State Records Committee Appeal Decision 2023-64

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JARED KUMMER, Petitioner, v.

SEVIER COUNTY SCHOOL DISTRICT, Respondent,

DECISION AND ORDER

Case No. 23-64

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

FACTS

In November, 2023, the State Records Committee (“Committee”) heard and decided Kummer v. Sevier County School District, Decision and Order 23-59, Utah State Records Committee (entered Nov. 28, 2023) (hereinafter “Kummer II”)[1]. In that case, we bifurcated the matter, granting the appeal with respect to one particular record and then continuing the appeal for all remaining records due to technology problems that prohibited us from reviewing those records in camera. We now revisit and resume that review. Naturally, because this matter was bifurcated, the facts here are identical to those in Kummer II. Consequently, we give only a brief recounting of the facts as necessary for the records we now examine.

On November 21, 2022, A.K., Petitioner’s daughter, 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 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.

On May 28, 2023, Petitioner filed a 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 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 then appealed to this Committee, which decided in Kummer II to order the gymnasium surveillance video footage be released to Petitioner in redacted form for the same reasoning we put forth in Kummer I. The Committee then continued the hearing on all other record requests. On December 21, 2023, the Committee resumed that hearing during which the parties were allowed to participate. 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.

STATEMENT OF REASONS FOR DECISION

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). A record that is classified as private, controlled, or protected is not a public record. Utah Code § 63G-2-201(3)(a). If a record contains both information that the requester is entitled to inspect and information that the government is entitled to restrict, the government may redact the restricted information. Utah Code § 63G-2-308(1)-(2). To ascertain whether the governmental entity correctly classified records as private, controlled, or protected, 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 moved to review the records in camera. The records at issue consist of 77 documents. From our review, we now arrive at our decision.

A. Records 1-9

The first nine records are email correspondences between SSMS administrators and other individuals such as parents and those affiliated with the Utah State Board of Education. Respondent redacted some names and pronouns within these records on the grounds that releasing them would constitute an unwarranted invasion of personal privacy for the named individuals. See Utah Code § 63G-2-302(2)(d). Respondent argues that because SMSS is central to a small and close community in Monroe, Utah, it wouldn’t be difficult to figure out the identity of the individuals who corresponded with school officials or were otherwise mentioned in the communications. We agree with this argument.

With the only redactions being names and pronouns, we find that the substance of the communications is left untouched, and, upon review of that substance, we find that the records are public records and the current redactions appropriate pursuant to Subsection 302(2)(d).

B. Page 10

Page 10 is a handwritten note that was used and relied on in the administrative investigation. With respect to administrative disciplinary actions, Subsection 63G-2-305(3)(o) provides that records relating to formal charges or disciplinary actions against government employees are public if (i) the disciplinary action has been completed and all timer periods for an appeal have expired; and (ii) the charges on which the disciplinary action was based were sustained. Utah Code § 63G-2-301(3)(o)(i)-(ii). Here, the disciplinary action against the employee orchestrating “endurance day” was sustained and all appeal periods have expired. Consequently, as this handwritten note was used in relation to sustaining that action, it is now a public record and must be released.

C. Page 11

Page 11 appears to be typed notes without an author. Upon review, we find nothing in the note that triggers a protective classification within GRAMA. Utah Code § 63G-2-103(25)(a)(i)-(ii) defines a “record” as “a . . . document, . . . plan, . . . or other documentary regardless of physical form or characteristics: that is prepared . . . by a governmental entity and where all of the information in the original is reproducible by photocopy.” The typed notes satisfy the definition of a “record.” Accordingly, this page is a public record and must be released.

D. Pages 12-13

Pages 12-13 comprise a letter from superintendent, Cade Douglas, to SMSS principal, Michelle Nielson, that provides an update and information on the school district’s formal investigation of the endurance day. As with the first nine records, Respondent seeks to redact names and pronouns of certain personnel mentioned in the letter. For the same reasons we outlined for pages 1-9, we agree that the redactions are appropriate, and the letter may be released with that information withheld.

E. Pages 14-15

Pages 14-15 comprise a letter from principal Nielson to the district’s human resources director, Nolan Andersen. Respondent seeks to redact four substantive portions of the letter. After reviewing the document, we find that:

(1) The first redaction—the second sentence of the opening paragraph—is incorrectly restricted. That sentence is public information and may not be redacted.
(2) The second redaction—item 3 in the letter—is properly redacted since it concerns an individual whom formal charges for disciplinary action was not sustained. Under Subsection 63G-2-301(3)(o), if the formal charges are not sustained, the record cannot be classified as public.
(3) The third redaction—item 5 in the letter—must be unredacted as the charges relating to Kycen Winn were sustained. See § 63G-2-301(3)(o).
(4) The fourth redaction—item 6 in the letter—is appropriately redacted for the same reasons as the second redaction mentioned above.

F. Pages 16-19

Pages 16-19 are the Sevier School District Administrative Counseling Form for Kycen Winn. Respondent seeks to redact certain names within form for the same reasons as those in prior records. We agree that these redactions are appropriate, and the form may be disclosed with the names withheld.

G. Pages 20-40

Pages 20-40 comprise various student injury reports. Respondent seeks to withhold these records entirely under the protections set forth in the Family Educational Rights and Privacy Act, 34 C.F.R. Part 99 (“FERPA”). GRAMA addresses FERPA records by stating “[t]he disclosure of an education record as defined in [FERPA] that is controlled or maintained by a governmental entity shall be governed by [FERPA]. Utah Code § 63G-2-107(2)(c). In Kummer I and Kummer II, we addressed a FERPA record in the form of video surveillance footage of “endurance day.” In that case, we followed the holding in Bryner v. Canyons School District, 2015 UT App 131, which held that when a student’s identifiable information is redacted, the FERPA related portion of the record is withheld and GRAMA can control the unredacted information. From that guidance, we ruled that the video footage must be disclosed in redacted form. See Kummer I and Kummer II. While we are aware that FERPA itself allows for disclosure of FERPA records if the records are de-identified, and while we are aware of our rulings in Kummer I and Kummer II, we find that, in this case, invading FERPA for the student injury reports is inappropriate and we decline to do so.

The student injury reports concern various students and their medical reporting to school officials. We fail to see the relevance of other minor children’s medical reporting to Petitioner’s efforts to gather more information about “endurance day” and the school’s subsequent investigation and administrative actions. Even if there were other students who incurred injury from the gym class, those students’ injuries don’t assist any claims Petitioner has in relation to his own daughter and claims that might possibly be brought on her behalf. Further, even if the records were not governed by FERPA, the information concerns minor children to whom we find an expectation of privacy from other adults not related to them. Without the proper consent and authorization to release the student injury reports, we find that their access may be restricted.

H. Pages 41-45

Pages 41-45 comprise text messages between principal Neilson and human resources director, Nolan Andersen. Within those text messages, Respondent seeks to redact a portion of the messages. Because only a portion of the texts are redacted, Respondent acknowledges that text messages can be public records. See e.g., Henderson v. San Juan County, Decision and Order 19-33, Utah State Records Committee (entered Sep. 23, 2019) (ruling that text messages sent by county official from his personal cell phone could constitute a public record). If text messages can be public records under GRAMA, then it stands to reason that expectations of privacy in those text messages are to some degree diminished. Cf Romboy v. University of Utah, et al., Decision and Order 23-55, Utah State Records Committee (entered Oct. 30, 2023) (ruling NIL contracts become a public record when they are delivered to a public university and the athlete therefore loses their expectation of privacy in the contracts). Consequently, in reviewing the text messages, we find that the redactions are inappropriate for the information they seek to withhold. Both principal Neilson and director Andersen are school administrators to whom GRAMA shines sunlight on the communications they have in their official capacities. Nothing in GRAMA provides a basis for the current redactions. Accordingly, Respondent must lift the current redactions on page 41.

With that said, we do find that other parts of the text messages deserve redaction. Subsection 305(1)(b) makes private “records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or other similar medical data.” The text messages do contain some information related to an individual’s medical treatment and situation. Accordingly, this information should be redacted.

I. Pages 46-56

Pages 46-56 comprise text message communications among various school administrators, including who appears to be director Andersen and superintendent Douglas. Respondent seeks various redactions throughout the messages based primarily on the authors’ privacy. For the same reasons we set forth in the previous section, we find that the school administrators have little, if any expectation of privacy in their official communications. Accordingly, we find that none of the redactions are appropriate and all must be lifted as these messages are all public records.

J. Pages 57-67

Pages 57-67 comprise handwritten notes related to Respondent’s investigation. Respondent argues that the notes are drafts that preceded the investigation report and are therefore protected under GRAMA. Subsection 63G-2-305(22) classifies drafts as protected unless they are otherwise public. However, Subsection 301(3)(k) classifies drafts as public even if they were never formalized as long as the draft was relied upon in carrying out the formal action. In this case, it appears that at least some of the information contained in the notes was later used in the final report. This indicates that to some degree the notes were relied on for the final report. While this seems to imply that the notes should be classified as public, we see that most of these notes pertain to individuals who were the subject of formal disciplinary charges, but whose charges were never sustained. Therefore, we find that although the draft was likely relied on for the final report, the fact that the notes concern individuals whose charges were never sustained. Consequently, the correct classification of this information is Subsection 301(3)(o) which makes public any disciplinary records where the appeal period has been exhausted and the charges were sustained. Since the charges for the individuals mentioned in the notes were not sustained, the notes pertaining to them cannot be public records.

In conclusion, we find that only the notes relating to individuals whose charges were sustained may be released.

K. Pages 68-69

Pages 68-89 are meeting minutes for two separate meetings. The first meeting took place on December 13, 2022, between school and district administrators and the Kummers. The second meeting took place on March 14, 2023, between additional school administrators and the Kummers and their daughter. Upon review of the records, we find that they are public records and must be disclosed.

L. Pages 70-77

The final pages are Respondent’s Internal Investigation Report dated November 28, 2022. While the report is a final report and, therefore, a public record, its findings show that some allegations against certain individuals were not substantiated. As with prior records, if a formal charge is not sustained, the record concerning that charge is not a public record. Utah Code § 63G-2-301(3)(o). Accordingly, we find that the report must be disclosed with exception to any information related to the charges not sustained.

II. Weighing Analysis

Once we determine the proper classification of disputed records, we then weigh “the various interests and public policies pertinent to the classification” and order the records be disclosed if the “interest favoring access is greater than or equal to the interest favoring restriction of access.” Utah Code § 63G-2-403(11)(b). When weighing the various interests and public policies, we are instructed by the courts that we must “focus on particularized interests and public policies pertinent to the classification and disclosure of information, not a general analysis of competing public policies.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶57 (cleaned up) (emphasis original). In other words, “the balancing analysis under GRAMA must be tethered to the specific interests of the parties and particularized application of the relevant public policies at issue.” Id. at ¶ 51.

In our review and determination of the records’ classifications and redactions, we considered Petitioner’s specific interest in the records and weighed them against GRAMA’s policy protections as particularly applicable to this dispute. We are mindful that both Kummer I and Kummer II are currently being litigated in court and we are also aware that the Kummers believe they may have possible legal claims for which the requested records might support. On the other hand, GRAMA guards against invasions of personal privacy as those invasions pertain to individuals who have been under scrutiny for formal disciplinary action but were exonerated or otherwise relieved of the charges. Also, we are mindful of FERPA’s protection over student records, which, in this case, concern various students whose parents have not authorized consent to release their students’ records and nor do we see a valid reason to invoke Bryner’s rule allowing de-identified FERPA records be released. As a result, we find that, upon consideration of the specific interests of the parties and particularized application of GRAMA’s policies to this dispute, the redactions and restrictions we outlined above need not be bothered.

ORDER

THEREFORE, Respondent shall deliver the records in accordance with our Decision above.
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 3rd day of January 2024

BY THE STATE RECORDS COMMITTEE

________________________________
Ken Williams
Chair, State Records Committee

1. Kummer I was decided on Aug. 28, 2023. See Kummer v. Sevier School District, Decision and Order 23-36, Utah State Records Committee (entered Aug. 2023).