State Records Committee Appeal Decision 2024-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

MICHAEL SMITH, Petitioner, v.

CANYONS SCHOOL DISTRICT, Respondent,

DECISION AND ORDER

Case No. 24-05

By this appeal, Michael Smith (“Petitioner”), requests records allegedly held by Canyons School District (“Respondent”).

FACTS

At the end of the 2023 baseball season, Petitioner and other parents and players of the Brighton High School baseball team have the opportunity to evaluate and provide feedback on the baseball coaches’ performance in the “2022-2023 Brighton High School Postseason Athletics Review.” This information is gathered by the school’s Assistant Principal and shared with the principal and athletic director. The surveys present multiple questions in which the answers are based on a satisfaction scale of 1 to 5 and the player or parent circles the number best representing their feelings on the subject matter of the question. Also, there is one element of the survey where the player or parent can provide a narrative and detailed answer as feedback to the school. This player and parental feedback is one of the tools utilized by the school’s principal in making employment decisions among the coaching staff for the following season.

On August 3, 2023, Petitioner submitted a request to Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested the following: “All submitted surveys for 2022-2023 postseason Athletics Review for Brighton High School Baseball program. Title of document is ‘2022-2023 BHS Postseason Athletics Review.’"

On August 9, 2023, the Respondent denied the request saying that “Brighton’s administration shares the results with its coaches during annual evaluations and uses the data to set performance goals and make staffing decisions. Per Utah’s GRAMA law (63G-2-302)(2)(a), Canyons District classifies employee performance evaluations as private.” On the same day, Mr. Smith appealed the denial to the Respondent’s chief administrative officer who upheld the original decision.

Petitioner has now appealed to the State Records Committee (“Committee”). On January 4, 2024, 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 student and parental evaluations of the baseball coaches are correctly classified and withheld.

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). However, if a record is classified as private, controlled, or protected, then it is not a public record. Utah Code § 63G-2-201(3)(a). Section 302 classifies as private any “records concerning a current or former employee of . . . a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities, . . .” Utah Code § 63G-2-302(2)(a). If a record is correctly classified as private, this Committee has the authority to “[weigh] the various interests and public policies pertinent to the classification and disclosure or nondisclosure” and order that the records be disclosed 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).

At the hearing, the Committee moved to view the records in camera pursuant to Subsection 63G-2-403(9)(a). Upon doing so, we make the following findings.

The evaluations are simple questionnaires that essentially direct the player or parent to answer each question by indicating their satisfaction level on a scale from 1 to 5. From the survey, only four questions apply to the baseball program generally. All other questions apply to the coach or coaches and their performance during the season. Respondent testified that these surveys are used to conduct an overall evaluation of the coaches but are not part of the coach’s individual personnel file. Rather, the returned surveys are retained in a Google drive folder.

While Respondent argues that these informal player and parent surveys constitute the “performance evaluations” contemplated by Subsection 302(2)(a), Petitioner essentially argues in response that Subsection 302(2)(a) does not shield the records because they are merely feedback provided by players and parents and are a public record. Whether an informal survey could constitute a “performance evaluation” of a public employee is an interesting question, we ultimately find that Subsection 302(2)’s breadth pulls the surveys under its umbrella. The statutory language is more encompassing than restrictive. The language states, “records concerning a current or former employee . . . , including performance evaluations. . . .” Utah Code § 63G-2-302(2)(a). This means that any record that concerns a public employee is private, and performance evaluations are just an example. See Utah Code 68-3-12(1)(f). Therefore, because the surveys contain questions directly related to the coach, the surveys do concern him as an employee of the high school. Consequently, we find that to the questions pertaining to the coach, that information is private.

Naturally, questions pertaining to the baseball program in general are not protected under Subsection 302(2)(a) because they concern the program and not an employee. Accordingly, all questions and responses relating to the program are public record and cannot be restricted. However, in doing so, Respondent shall provide anchor points on the survey questions and responses so that Petitioner may understand how the scale of 1 to 5 is weighted (e.g., 1 means very dissatisfied; 3 means neutral; 5 means very satisfied; or whatever the case may be).

In finding that the surveys contain private elements, we now turn to the weighing of interests to determine if access should be granted.

Respondent testified that the coaches work on a largely volunteer basis receiving only a stipend for their compensation. The feedback in the surveys is examined by school administrators and used to constructively assist the coach (or implement appropriate discipline) in improving their overall performance in the coming year. The feedback can be quite personal and detailed, and the information obtained from the surveys have been used in the past to suspend at least one coach and not renew the employment of another. If the surveys were released and they contained derogatory, harsh, or negative feedback, that information could result in embarrassment, humiliation, or reputational damage. For that, we find that the various interests and policies favoring access are not equal to nor outweigh the interests favoring restriction. Accordingly, Respondent may withhold the feedback relating to the coach(es), as it delivers the feedback oriented toward the program. See 63G-2-308.

ORDER

THEREFORE, in accordance with our Decision above, the appeal is hereby GRANTED in part and DENIED in part. Respondent shall release the distribution on the four questions about the baseball program, the four questions and answers that pertain to the baseball program; and shall provide anchors to the survey responses so that Petitioner can understand how the scored answers are weighted. Respondent may then withhold those portions of the surveys that pertain to individual coaches.

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 16 day of January 2024

BY THE STATE RECORDS COMMITTEE

Kenneth Williams
Chair, State Records Committee