State Records Committee Appeal Decision 2023-59

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JARED KUMMER, Petitioner, vs

SEVIER COUNTY SCHOOL DISTRICT, Respondent,

DECISION AND ORDER

Case No. 23-59

By this appeal Jared Kummer (“Petitioner”), requests records allegedly held by Sevier County School District (“Respondent”).

FACTS

Aside from Petitioner requesting additional records not previously requested, the facts of this appeal are identical to those in Kummer v. Sevier School District, case no. 23-36, Utah State Records Committee (entered Aug. 28, 2023) (Kummer I). Because the facts are identical, to that case, we give only a brief review of them and describe the records Petitioner seeks.

On November 21, 2022, A.K., the daughter of Petitioner had to participate in an “endurance day” during her physical education (“P.E.”) class. For the duration of the class, the instructor required the kids to perform continued physical exertion exercises that accumulated to hundreds of push ups and scores of wind sprints across the gym. The activity resulted in A.K. incurring chest and muscle pain to the point where the range of motion for her arms was significantly limited.

Shana Kummer, A.K.’s mother, filed a record request to obtain a copy of the gymnasium surveillance footage that recorded the P.E. class her daughter had to participate in. After Respondent denied her request, this Committee ultimately ruled that Respondent must redact the faces of A.K.’s peers and then release the video to Mrs. Kummer.

On May 28, 2023, Petitioner filed his own records request with Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner made 12 requests relating to the P.E. classes at South Sevier Middle School (“SSMS”) and investigation into endurance day activities. Those requests were as follows:

1. Records of all allegations or complaints from students, parents, teachers, or district employees related to the P.E. event or any other SSMS P.E. related complaint for the past 6 years;

2. All related incident reports for the past 6 years, including those related to the 11/21/22 event;

3. All student and teacher witness related statements/reports created from the school and district investigations;

4. A copy of Principal Michelle Nielson’s communications with the teacher and students, all other records generated by Principal Nielson, as well as reports by students about what happened the day before the P.E. class;

5. All interview transcripts, audio recordings, and summaries of teachers, employees, and external persons interviewed as part of the school and district investigations, and all witness statements for the district investigation, including students, district employees and external persons;

6. All collected evidence including photos, videos, digital communications, and other relevant materials for both investigations;

7. All investigation reports, including the final investigation reports for both the school and the district investigations, including the summary of all findings, conclusions, and recommendations;

8. All meeting minutes and audio/video records associated with both investigations, including both open and closed meetings, as well as meetings that involved the Sevier School Board;

9. All disciplinary records created because of the school investigation and/or district investigation, including disciplinary notices/warnings, suspension letters, corrective action plans, or any other documentation outlining consequences imposed upon the teacher as a result of misconduct, any corrective action for SSMS in general, and all disciplinary action records for Eric Baker since the date of his hire to the present related to any matter;

10. All records of communication (i.e., text messaged, emails, social media messages (Facebook Messenger), notes, reports, and other written statements) associated with the P.E. department investigations and its aftermath, including records created by or provided to any of the following: Michelle Nielson, Cade Douglas, Michael Willies, Nolan Anderson, Kycen Winn, Kimberly Keisel, Eric Baker, Christopher Nielson, arson Christensen, Chad Lloyd, John Foster, Ryan Savage, Jack Hansen, Dixie, Rasmussen, and Richard Orr from 11/21/22 through the present;

11. The name of the lawyer and the agency/firm that has worked with the District related to the investigation and its aftermath; and

12. A copy of all records (prepared statements, emails, other written documents) created but not previously provided to the Kummers relating to the transparency request, including a copy of all communication records created by/received by board members (Jon Foster, Ryan Savage, Jack Hansen, Dixie Rasmussen, and Richard Orr).

The records manager for Respondent responded to the request by providing many records, denying requests that were not records under GRAMA, denying requests of private and protected records, and redacting several records that were partially private or protected. Petitioner appealed the decision to the Chief Administrative Officer (“CAO”). In a written decision, the CAO provided some additional records he deemed subject to public disclosure and denied the appeal for the remaining requests.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision disputing all redacted and withheld documents. At the Petitioner’s request, on September 25, 2023, Respondent provided a more detailed Preliminary Response to the Committee of the records provided, withheld, and redacted. On November 16, 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 withheld records are properly classified and restricted under GRAMA. We are also asked to review whether the surveillance video of the gymnasium may be disclosed pursuant to federal law.

STATEMENT OF REASONS FOR DECISION

I. In Camera Review of Disputed Records

In determining if a record is properly classified and withheld, the law grants this committee the authority to review the disputed records in camera. Utah Code § 63G-2-403(9)(a)(ii). At the hearing, the Committee attempted to review the records in camera but was met with technical difficulties. The records needing to be reviewed consist of 77 documents. Because of the technology problems we encountered and the volume we need to review, we find it best to continue this part of the proceeding to a future date.

II. Federal Law Application to Video Surveillance

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). However, if a record is governed or limited by another statute, then access to the record is governed by the specific provisions of that statute. Utah Code § 63G-2-107(1)(a). And if the requested record is an education record as defined in the Family Educational Rights and Privacy Act (“FERPA”), 34 C.F.R. § 99, then the records are governed by those laws and regulations.

The record sought here was the same exact record at issue in Kummer I. Respondent argues that Petitioner’s request for the record is barred because his wife’s request in Kummer I essentially grants him the same access to the record and thereby makes his request duplicative. GRAMA relieves a governmental entity from responding to a request that “unreasonably duplicates prior record requests from that person.” Utah Code § 63G-2-201(7)(a)(iv). However, we aren’t persuaded by this interpretation.

Subsection 201(7)(a)(iv) relates to duplicative requests “from that person” who made the prior requests. According to GRAMA’s definition, a “person” means “an individual.” Utah Code § 63G-2-103(17)(a). Mrs. Kummer is the individual who filed a request for the subject record previously. Petitioner is his own individual who seeks the same record now. Nothing in GRAMA disqualifies spouses from filing separate requests for the same record. Accordingly, we find that Petitioner’s request for the gymnasium surveillance video is not duplicative of the request made in Kummer I.

Respondent proceeds to argue that even if Petitioner’s request is not duplicative, access is still restricted under FERPA and it reasserts mostly the same arguments it advanced in Kummer I, with the exception to a new argument we discuss below. In response, Petitioner makes the same arguments Mrs. Kummer made in Kummer I. With both parties putting forward the same arguments from before on this subject record, we, of course, follow the same line of reasoning we had in concluding that the records must be disclosed.

FERPA is a federal law that protects a student’s privacy by “limiting the transferability of their records without their consent.” U.S. v. Miami Univ., 294 F.3d 797, 806 (6th Cit. 2002). FERPA’s protections over student privacy apply only to “education records,” which it defines as “those records, files, documents, and other materials which . . . contain information directly related to a student” and are “maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A).

As we noted in Kummer I, the courts that have examined FERPA disputes have instructed that the contents of a record are irrelevant in determining if a record constitutes an “education record” under FERPA. Bryner v. Canyons School Dist., 2015 UT App 131, ¶20 (“Notably, Congress made no content-based judgments with regard to its ‘education records’ definition.”) (quoting Miami Univ., 294 F.3d at 812). Thus, in determining whether a record is an “education record” the central question is whether the record directly relates to the student. See Kummer I at 4-5.

In Kummer I, we found through an in camera review that the requested surveillance video did directly relate to A.K. and, therefore, was an education record. Kummer I at 5. Therefore, we find that determination to apply here as well.

As in Kummer I, Petitioner argues that Bryner v. Canyons School Dist. controls the disposition of the case. To this, Respondent raises a new argument it didn’t raise previously; that being that GRAMA’s Section 107 was amended one year after Bryner and effectively abrogates its holding. However, in looking at the text of Subsection 107(2)(c) and a close analysis of Bryner, we don’t agree. Bryner stood for the proposition that as long as the video footage was redacted, FERPA no longer governed the record and it could be disclosed under GRAMA. In our reading, nothing in the statute supersedes Bryner and nullifies its holding.

Therefore, we find that as Petitioner is willing to pay for redactions of the students’ faces, Respondent has a duty under GRAMA to make those redactions and deliver the requested video.

Since the FERPA issue here is identical with Kummer I, which is currently pending judicial appeal (Sevier County School Dist. v. Shana Kummer and Utah State Records Committee, case no. 230600084, (Sixth Dist. Court), we hereby bifurcate this matter so that Respondent may seek to join our determination here on the surveillance video with that appeal if it so chooses.

ORDER

THEREFORE, in accordance with our Decision above, Respondent shall redact the personally identifiable information of all students in the gymnasium video footage, except for A.K. and then deliver the requested video to Petitioner. In accordance with Kummer I, the Respondent may charge Petitioner a reasonable fee to cover the costs of redaction.

The remainder of this proceeding is continued to a later date to allow the Committee the opportunity to review the records in camera. A new order will be issued concerning those records when we reconvene and decide this matter.

It is so ordered.

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 28 day of November 2023

BY THE STATE RECORDS COMMITTEE

Kenneth R. Williams
Chair, State Records Committee