State Records Committee Appeal Decision 24-20

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JACK BREWER, Petitioner, v.

UNITAH COUNTY, Respondent,

DECISION AND ORDER

Case No. 24-20

By this appeal, Jack Brewer (“Petitioner”), requests records allegedly held by Uintah County (“Respondent”). 

FACTS

The Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). On October 20, 2023, Specifically, Petitioner requested: all records cross referencing or pertaining to 2023 “PhenomeCon”--a conference that takes place in Vernal, Utah, with a centralized focus on paranormal phenomena. 

Over the course of responses from Respondent and appeals up to and through the Respondent’s chief administrative officer, Petitioner received some records responsive to his request. However, Respondent withheld the agreements it had with the various speakers and presenters for the conference, called “Talent Agreements” (“Agreements”). The Agreements were all created using a standard form which held some minor differences with respect to the respective speakers, such as compensation rates. Respondent delivered the Agreements in heavily redacted form, withholding nearly all of the contract terms pursuant to Subsection 63G-2-305(25) on the basis that Section 13 of the Agreements required the redactions and that the Agreements contained private information, such as personal mailing addresses, email addresses, and phone numbers. Section 13 of the Agreements provides:

13. Confidential. The parties acknowledge that the terms of this Agreement are confidential. Talent shall not disclose the terms of this Agreement to any third-party, except Talent’s attorney, agent or tax professional (on a need-to-know basis only), who shall agree to be bound by the foregoing confidentiality obligation.

Petitioner appealed the redactions to the State Records Committee (“Committee”). He concedes that the personal addresses, email addresses, and phone numbers, may be redacted, he challenges the redactions over all substantive terms of the Agreements. On March 21, 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 Agreements have been properly redacted.

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 classified as protected is not a public record. Utah Code § 63G-2-201(3)(a). Importantly, only records listed in Section 63G-2-305 may be classified as protected and withheld from a person requesting the record. Utah Code § 63G-2-201(4). To determine whether the record is correctly classified as protected, the law allows this Committee to review the records in camera.

    At the hearing, we moved to review the records in camera. Upon doing so, we find not only that Respondent’s reliance on Subsection 305(25) is misplaced, but also that Agreements are not protected under Section 305 at all. 

    Respondent relies on the “Confidential” provision found in Section 13 of the Agreements to bar their disclosure. The argument is that this provision exists because the contracts contain information that, if disclosed, could put the speakers at a competitive disadvantage in the marketplace. Protection of commercial information is addressed in Subsection 63G-2-305(2), not -305(25). 

    Subsection 305(25) protects “records, other than personnel evaluations, that contain a personal recommendation concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal privacy, or disclosure is not in the public interest.” Respondent argues that the clause succeeding the final comma—“or disclosure is not in the public interest”—is broad enough to apply to the Agreements, and that the public interest does not outweigh the interests of protecting the speakers against competitive disadvantage. We don’t agree with this interpretation. When read in context, Subsection (25) refers to employment records that contain a personal recommendation. This is indicated by the initial clause: “other than personnel evaluation.” Because personal recommendations concerning an individual happen in an employment context and the initial clause seeks to exclude personnel evaluations, we believe the statute is contextually addressing employment records that contain personal recommendations of an individual. The Agreements do not concern Respondent’s employees, but outside talent being contracted. Therefore, Subsection (25) is inapplicable.

However, even if the statute is not limited to just employment recommendations, Subsection (25) still doesn’t apply because the Agreements don’t contain personal recommendations concerning an individual. The plain text of Subsection (25) protects personal recommendations that their disclosure “would constitute a clearly unwarranted invasion of privacy, or disclosure is not in the public interest.” Respondent essentially argues that the comma entirely disconnects the final clause from the antecedent personal recommendations, which would allow for any record to be protected if disclosure was not in the public interest. This catch-all interpretation allowing any record to be protected after weighing the public interest is problematic because GRAMA was created on the exact opposite premise: “A record is public unless otherwise provided by statute.” Utah Code § 63G-2-201(2). Moreover, GRAMA also states that “Only a record specified in Section 63G-2-302, 63G-2-303, 63G-2-304, or 63G-2-305 may be classified as private, controlled, or protected.” Utah Code § 63G-2-201(4) (emphasis added). Respondent’s argument that any record can be protected if disclosure is not the public interest fails to satisfy the specificity requirement of -201(4). Indeed, it would be strange if, among the 87 types of records that are specifically described in Section 305, there was a catch-all protection for ‘any record where disclosure is against the public interest.’ We find that neither GRAMA’s policy nor the text itself supports Respondent’s argument. 

Rather than Subsection 305(25), we believe the more applicable GRAMA protection is Subsection 305(2), which expressly protects commercial information. However, the provision goes on to state that commercial information is protected only if three requirements are met: 
(a)    Disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future;
(b)    The person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and
(c)    The person submitting the information has provided the governmental entity with the information specified in Section 63G-2-309.

Utah Code § 63G-2-305(2)(a)-(c). But even assuming arguendo that both Subsections (a) and (b) are satisfied, we find that Subsection (c) has not.

    For a record to be protected because it contains commercial information, Subsection 305(2)(c) requires that the person submitting the information also comply with Section 63G-2-309. There, the law states:
(1)(a)(i) Any person who provides to a governmental a record that the person believes should be protected under Subsection 63G-2-305(1) or (2) or both Subsections 63G-2-305(1) and (2) shall provide with the record:
(A)  a written claim of business of confidentiality; and
(B) a concise statement of reasons supporting the claim of business confidentiality.

Utah Code 63G-2-309(1)(a)(i)(A)-(B). Thus, for a claim of confidentiality to withstand scrutiny, the person submitting the record to the governmental entity must provide both a written claim of confidentiality and a statement of reasons supporting the claim.

In Barnes v. Governor’s Office of Economic Opportunity, Decision and Order no. 23-31, Utah State Records Committee (entered Aug. 1, 2023). Northrop Grummon submitted a separate written claim of business confidentiality with the contract it signed with the governmental entity. Within the written claim was a statement of reasons to support its claim of business confidentiality. Part of our inquiry was whether the claim was submitted with the record or at a later date. We found that Northrop Grummon strictly adhered to the requirements of Section 309 by properly asserting a business confidentiality claim separate from the record itself and at the time the record was provided. Because of that, we upheld the governmental entity’s restriction of access.

    Here, the vendors didn’t provide a separate confidentiality claim at the time they provided the Agreements. The only evidence of any sort of confidentiality claim is Section 13 in the Agreements; however, we find this to be inadequate under what GRAMA requires. In a case very similar to the one before us, Hughes General Contractors v. Wasatch School District, Decision and Order no. 23-63, Utah State Records Committee (entered Jan. 3, 2024), we looked at the school district’s decision to withhold subcontractor lists related to a recent procurement for reasons of business confidentiality. In that case, the vendor stamped the records at issue with a “PROPRIETARY” red stamp that claimed the information contained therein was proprietary to the vendor and release of the information could result in legal action. We determined that “GRAMA contemplates a separate written confidentiality statement be submitted so that it may be retained by the governmental with the records the statement seeks to protect.” Id. (Internal quotations omitted, emphasis added). Similar here, Section 13 asserts confidentiality within the record itself. We find this does not fit what Section 309(1) states.

    Subsection 309(1)(a)(i) states that “any person who provides to a governmental entity a record that the person believes should be protected . . . shall provide with the record: a written claim of business confidentiality; and a concise statement of reasons supporting the claim of business confidentiality.” Utah Code § 63G-2-309(1)(a)(i)(A)-(B). Providing a written statement and reasons with the record is different than providing them in the record. To us, GRAMA clearly indicates that the business confidentiality claim and statement of reasons supporting the claim are to be distinct and separate from the record itself so that the governmental entity can easily identify the confidentiality claim associated with the record and need not search through a potentially lengthy record to find fine print claims of confidentiality embedded somewhere within.

    Where a contract contains a provision requiring one or both parties keep the contract confidential raises an interesting question of law: Does the contract prevail over GRAMA’s requirement that it be a separate written instrument? Due to the facts of the case before us, we need not answer that question at this time because even if the statute could be read to allow a confidentiality claim be embedded within the record itself, Section 309 also requires the vendor also submit a concise statement of reasons to support the confidentiality claim. Here, Section 13 of the Agreements offers no supporting reasons. Consequently, even under a liberal construction of Subsection 309(1)(a)(i), both prongs still cannot be met.

    In conclusion, we find that because the speakers did not provide separate written claims of confidentiality and reasoning to support those claims, they hold no valid claim for business confidentiality over the Agreements. And since GRAMA does not protect final executed contracts generally,  the Agreements are public records and must be disclosed.

    Because Petitioner does not challenge the redactions of personal information contained in the Agreements, we have no need to address them and those redactions may stand, with the exception that in addition to personal addresses, email addresses, and phone numbers, Respondent may redact tax identification numbers belonging to payees on the Agreements upon disclosure pursuant to Subsection 63G-2-302(2)(d).

ORDER

THEREFORE, Petitioner’s appeal is hereby GRANTED. In accordance with this Decision, Respondent shall deliver the Agreements to Petitioner, redacting only personal addresses, email addresses, phone numbers, and tax identification numbers of payees.

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 1st day of April 2024

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee