent’s Chief Administrative Officer (“CAO”), Todd Samuelson, who upheld the denial on February 28, 2023. The CAO didn’t discuss whether the communications could be classified as private or protected. Instead, he focused on the communications not meeting the definition of “record” under the GRAMA. Furthermore, he informed Petitioner,
[p]lease note the University’s Acceptable Use Policy Rule 4-004A(III)(2): ‘The University allows Users to make reasonable and limited personal use of its IT Resources, Information Systems, and Electronic Resources to the extent that such use does not interfere with University Duties.’ It would appear that the communications Ms. Bohlig exchanged with Ms. Dahlmann were personal in nature and permissible under University policy.

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

We must determine whether the sought after communications are records, whether they warrant a protective classification, and whether they 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). In defining a record, the Code makes clear that “a personal note or personal communication prepared or received by an employee or officer of a governmental entity” “in a capacity other than” their employment or official capacity is not a “record.” Utah Code § 63G-2-103(25)(b)(i)(A). Further, a record that is private, controlled, or protected under the Code is not a public record, and the governmental entity may not disclose that record unless the GRAMA expressly permits it. Utah Code §§ 63G-2-201(3)(a); and -201(5). When analyzing whether a governmental entity has correctly determined the nature of a record and its classification, this Committee has the authority to view the records in camera and review the information unredacted. Utah Code § 63G-2-403(9)(a)(ii).

1. The Communications are Records Under the GRAMA

At the hearing, pursuant to its authority to review records in camera, the Committee moved to view the unredacted contract in camera to aid it in its analysis. Upon review, we determine that the communications are records and subject to the GRAMA’s provisions.

To determine that a personal communication is not a record, the Code requires three elements be present:

1. The communication must be personal in nature;
2. The communication must be prepared by or received by a governmental employee or officer; and
3. Either the communication is made in a non-official capacity or it is unrelated to the public’s business.

Utah Code § 63G-2-103(25)(b)(i)(A)-(B).

Importantly, under the structure of Subsection (25)(b)(i), each of the three elements must be present to satisfy the statute and declare that the communication is not a record under the GRAMA. Accordingly, we look at each.

The communications were either prepared or received by a governmental employee, Mary Bohlig, the Director of Campus Recreation Services for the Respondent during the timeframe of Petitioner’s requested communications. With the second element satisfied, we look to the personal nature and substance of the communications.

When looking at whether a communication is personal, we look more to its substance rather than who the communication was sent to. For instance, in Tanner v. Utah State University, Utah State Records Committee, Decision and Order No. 23-08 (Feb. 28, 2023), we determined that emails sent from a government email account to certain family members were not records under the GRAMA because the substance was personal in nature concerning the sender’s plans after her resignation. Those plans had nothing to do with the public’s business and were clearly personal in nature. Thus, our line of decisions illustrate that whether a document is a “personal communication” does not turn on the device or account used nor the recipient, but is based on the totality of the communication in light of Subsection (25)(b)(i) with scrutiny on the subject matter being conveyed.

Here, Petitioner requested only the communications that related to him. In reviewing the records in camera, we found that the subject matter of all the records we received did relate in one way or another to Petitioner. We do not read Petitioner’s request as seeking only the records that reference him specifically, but that more generally relate to him and his overarching grievance with the Respondent concerning his past employment. Because of that, we find the communications concerning him were not personal in nature between Bohlig and Dahlman. As a result, of the record not being personal, the communications fail the statutory test Subsection 103(25)(b)(i) outlines to be excluded from the definition of “record.”

2. The Records Warrant a Protective Classification

Satisfied that the communications are records, we look at whether they should be classified as either private or protected under the Code. The GRAMA classifies as private “records concerning a current or former employee of . . . a governmental entity, including performance evaluations and personal status information. . . .” Utah Code § 63G-2-302(2)(a). As Petitioner is a former employee of the Respondent, the sought after communications do concern him. Accordingly, we find that the records are classified as private under the Code.

3. The Records Must be Disclosed to Petitioner

The GRAMA requires that a private record be disclosed to a requester under certain conditions. Pertinent here is the condition that the requester is the subject of the record. Utah Code § 63G-2-202(1)(a)(i). As discussed above, the request was specific for communications between Mary Bohlig and Dianne Dahlman that concern Petitioner. From our review of the communications, we find that Petitioner is the subject of the requested records and those we reviewed. Accordingly, the Respondent must disclose the record to him.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED. The Respondent is hereby ordered to disclose the responsive records to Petitioner.

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 1 day of August 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee