State Records Committee Appeal Decision 2023-51

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

EMILY ANDERSON STERN (SALT LAKE TRIBUNE), Petitioner, vs

UNIVERSITY OF UTAH, Respondent

DECISION AND ORDER

Case No. 23-51

By this appeal Luis Sanchez (“Petitioner”), requests a fee waiver for requested records held by Salt Lake City Police Department (“Respondent”).

FACTS

On January 31, 2023, Petitioner filed a records request and fee waiver with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the following records:

1. all reports of alleged sexual harassment or misconduct experienced by students in connection with the internships through the Hinckley Institute of Politics and given to the Respondent or its employees from Jan. 1, 2013, to the present;

2. documentation of any actions taken by the Respondent after receiving such information, including initial reports by the complainant, internal documents reflecting the handling of the complaint, communications between the Respondent’s employees and the entity employing an intern involved in the complaint, draft and final versions of investigative reports made by investigators who looked into the complaints, source documents or notes included in investigative reports and files, and documentation of actions taken by the Respondent following any of the foregoing.

On April 5, 2023, the Respondent denied the request for multiple reasons. The Respondent claimed that it was prohibited from releasing the requested records under the Family Educational Rights and Privacy Act (“FERPA”) because the records were “education records” under that law. Additionally, the Respondent stated that even if the records could be disclosed under FERPA, the records were still protected under numerous GRAMA provisions that included: 63G-2-302(2)(d) (releasing the records would result in an unwarranted invasion of privacy); 63G-2-305(10)(a)-(b) (releasing the records could reasonably interfere with investigations or disciplinary or enforcement proceedings); 63G-2-305(11) (releasing the records would jeopardize an individual’s safety); and 63G-2-302(2)(a) (employment records not classified as public under 63G-2-301(2)(b) or (3)(o)).

Dissatisfied with the response, Petitioner appealed the denial to the Respondent’s chief administrative officer (“CAO”). Petitioner argued each classification the Respondent stated in its response and went on to argue that the public interest favoring access to the requested records is greater than or equal to any interest favoring restriction of access, and because of that, the records should be disclosed. However, on May 9, 2023, the Respondent’s CAO upheld the Respondent’s decision to deny the request and affirmed the reasoning and classifications the Respondent set forth in its denial letter.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On September 21, 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 requested records may be disclosed under FERPA.

STATEMENT OF REASONS FOR DECISION

Our public records laws provide 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). However, this right is without limitations. When it comes to education records, “[t]he disclosure of an education record as defined in [FERPA], 34 C.F.R. Part 99, that is controlled or maintained by a governmental entity shall be governed by [FERPA], 34 C.F.R. Part 99.” Utah Code § 63G-2-107(2)(c).

FERPA is a federal law that restricts funding to educational institutions which have “a policy or practice of permitting the release of education records . . . of students without the written consent of their parents. . . . 20 U.S.C. § 1232g(b)(1). For students who are 18 years old or older, consent is required from the student. 20 U.S.C. § 1232g(d). Under FERPA, “education record” is defined as those records that are (1) directly related to a student; and (2) maintained by an educational agency or institution. 34 C.F.R. § 99.3. Thus, without a proper signed consent, only a parent and the student may inspect the student’s education records under FERPA. 34 C.F.R. §§ 99.10; 99.30.

At the hearing, the Committee moved to view the disputed records in camera pursuant to Utah Code § 63G-2-403(9)(a) (granting Committee authority to review disputed records in camera). Upon doing so, the Committee determined that the records were education records as FERPA defines that term. The records directly relate to certain respective students. Consequently, we find that FERPA governs these records and their disclosure, and absent the proper signed consent from students (and parents if applicable), the records cannot be disclosed See Utah Code § 63G-2-107(2)(c). [1]

ORDER

THEREFORE, in accordance with this decision, 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 2nd day of October 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee

1. We note that Petitioner argues the records can be released in redacted form in accordance with our recent decision in Kummer v. Sevier County School District, Utah State Records Committee, Decision and Order, case no. 23-36 (entered Aug. 28, 2023). However, that case is distinguishable from this one. There, it was not the media or other third-party requesting the education record; it was the parents of the daughter to which the record related. Therefore, consent for the release was satisfied.