Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 2012-07

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ANDREW MORSE, SNOW CHRISTENSEN & MARTINEAU, Petitioner, vs.

CANYONS SCHOOL DISTRICT, Respondent.

DECISION AND ORDER

Case No. 12-07

By this appeal, Petitioner, Andrew Morse of Snow Christensen & Martineau, appeals a denial from Respondent, Canyons School District (“Canyons”), of his request for records pertaining to the grievance proceedings of a former Canyons employee against Canyons School District.

FACTS

In a letter dated December 14, 2011, Mr. Morse submitted a records request to Canyons pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Morse requested “[a]ll documents pertaining to Alta Vice Principal Mark Montague’s grievance procedure against the Canyons School District.”

Mr. Morse’s request was denied through Canyons’ legal counsel, Paul D. Van Komen of Burbidge & White, LLC, in a letter dated December 29, 2011. Canyons claimed that the requested documents could not be disclosed because they were “private” records pursuant to Utah Code § 63G-2-302(2)(a). Canyons also claimed that Utah Code § 63G-2-301(3)(o) did not apply to the requested documents because the “grievance of any disciplinary action has not been completed and the charges on which any disciplinary action were based have not been sustained.” Canyons further claimed that some of the requested records were protected under Utah Code § 63G-2-305 (9), (16), (17), (18), and (25) as attorney client communications, attorney work product and personnel recommendations the disclosure of which would constitute “clearly unwarranted invasions of personal privacy.”

Mr. Morse appealed to Canyons Superintendent, Dr. David Doty, in a letter dated January 24, 2012. The appeal included grounds and legal authority to support release of the records. Mr. Morse claimed that Utah Code § 63G-2-301(3)(o) did apply because the grievance procedure had concluded; that the records were not private under Utah Code § 63G-2-302(2)(a) because the records were about a grievance procedure and not a performance evaluation; and that the attorney client privileges did not apply to the requested records. Dr. Doty denied the appeal based on the records being private under Utah Code §63G-2-302(2)(a), protected under -305(25), and protected under -305(9), (16), (17), and (18).

Mr. Morse now appeals to the Utah State Records Committee (“Committee”). The Committee, having reviewed the arguments submitted by the parties and having heard oral argument and testimony on April 12, 2012, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Pursuant to Utah Code § 63G-2-302(2)(a), “records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information such as race, religion, or disabilities” are private when properly classified by a governmental entity.

3. Pursuant to Utah Code § 63G-2-301(3)(o) “ records that would disclose information relating to formal charges or disciplinary actions against a past or present governmental entity employee are normally public if:
(i) the disciplinary action has been completed and all time periods for administrative appeal have expired; and
(ii) the charges on which the disciplinary action was based were sustained.”

4. After reviewing the arguments submitted by the parties and hearing oral arguments and testimony, the Committee is convinced that Petitioner’s request for records pertaining to the grievance proceedings of a former employee against Canyons were properly classified as private pursuant to Utah Code § 63G-2-302(2)(a) because the records are concerning a current or former employee of a governmental entity. The Committee further finds that the records are not subject to public release under Utah Code § 63G-2-301(3)(o) because the disciplinary action was not sustained.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Andrew Morse, Snow Christensen & Martineau, is DENIED.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) a notice of intent to appeal. If the government entity 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.

Entered this 20th day of April 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee