State Records Committee Appeal Decision 23-55


DENNIS ROMBOY (for Deseret News), Petitioner, vs



Case No. 23-55

By this appeal Dennis Romboy, a reporter for Deseret News, (“Petitioner”), requests records allegedly held by, the University of Utah, Utah State University, Weber State University, Utah Valley University, and Southern Utah University (collectively, “Respondents”). Respondents all agreed to have their GRAMA appeal consolidated and heard in a single hearing. Additionally, they were all represented by the same legal counsel. Accordingly, this Decision and Order, applies with equal force to each.respective university.


In 2014, a group of collegiate Division I athletes filed multiple antitrust complaints against the National Collegiate Athletic Association (“NCAA”). The students argued that the NCAA was violating Section 1 of the Sherman Antitrust Act by restricting “the compensation they may receive in exchange for their athletic services.” National Collegiate Athletic Association v. Alston, 141 S.Ct.2141, 2151, 210 L.Ed2d 314 (2021). Up to that time, the primary benefits a student-athlete could receive under the NCAA rules in connection with their athletic performance were education-related benefits—scholarships, for example. But in 2021, the U.S. Supreme Court held that the NCAA restrictions went beyond the line that the Sherman Antitrust Act allows. The notable concurrence by Justice Kavanaugh sums the decision:

Everyone agrees that the NCAA can require student athletes to be enrolled students in good standing. But the NCAA’s business model of using unpaid student athletes to generate billions of dollars in revenue for the colleges raises serious questions under the antitrust laws. In particular, it is highly questionable whether the NCAA and its member colleges can justify not paying student athletes a fair share of the revenue on the circular theory that the defining characteristics of college sports is that the colleges do not pay student athletes. And if the asserted justification is unavailing, it is not clear how the NCAA can legally defend its remaining compensation rules.
. . .
The NCAA is not above the law. Id. at 2168 (Kavanaugh, J., concurrence).

Since then, the natural results of the decision have begun to emerge. College athletes throughout the country have enjoyed the benefits of entering into Name, Image, and Likeness (“NIL”) deals with businesses, brands, and school booster clubs. Indeed, 85 scholarship football players from the University of Utah recently made nationwide news for receiving brand new Dodge Ram 1500 Big Horn trucks provided by the “Crimson Collective,” the university’s NIL group supporting Utah athletics. [1]

Many questions arise with these NIL deals. How much are students being paid for their likeness? How are the schools handling the contracts? How are the universities ensuring the deals are compliant with applicable law and NCAA regulations? Is there a disparity between male and female athletes entering into these deals that would implicate possible Title IX violations? And more. The public debate on NIL deals in college sports has only just begun as these deals begin to proliferate. Many believe these contracts are private agreements between the student and the business or provider. Others believe that by virtue of the connection to a public university, these deals deserve transparency in relation to the school’s oversight.

Some states have responded to Alston by enacting legislation to address NIL deals. Those new laws place certain provisions on colleges and athletes that can include, for example, allowing athletes to hire agents, requiring athletes to disclose their agreements to their colleges, or prohibiting endorsements of morally questionable industries like tobacco, alcohol, gambling, and others.[2] Additionally, as of February, 2023, seven states—California, Connecticut, Georgia, Nebraska, New Jersey, South Carolina, and Tennessee—had specifically enacted laws that potentially open NIL contracts to public disclosure.[3] Connecticut, Kentucky, Nebraska, and Louisiana passed laws that, at least partially, put some restrictions on disclosing the contracts to public requesters.[4]

In Utah, there are no laws concerning NIL contracts, and no laws expressly governing their disclosure under our public record laws. The issue is one of first impressions—a new legal frontier—for players, colleges, businesses, and now, the Utah State Records Committee.


In May 2023, Petitioner filed multiple records requests with the Respondents pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, he requested of each respective university “copies of all NIL contracts and written agreements'' submitted to them from January 2022 to the present.” Petitioner also requested “the compliance office’s response to the [contracts’] submission, whether it was approved or disapproved, and any documentation accompanying the response.”

The records manager at each University denied the request, determining that the requested records are education records governed by the Family Education Rights and Privacy Act (“FERPA”), which prohibits their disclosure. The Petitioner timely appealed to each university’s chief administrative officer (“CAO”). In separate written decisions, the CAOs denied his appeal. Although there are some minor differences in the denials, each argued that GRAMA has no applicability to FERPA education records and, even if it did, the records are not subject to disclosure under GRAMA.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAOs’ decision. On October 19, 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.


We must determine, first, whether NIL contracts are governed by FERPA or GRAMA. Second, if we find that the contracts are governed by GRAMA, we must then determine whether the records are properly classified and if they can be disclosed.


I. FERPA and its Applicability to the Requested NIL Contracts
Under Utah’s public record laws, “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, “[t]he disclosure of an education record as defined in the [FERPA], 34 C.F.R. Part 99, that is controlled or maintained by a governmental entity shall be governed by the [FERPA], 34 C.F.R. Part 99. Utah Code § 63G-2-107(2)(c).

FERPA is a federal law that prohibits federal funding of schools that have “a policy or practice” of permitting the release of a student’s education records without written consent. 20 U.S.C. § 1232g(b)(1). If the education record contains personally identifiable information, the parent or student must provide a signed and dated written consent before the educational institution discloses the record. 34 C.F.R. § 99.30(a). However, the law contains a possible carveout where consent is not required to release education records if all personally identifiable information is withheld. 34 C.F.R. § 99.31(b)(1). Of course, the applicability of these regulations necessarily rests on whether the requested records satisfy the definition of “education records.”

The parties both lend considerable time to FERPA’s governance of the NIL contracts and how to interpret FERPA’s carveout that seems to allow disclosure of redacted records. Whether this Committee can venture into FERPA records depends on the interpretation of Utah Code § 63G-2-107(2)(c). Respondents argue that the Subsection 107(2)(c) expressly makes FERPA records entirely off limits to the Committee, and that the carveout FERPA offers in Subsection 99.31(b)(1) applies only to the disclosure allowances outlined in the preceding Subsection 99.31(a). On the other hand, Petitioner argues that Subsection 107(2)(c) doesn’t bar this Committee from ordering the disclosure of a FERPA record, especially since FERPA itself allows for disclosure of a redacted education record under Section 99.31(b)(1). If the NIL contracts are “education records” as FERPA defines that term, we would have no choice but to address these arguments. However, the facts before us show that FERPA has no applicability to the contracts at issue. We explain.

FERPA defines “education record” as “those records that are (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.” 34 C.F.R. § 99.3. It’s no question that the contracts are directly related to the students who entered into them. Therefore, the analysis turns on how the contracts are maintained. We look to the U.S. Supreme Court for guidance, which, in 2002, interpreted FERPA’s definition of “education records” and what it means for them to be “maintained by” the educational institution. Accordingly, the principles the High Court outlines in determining whether a record is an education record under FERPA are as instructive as they are binding.

In Owasso Independent School Dist. No. I-011 v. Falvo, 534 U.S. 426, 122 S.Ct. 934 (2002) the Court had to determine if a teacher sharing students’ tests, papers, and assignments amongst other students for peer-grading purposes constituted a FERPA violation. In the 9-0 decision, the Court first acknowledged the appellant’s argument that education records consisted of “institutional records” which are “those materials retained in a permanent file as a matter of course . . . records maintained by an educational agency or institution generally would include final course grades, student grade point averages, standardized test scores, attendance records, counseling records, and records of disciplinary actions”--essentially, records relating to the student’s enrollment at the institution. Id. at 431-32 (internal quotations omitted). In the thrust behind its holding, the Court accepted the argument that “education records” are the institutional records the petitioner’s argue. Infra. p. 8.

Next, the Court analyzed the word “maintain” as it’s used in the definition of “education records.” To this, the Court ruled that “[t]he word ‘maintain’ suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled.” Id. at 433.

The Court then made other points to help indicate whether a record is an education record under FERPA. Namely, FERPA requires a “record of access” be kept with the student’s education records that lists the individuals who have requested access to a student’s education records along with their reason for doing so. 34 C.F.R. § 99.32(a)(1)-(3). The Court also found that FERPA requires a “school official or his or her assistants” to be responsible for the custody of the record (see 34 C.F.R. 99.32(c)(2)). According to the Court,
[t]his suggests Congress contemplated that education records would be kept in one place with a single record of access. By describing a “school official” and “his assistants” as the personnel responsible for the custody of the records, FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar, . . .” Id. at 434-35 (emphasis added).

Additionally, the Court noted that FERPA “provides parents with a hearing at which they may contest the accuracy of their child’s education records.” Id. at 435. From these points, the Court deduced its holding that peer graded assignments were not education records under FERPA, and we apply the same principles to NIL contracts to reach our conclusion.

At the hearing, the Respondents testified that each university treats NIL contracts in their own way. Respondents’ attorney stated that some of the universities contract with a third party to hold the contracts while others might handle them differently. If a university contracts with a third-party to maintain the contract, the student uploads the contract into the platform after its execution. The platform then delivers the contract to the university’s compliance officer by way of an email and notification through the platform’s application, both of which allow the officer to then open the contract on their university computer or phone. The compliance officer doesn’t retain a copy of the contract but reviews it for NCAA eligibility compliance purposes.

A college student’s education records (institutional records) are typically held by a single custodian—typically, a registrar. See Owasso at 435. However, according to the Respondents’ attorney at least some universities contract with a third-party platform to hold the NIL contracts off the university’s premises. Not only are the NIL contracts not downloaded and retained by the universities, they are not associated in any way with the student’s educational records that are kept in the registrar’s office. Further, it is self-evident that the contracted third-party is not a school official or assistant to which FERPA designates as the custodian of education records. The fact that the contracts are maintained by a third-party who is not a school official strongly indicate that the NIL contracts cannot be considered education records under FERPA.

Furthermore, even if the third-party platform was “a party acting for the educational agency or institution”—a school official—as FERPA requires, the records are still segregated from the student’s institutional records and held off-site. We don’t believe this arrangement comports with the interpretation the Owasso decision came to. The Court made clear that “FERPA implies that education records are institutional records kept by a single central custodian. . . .” Id. at 435 (emphasis added). But an NIL contract is a commercial contract, not an institutional one. The agreement has nothing to do with the athlete’s university enrollment, grades, scores, attendance, counseling, or disciplinary records. Instead, the contract pertains to the student’s name, image, likeness, athletic ability, and requirements of the athlete under the agreement. Thus, in addition to not satisfying the maintenance and custodian requirements, the contracts by their nature are not educational records.

Owasso’s additional points bolster this conclusion. For instance, under Section 99.20 of FERPA, students and parents have a legal mechanism to request education records be amended if they are inaccurate, misleading, or violate the student’s privacy. However, we cannot imagine that, upon a student’s request, a university can unilaterally amend an executed NIL contract. Not only does this fail to comport with basic contract law, but the universities are not even parties to these contracts. Moreover, as FERPA requires the university to keep a “record of access” with the education records detailing the individuals who requested access to the education records and their reasoning for doing so, how can a university satisfy this requirement if it doesn’t maintain the contract?

We acknowledge that some universities may not utilize the third-party platform that others do. However, we’ve received no evidence showing that any university maintains the NIL contracts in accordance with FERPA’s requirements. This, of course, is the Respondent’s burden to prove. See Shroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶27 (citing Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26) (“[t]he government has the burden to establish that a document falls into one of these nonpublic categories.”). Additionally, we’ve received no evidence that the NIL contracts are institutional records as Owasso determined. Therefore, our decision applies to all of the Respondents named in this appeal.

In careful examination of FERPA’s text, and in conjunction with Owasso’s guidance, we find that because they are not maintained by the Respondents and kept by single central custodian who is a school official, such as a registrar, the NIL contracts at issue do not satisfy FERPA’s definition of “education records.” Consequently, if NIL contracts are not education records, then FERPA does not apply here.

II. GRAMA’S Applicability to the Requested NIL Contracts

If FERPA doesn’t apply to NIL contracts, can they be considered public records at all and subject to Utah state records laws?
GRAMA governs access and disclosure of public records. To ascertain whether an NIL contract is a public record, we must first determine if it is a record under GRAMA. In defining “record,” GRAMA provides:
(25)(a) “Record” means a book, letter, document, paper, . . . or other documentary material regardless of physical form or characteristics:
(i) that is prepared, owned, received, or retained by a governmental entity or political subdivision; and
(ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.

Utah Code § 63G-2-103(25)(a).

As discussed above, the Respondents don’t maintain the records. “The ordinary meaning of the word ‘maintain’ is ‘to keep in existence or continuance; preserve; retain.’” Owasso Independent School Dist. No. I-011 v. Falvo, at 433 (emphasis added) (citing Random House Dictionary of the English Language 1160 (2d ed. 1987). Thus, we find it safe to say that the word “maintain” is synonymous with “retain” for purposes of GRAMA. But retention of records is not the only question. As governmental entities, GRAMA doesn’t solely require document retention as the qualifying element to make a record. Rather, retention is just one optional requirement among four. If a governmental entity prepares, owns, receives, or retains a document, and the document is reproducible, it is a “record” under GRAMA. Due to GRAMA’s deliberate use of the word “or,” entities must satisfy any one—and only one—of the four requirements under the definition.

Although the third-party vendor actually maintains the NIL contracts, the Respondents receive the contracts when the platform sends the compliance officer a notification and email that both contain immediate access to the contract. The compliance officers are employees of the Respondents who have the contracts in their possession for as long as they need to review them. Thus, through this review process it’s clear that the Respondents receive the contracts, which, in turn, creates a record under GRAMA. As a result, we conclude that the NIL contracts are records and subject to GRAMA.

III. NIL Contracts Are Public Records Under GRAMA

Having established that NIL contracts are records subject to GRAMA rather than FERPA, we now turn to the issue of disclosure.

As noted above, 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). Records are considered public “unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). That is to say, “a record that is private, controlled, or protected” under GRAMA is not a public record. Utah Code § 63G-2-201(3)(a). Because records are presumed to be public, “[t]he government has the burden to establish that a document falls into one of these nonpublic categories.” Shroeder, ¶27

Respondents argue that even if FERPA doesn’t shield NIL contracts from disclosure, the contracts still may not be disclosed under GRAMA because they are classified as private under Section 63G-2-302 and protected under Section 63G-2-305.[5] Specifically, Respondents point to Subsection 302(2)(b) which states that “records describing an individual’s finances” are private; and Subsection 302(2)(d) which makes private “other records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.” Utah Code §§ 63G-2-302(2)(b); -302(2)(d).

GRAMA generally does not provide that entire contracts are private. In fact, nowhere in all of Section 302 are the words “contract” or “agreement” found. Therefore, we begin the analysis of NIL contracts’ GRAMA classification with the presumption that they are public records.

Subsection 302(2)(b) makes private any records that describe an individual’s finances. To our knowledge, the courts have not spoken on what this provision means and to what detail financial information must be described in a record to trigger this protection. However, on the whole, we see no evidence that the contract describes the athlete’s finances. Contracts generally detail covenants, conditions, and restrictions on two parties who mutually assent to the terms. While a contract may contain a contract price, it typically is not comprised of information that describes the parties’ finances, like account statements or other financial statements and reports. Therefore, as it relates to the contracts overall, we find that Subsection 302(2)(b) does not bar their disclosure.

With respect to Subsection 302(2)(d), this provision privatizes records which, if disclosed, would constitute “a clearly unwarranted invasion of privacy.” For this provision to be operational, the subject of the records must first enjoy an expectation of privacy. And even if there is an expectation of privacy, GRAMA states that the invasion must be unwarranted. Thus, there is a two-pronged approach to determine whether the NIL contracts are private under Subsection 302(2)(d).

It seems axiomatic that an athlete signing a contract to exploit his or her name, image, and likeness into the marketplace for pecuniary gain loses an expectation of privacy. It’s been published that student athletes are required to sign broad privacy waivers, including agreeing to disclose their education records to the NCAA.[6] Additionally, at least one court has held that student athletes “normally and reasonably forgo a measure of their privacy in exchange for the personal and professional benefits of extracurricular activities.” Hill v. Nat’l Collegiate Athletic Ass’n, 865 P.2d 633, 637 (Cal. 1994) (en banc). To be clear, we don’t believe that a student athlete forfeits all privacy rights just because they play a sport for their school, but it’s evident that, at least for college athletes who are legal adults and playing sports that generate substantial sums of money for the university, some degree of privacy appears to be relinquished.

Respondents argue that the expectation of privacy is in the contract itself, not the athlete. However, this argument discounts the fact that courts have long held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577 (1979).[7] This is true even when the material being shared with a third-party is of commercial nature. U.S. v. Miller, 425 U.S. 435 (1976) (ruling there is no expectation of privacy in the contents of checks and deposit slips because they are negotiable instruments used in commercial transactions).[8] Here, the athlete uploads their NIL contract into the third-party platform and consents to the platform delivering the contract to the university’s compliance officer for review. Not only is the athlete voluntarily turning their contract over to two third-parties–the application platform and the university–but the loss of privacy expectation is parlayed by the fact that the university is a governmental entity beholden to GRAMA and any document it receives becomes a presumptive public record. It stands to reason that, generally, one cannot argue an expectation of privacy in documents it turns over to a governmental entity.

The Utah legislature was aware that turning commercial contracts and documents over to a governmental entity would curtail a person’s privacy expectations. For this reason, lawmakers enacted Section 63G-2-309, which allows any person to assert a claim of confidentiality over the record they provide to the governmental entity if the record contains information protected under certain provisions of Section 63G-2-305, and the person adheres to Section 309’s requirements. Utah Code § 63G-2-309.

To assert a confidentiality claim, the protected information must fall under at least one of the following provisions (1) -305(1): trade secrets; (2) -305(2)(a)-(c): commercial information, as long as (i) the information obtained could result in unfair competitive injury to the person, (ii) the person has a greater interest in prohibiting access than the public does in obtaining access, and (iii) the person has provided the governmental entity with the additional information required by Section 309; (3) -305(40)(a)(ii): a higher educational institution’s unpublished notes, data, and information relating to research; and (4) -305(40)(a)(vi): confidential information contained in research proposals that belong to a higher educational institution. Utah Code § 63G-2-309(a)(i)-(ii). Notably, the legislature did not list commercial contracts in general as a protected record to which a person could claim confidentiality over.

Accordingly, we find that the athletes lose any expectation of privacy they might have had when they deliver their NIL contract to a third-party platform and then consent to their university receiving a copy to review.Without a proper confidentiality claim submitted at the time of the record, we find no provision in GRAMA that shields entire contracts from public disclosure. Even if a proper confidentiality claim was asserted with a contract, we can’t say that a compliant confidentiality claim would protect NIL contracts in their entirety since the Respondents would have to show that the four protections Section 309 covers would necessitate withholding the entire contract. Therefore, we find that the NIL contracts are indeed public records and generally subject to disclosure.

IV. Disclosure Versus Private Information

In finding that the NIL contracts are public records when they are received by the Respondents, we are not ignorant to the fact that, although the contracts as a whole are public records, they may contain sensitive pieces of information that do warrant GRAMA’s protections. As a result, we now address the manner in which the contracts must be disclosed.

First, GRAMA states that if a record contains information that constitutes both a public record and private, controlled, or protected information, the governmental entity may withhold the information the requester is not entitled to inspect as it delivers the remainder of the record. Utah Code § 63G-2-308(1)-(2). Thus, if an NIL contract contains information that describes an individual’s finances or information that, if revealed, would constitute an unwarranted invasion of personal privacy, that information may be redacted before disclosure. Therefore, in accordance with Section 308, if the NIL contracts contain information that is private under either 63G-2-302(2)(b) or 63G-2-302(2)(d), Respondents may redact that information only. For clarity on redactions pursuant to Subsection 302(2)(d), because these are Name, Image, and Likeness contracts, the athlete holds no privacy interests in their name, position, sport, school, or other aspect of their identity and athletic persona to which the contract applies. The privacy interests the athletes do retain are their addresses, phone numbers, email addresses, and contact information that could expose them to unwanted personal contacts and possible harassment.

Second, because GRAMA allows a confidentiality claim over certain commercial information, Respondents may of course redact the information protected under Subsections 305(1), (2), (40)(a)(ii), and (40(a)(vi) as a result of a properly submitted confidentiality claim submitted to the university with the contract, as required and provided by Section 63-2-309.

V. Conclusion

We understand that, without reading our analysis, many may conclude that our decision on this issue entirely disregards the interests of the student athletes who enter into these NIL contracts. In the public forum, many may voice that the public has no business to know the private contractual details university students enter into on their own accord. We are sensitive to these sentiments and wish to make it clear that our decision today was not driven by policy preferences or even by the authority the law grants us to weigh the parties’ interests and decide on our own which interests are more prevailing (see Utah Code § 63G-2-403(11)(b)). Rather, as this decision shows, we took the text of the applicable law and governing court rulings and applied them to the facts surrounding these NIL contracts just as we are required to do under Utah Code § 63G-2-403(12)(a)-(b). Our decision was the deductive result.

It’s well known that the NCAA coined the term “student athlete” in response to lawsuits that college athletes were waging against schools for worker’s compensation claims.[9] Since then, the NCAA and colleges alike have stressed that collegiate athletes be referred to only as “student athletes.” The term has become an accepted label within the national nomenclature with institutions emphasizing the “student” first. With the word “student” so strongly highlighted as the primary identity of the college athlete, it’s understandable that a decision requiring the release of a student’s contract would incite strong opinions. However, we underscore the fact that these contracts aren’t entered into by high school or junior high athletes. The NIL contracts being requested are signed by legal adults who play sports for a public institution and agree to share that contract with a governmental entity. When those contracts are shared with a public institution, they become a government record under statute. Once GRAMA is invoked, we have no choice but to take the law as it is and apply it in order to effectuate its policy of recognizing “the public’s right of access to information concerning the conduct of the public’s business.” Utah Code § 63G-2-102(1)(a). Considering the public interest in college sports, the fandom, and immense revenue our public institutions capture from athletics, it’s apparent to us that a university compliance officer reviewing these contracts to ensure players’ eligibility under the rules is indeed conducting the public’s business.

No evidence has been presented to us that NIL contracts are being held in accordance with FERPA. Relying on the U.S. Supreme Court as our guide, we concluded the federal law cannot apply. In turn, under careful analysis, we find nothing under state law that restricts access to the contracts once they become a public record. It is from our own discretion that we attempt to balance the interests by allowing certain sensitive information in the contract to be redacted before disclosure. Consequently, if, despite our careful reasoning, public policy dictates that NIL contracts should be restricted from public access, we believe the legislative process to achieve that result is much more preferable than this Committee attempting to force an interpretation of the statute that cannot be supported.

We base our decision on the text of the law, our reasoned analysis, and nothing more.


For the reasons detailed in this decision, Petitioner’s appeal is hereby GRANTED. Each named respondent shall deliver the requested records to Petitioner, redacting them only in accordance with this decision.

It is so ordered.


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.


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 30 day of October 2023


Kenneth Williams
Chair, State Records Committee

1. Kalan Hooks, Utah football players receive trucks from NIL partnership,, Oct. 5, 2023 (

2. Cate Charron, Everything we know about NIL law & policy (so far), Student Press Law Center, Feb. 22, 2023 (

3. Frank D. LaMonte & Rachel Jones, Blowing the Whistle on NIL Secrecy: College Athlete Endorsement Agreements and State Freedom-of-Information Laws, 95 Temp. L. Rev. 257, 265, fn. 51 (2023).

4. Id.

5. We’ve examined the Respondents’ claim that Section 305 protects the contracts, but find it inapplicable here. Section 305(2) requires a confidentiality claim be asserted when the record is given to the governmental entity. Not only is there no evidence showing a confidentiality claim was properly submitted with the NIL contracts, but the confidentiality applies only to certain types of information in the record. We discuss this infra p. 13. Because we find that Section 305 is inapplicable, we focus on the Section 302 classification.

6. Michael Bragg, FERPA Defense Play: Universities Often Cite the Federal Student Privacy Law to Shield Athletic Scandals, STUDENT PRESS L. CTR. (Mar. 21, 2015), (

7. See also U.S. v. Miller, 425 U.S. 435, 442-44 (1976); Couch v. U.S., 409 U.S. 322, 335-336 (1973); U.S. v. White, 401 U.S. 745, 752 (1971) (plurality opinion); Hoffa v. U.S., 385 U.S. 293, 302 (1966); and Lopez v. U.S., 373 U.S. 427 (1963).

8. We observe that checks may be more sensitive to privacy issues since they contain routing and bank account information. Nonetheless, just as a check indicates the payor, payee, amount, and even a line to provide the reason for the payment, a contract is similar in its structure in that it has an offeror, offeree, consideration, and terms.

9. Johnny Smith, The Job is Football: The Myth of the Student-Athlete, ORGANIZATION of AMERICAN HISTORIANS, (