State Records Committee Appeal Decision 2023-61

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL CLARA, Petitioner, v.

UTAH STATE BOARD OF EDUCATION, Respondent,

DECISION AND ORDER

Case No. 23-61

By this appeal, Michael Clara (“Petitioner”), requests records allegedly held by Utah State Board of Education (“Respondent”).

FACTS

In July 2023, a news story broke that Utah State Board of Education member, Natalie Cline, was under investigation for certain social media posts. For a month, Cline’s posts were under scrutiny as Respondent conducted its internal investigation into the matter. However, on August 7, 2023, Respondent issued a press release that Cline was cleared of any wrongdoing.

On August 14, 2023, Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the following:

In a recent social media post (see attached), [Utah State Board of Education] members Brent Strate and LeAnn Wood published a letter where in [sic] they state in part … Board Leadership has announced completion of an internal investigation … out of the nine specific areas in the preliminary analysis, board leadership found three areas that they believed needed further review. Information from the review was then presented to the Board during two executive sessions…. I am requesting a copy of the ‘information’ presented to the Board.

On August 18, 2023, USBE Records Officer Ben Rasmussen provided all responsive documents, but withheld the following:

• Two draft letters presented as options to the Board which were not adopted or sent; and
• Records from a complaint filed by a non-elected USBE employee.

The draft letters were deemed protected pursuant to Subsection 63G-2-305(18), and the other records were classified as private under Subsections 63G-2-302(2)(a) and 305(17).

Petitioner appealed the decision to withhold those documents on August 19, 2023, to the Respondent’s Chief Administrative Officer (“CAO”) who failed to respond within 10 business days. Under Utah Code § 63G-2-401(5)(b)(i), the failure of a CAO to respond to a timely appeal constitutes an affirmation of the governmental entity’s decision.

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

The Committee is asked to determine whether the withheld records were classified correctly, and, if so, whether they may be disclosed.

STATEMENT OF REASONS FOR DECISION

Under GRAMA, “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, a record that is private or protected is not a public record. Utah Code § 63G-2-201(3)(a). To assess whether a governmental entity correctly classified a record as private or protected, the law allows the Committee to review the records in camera. Utah Code § 63G-2-403(9)(a)(i)-(ii).

At the hearing, the Committee moved to examine the records in camera. Upon doing so, the Committee makes the following findings.

I. Draft Letters

GRAMA classifies records as protected if they are drafts unless the drafts are otherwise classified as public. Utah Code § 63G-2-305(22). Upon review, we find that the records are properly classified as protected but under Subsection 305(22).

Upon finding that the draft letters are protected, the law directs us to weigh “the various interests and public pertinent to the classification and disclosure or nondisclosure” and, upon doing so, we may “order the disclosure of information properly classified as private, controlled, or protected 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). In performing that weighing analysis, we are instructed by the courts that we must weigh the “specific interests of the parties and the particularized application of the relevant public policies at issue.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶51.

In examining Petitioner’s interests, we find them insufficient to outweigh the particularized policies behind Subsection 305(22). Petitioner essentially argues that the drafts are unlawful drafts because they are the result of a public meeting in which there was no formal vote to issue a letter of reprimand. On the other hand, drafts are protected under GRAMA because they may contain information that is subject to change. For instance, a draft may contain an allegation that has yet to be sustained before it can be included in a final report. An allegation or charge not yet sustained has the potential to ruin an otherwise innocent party’s reputation if it’s released. It’s for this reason that final reports are expressly classified as public records whereas drafts are restricted. Compare Utah Code § 63G-2-301(3)(o). We find that, in comparing the drafts to the final letter that was released, the information contained in the draft letters was preliminary and not sustained, which is presumably why it was excluded from the final letter. As applied to the drafts here, we find that the particularized policy behind Subsection 305(22) outweighs that of Petitioner’s.

II. Remaining Records

The remaining records at issue are a human resources complaint filed by a non-elected employee of the Respondent, along with the investigative summary. Upon reviewing the records in camera, we find that both are correctly withheld but the investigative summary is classified incorrectly.

GRAMA makes private the records concerning a current or former employee. Utah Code § 63G-2-302(2)(a). In reviewing the records, we find that they do in fact concern an employee of Respondent. Nothing in the materials we reviewed falls under the exception to 302(2)(a), which is any records governed by Subsection 301(2)(b) (certain employment related information is a public record). Therefore, we find that the records classified as private under 302(2)(a) are correctly withheld.

The investigative summary was withheld on the grounds that it is protected by attorney-client privilege. While we agree that the record should be withheld, we find it is incorrectly classified as protected for attorney-client privilege.

In Southern Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶33, the Court explained that three elements must be present to invoke a claim of attorney-client privilege: (1) an attorney-client relationship must be present; (2) there must be a transfer of confidential information; and (3) the purpose of the transfer was to obtain legal advice. In examining the investigative summary, we saw the existence of the first two elements, but saw no evidence that the purpose of the transfer was to obtain legal advice. With the investigative summary containing information concerning an employee, the correct classification is that of Subsection 302(2)(a).

In weighing the various interests and policies as GRAMA and Schroeder require, we find that, for similar reasons as those we weighed for the draft letters, the interests here do not favor disclosure. That is, unsubstantiated claims, allegations, or other non-sustained information contained in the investigative summary has the potential to inflame the court of public opinion about any individual(s) named in the summary. When the claims are not sustained, an individual’s reputation can unnecessarily suffer. For this reason, the investigative summary need not be disclosed.

ORDER

THEREFORE, for the foregoing reasons, 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 3rd day of January 2024

BY THE STATE RECORDS COMMITTEE

________________________________
Ken Williams
Chair, State Records Committee