State Records Committee Appeal Decision 2023-43

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BRADY EAMES, Petitioner, v.

UTAH SYSTEM OF HIGHER EDUCATION, Respondent.

DECISION AND ORDER

Case No. 23-43

By this appeal Brady Eames, (“Petitioner”), requests a fee waiver and records allegedly held by Utah System of Higher Education (“USHE”) (“Respondent”).

FACTS

On April 19, 2023, Petitioner filed an expedited records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Eames requests a fee waiver because the records primarily benefit the public. The Petitioner submitted multiple record requests comprised of the following:

1. Any and all documentation of the appointment or hiring of the following persons by Dave Woolstenhulme as his professional, legal, and administrative staff:

• Alison Adams or Alison Adams-Perlac as General Counsel; and
• Brynn Fronk as Executive Assistant to Deputy Commissioner.

2. Any and all documentation of Dave Woolstenhulme, Commissioner of the Utah System of Higher Education, in which he made a determination or setting of the salary, retirement provisions and other benefits pertaining to each of the following persons:

• Alison Adams or Alison Adams-Perlac as General Counsel;
• Brynn Fronk as Executive Assistant to Deputy Commissioner; and
• Geoffrey Landward as Secretary to the Utah State Board of Education (“USBE”).

3. Any and all of Geoffrey Landward’s final interpretations made with respect to the Utah Constitution-Article IV-Section 10, Utah Code 52-1-2(2) the Volker Opinion and Utah Code 76-8-203(1)(a) and the taking of the Constitutional oath by numerous individuals Petitioner named and the subscribing and filing of a duly attested and sealed Public Official Oath Form by those individuals before they each exercised, or attempted to exercise, the functions of a member of the USBE on July 1, 2020.

4. Geoffrey Landward’s correspondence in which he determined or stated the right of each of the individuals named [in item 3’s request] to violate Utah Constitution-Article IV-Section 10, Utah Code 52-1-2(2) and Utah Code 76-8-203(1)(a) by not taking the Constitutional oath and not subscribing and filing with the Utah Division of Archives and Records Services (“DARS”) a duly attested and sealed Public Official Oath Form before they each exercised, or attempted to exercise, the functions of a member of UBHE on July 1, 2020.

5. Any and all of Geoffey Landward’s final interpretations made with respect to the Utah Constitution-Article IV-Section 10, Utah Code 52-1-2(2) and Utah Code 76-8-203(1)(a) and the taking of the Constitutional oath by and the subscribing and filing of a duly attested and sealed Public Official Oath Form by Dave Woolstenhulme before he exercised, or attempted to exercise, the functions of the Commissioner on July 1, 2020.

6. Geoffrey Landward’s correspondence in which he determined or stated the right of Dave Woolstenhulme to disrespect and violate Utah Constitution-Article IV-Section 10, Utah Code 52-1-2(2), the Volker opinion and Utah Code 76-8-203(1) (a) by not taking the Constitutional oath and not subscribing and filing with the DARS a duly attested and sealed Public Official Oath Form before he exercised, or attempted to exercise, the functions of the Commissioner on July 1, 2020.

7. Any and all public notices, agendas, audio recordings, and approved written minutes pertaining to the meetings convened and conducted by the Council of Presidents.

8. Any and all of Geoffrey Landward’s final interpretations made with respect to UBHE Policy R150, the OPMA and the meetings of the Council of Presidents held as of and since July 1, 2020, to discuss, receive public comments about, deliberate and/or vote regarding the following public matters:

• Advising the Commissioner and the UBHE on USHE policies and procedures;
• Assuring continuous communication among the higher education institutions within Utah, the UBHE, the office of the Commissioner within Utah related to problems and issues of common interest to USHE; and
• State-wide policy issues relating to the program and budgetary needs of Utah higher education.

9. Geoffrey Landward’s correspondence in which he determined or stated the right of the Council of Presidents to not obey the OPMA when it holds meetings to discuss, receive public comments about, deliberate and/or vote regarding the public matters enumerated above in (8).

10. Any and all reports of performance evaluations of Dave Woolstenhulme as Commissioner which have been duly completed by the Executive Committee of the UBHE with respect to the following:

• His taking of the Constitutional oath and his subscribing and filing a duly attested and sealed Public Official Oath Form in accordance with the Utah Constitution-Article IV-Section 10, UC 52-1-2(2), the Volker Opinion UC 76-8-203(1)(a); and
• The making, retention and maintenance of the public notices, agendas, audio recordings, and approved written minutes pertaining to the meetings convened and conducted by the Council of Presidents

The Commissioner denied the requests on April 28, 2023, for the reasons below:

• The Commissioner denied the first two requests because (1) records of a current or former employee are private under Section 63G-2-302(2)(a); and (2) the Commissioner uses the same salary table as the University of Utah and that salary table is available on the university’s web page. A link to the university’s web page was provided to Mr. Eames.
• The Commissioner denied the next five requests because access to interpretations and communications from an attorney are protected pursuant to court rule and are not public under Section 63G-2-201(3)(a). The Commissioner later determined that neither the Utah Board of Higher Education nor the Officer of the Commissioner has records that are responsive to this request since no such records exist.
• The final requests were denied because records of a current or former employee, including performance evaluations, are private under Section 63G-2-302(2)(a). The Commissioner later determined that neither the Utah Board of Higher Education nor the Officer of the Commissioner has records that are responsive to this request since no such records exist.

Mr. Eames’ appeal to Commissioner Woolstenhulme was denied pursuant to Utah Code §63G-2-401(5)(b)(ii).

Mr. Eames filed an appeal with the State Records Committee (“Committee”). On August 28, 2028, 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 determine whether the records denial was appropriate on the grounds that (1) the Respondent performed an adequate search for the records; and (2) that the protective classification the Respondent assigned to the responsive records it found was correct and warranted the records’ restriction. If the protective classification is correct, we must then determine whether Petitioner’s interests are strong enough to compel disclosure.

STATEMENT OF REASONS FOR DECISION

The GRAMA provides 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). When a record request is received by a governmental entity, it must perform a reasonable search for the record. Utah Code § 63G-2-(7)(b). If the governmental entity performs a reasonable search and the requested records are not found, the burden shifts back to Petitioner to show that the search efforts were not reasonable. Amann v. Office of the Utah Attorney General, State Records Committee, Decision and Order, no. 22-56 (entered Dec. 27, 2023). Only those records that are not private, controlled, or protected by Utah law are deemed public records to which the requestor may have received a copy. Utah Code § 63G-2-201(3)(a). If records are withheld because the governmental entity has properly classified them as “private,” under the GRAMA, then this Committee must weigh the various interests and public policies supporting disclosure against those favoring restriction and determine whether access is warranted.

A. The Respondent Performed a Reasonable Search

At the hearing, the Committee questioned the Respondent about its search efforts. Allison Adams, the Respondent’s general counsel testified that staff looked through the Office of Commissioner Files, as well as personally requested the Commissioner himself search his records for the requested items. Some responsive records were found and were classified as “private” under Section 63G-2-302, which we address below. However, to the remaining requested records, the Respondent claims it found no responsive records.

We find that given the nature of the requested records that didn’t turn up in the search efforts, the Respondent’s search efforts were reasonable. This is so, mainly because the requested records would’ve likely contained, at least to some degree, privileged information or communications. Ms. Adams testified that the search efforts encompassed those files where such privileged records would be kept, as well as the Commissioner’s own files. With no responsive items found, the burden shifts to Petitioner to show that the search efforts were not reasonable.

Throughout Petitioner’s presentation and argument to the Committee, he raised no issue about the adequacy of the Respondent’s search efforts. Therefore, he has not met his burden and we are left to conclude that the Respondent has satisfied its burden.

B. The Records Classified as Private Were Properly Classified and Withheld

Responsive records were found to request nos. 1 and 2 above. Essentially, those requests were for records that relate to the “appointment or hiring” of the board’s general counsel, executive assistant, and secretary, as well as the “determination or setting of [their] salary, retirement provisions and other benefits.”

The Respondent classified the records as “private” under Section 63G-2-302(2)(a), which classifies as private “records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, but not including records that are public under Subsection [-301(2)(b); or -301(3)(o)] or private under Subsection (1)(b)” Utah Code § 63G-2-302(2)(a).

The GRAMA addresses employment records rather directly. The Code expressly states that only the following employment related records are public under the GRAMA:

(2)(b) the name, gender, gross compensation, job title, job description, business address, business email address, business telephone number, number of hours worked per pay period, dates of employment, and relevant education, previous employment, and similar job qualifications of a current or former employee or officer of the governmental entity . . .

(3)(o) records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee if:
(i) the disciplinary action has been completed and all time periods for administrative appeal have expired; and
(ii) the charges on which the disciplinary action was based were sustained.

Utah Code §§ 63G-2-301(2)(b) & 3(o).

While those records listed in Subsections 301(2)(b) and (3)(o) are quite specific, that same specificity is not carried over to the list of employment related records classified as private under Section 302. Instead, Section 302(2)(a) gives a broad stroke of protection to “records concerning a current or former employee of, or applicant for employment with a governmental entity. . . .” Thus, according to the GRAMA, if an employment related record is not of those listed in Subsections 301(2)(b) or 3(o), then it cannot be a public record subject to disclosure due to the breadth of protective coverage the legislature created in Subsection 302(2)(a). Accordingly, we find that the employment related records Petitioner requested are classified correctly as private pursuant to Section 63G-2-302(2)(a).

C. The Interests Favoring Restriction Outweigh Those Favoring Disclosure
Upon establishing that the requested records are properly classified, we turn now to whether Petitioner’s interests outweigh the government’s interest in restricting access.

The GRAMA requires that, when a record is classified as private, this Committee must weigh “the various interests and public policies pertinent to the classification or nondisclosure” and “order the disclosure of information properly classified as private . . . if the public interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). The Utah Supreme Court has interpreted “public interest” to mean “the specific interests of the parties and particularized application of the relevant public policies at issue.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶19. That is, “the weighing analysis is improperly performed if it’s ‘focused on general policy concerns without discussing how those interests are specifically applied to the records at issue in [the] case.’” Amann v. Division of Risk Management, Utah State Records Committee, Decision and Order, no. 23-39 (entered Aug. 28, 2023) (quoting Schroeder, at ¶19).

Petitioner argued at the hearing that he has “the Constitutional right to use GRAMA as a tool to discover offenses against the administration of government and the abuse of public offices.” We agree that Petitioner has that right; however, that being the only interest he asserts in this request, we find it inadequate to defeat the public policies behind protecting government employees’ personnel records.

In the private sector, an employee’s personnel file is held confidential by the employer. Typically, that record is only discoverable through a court order. This, of course, is to protect the employee’s privacy and ensure he or she may work unencumbered by the worries that personal performance issues, disciplinary write-ups, and personal information could be readily known. The legislature has adopted that same policy in protecting public employees’ employment records while also satisfying the “GRAMA’s strong presumption in favor of public disclosure” in classifying some high-level records as public and readily discoverable. Schroeder, ¶55. To upset the legislature’s preferred balance on these types of records, Petitioner must assert interests stronger than merely attempting to discover offenses by public servants. Accordingly, we find that the interests favoring disclosure are not greater than or equal to those favoring restriction, and the records may therefore be withheld.

ORDER

THEREFORE, IT IS ORDERED THAT Petitioner’s appeal is hereby DENIED.

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 6 day of September 2023.

BY THE STATE RECORDS COMMITTEE

______________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee