State Records Committee Appeal Decision 24-23

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COURTNEY TANNER, Petitioner, v.

UTAH SYSTEM OF HIGHER EDUCATION, Respondent,    

DECISION AND ORDER

Case No. 24-23

By this appeal, Courtney Tanner (“Petitioner”), requests records allegedly held by Utah System of Higher Education (“Respondent”). 

FACTS

This matter concerns three separate record requests that Petitioner submitted to the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”). The requests were all denied for various reasons with the Respondent’s records officer determining that various provisions of GRAMA shielded the requested records or that no responsive records were available.

Petitioner’s three requests sought the following:

• Any separation agreement, resignation agreement, and letter of resignation submitted and/or signed by David Woolstenhulme.
• All complaints submitted to the Respondent, as well as any findings/investigations on those complaints, about alleged misconduct by Commissioner David Woolstenhulme from August 1,2021 to August 30, 2023.
• All communications (including emails, texts, instant messages) sent and received Utah Board of Higher Education members and/or administrators around allegations of misconduct by Commissioner David Woolstenhulme from January 1,2022 to August 30, 2023.

Petitioner eventually appealed the denials to the State Records Committee (“Committee”). On February 15, 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

    We are asked to determine whether the Respondent performed a reasonable search for the letter of resignation and separation agreements, and then whether the responsive records are properly classified and withheld.

REASONS FOR DECISION

I.    The Letter of Resignation    

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). When a governmental entity receives a record request, the government then has a duty to perform a reasonable search for the requested record. Utah Code § 63G-2-201(7)(b). If the government provides by a preponderance of the evidence that a reasonable search has been performed, then the burden shifts to the petitioner to show, also by a preponderance of the evidence, that the search efforts were not reasonable. Utah Administrative Code R35-1-3(1)(a)-(b).

    Here, the Respondent’s in-house attorney testified that she personally handled the record request and searched through the email server for any and all responsive records that would’ve been submitted or exchanged with Mr. Woolstenhulme. In addition, the Respondent produced the resignation letter to the Committee for an in camera review which indicates that the Respondent also searched Mr. Woolstenhulme’s file. Although no separation agreements were produced, Petitioner has not pointed to any evidence that suggests that the search efforts were not reasonable. Accordingly, we find that the Respondent carried out a reasonable search for the requested record.

    Upon reviewing the resignation letter in camera, we find that it is classified correctly as a private record. GRAMA classifies a record as private if the record “concerns a 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) (cleaned up). The statute’s use of the word “including” is noteworthy. Utah law is clear that the word “including” in a statute “means that the items listed are not an exclusive list, unless the word ‘only’ or similar language is used to expressly indicate that the list is an exclusive list.” Utah Code § 68-3-12(1)(f). Thus, performance evaluations and personal status information are merely a short non-exclusive list of employment-related records that could be classified as private under Subsection 302(2)(a). We find that Mr. Woolstenhulme’s resignation letter obviously concerns him and his public employment, and because the statute is not limited to performance evaluations and personal status information, the letter is correctly classified as a private record under Subsection 302(2)(a).

    Although the resignation letter is a private record, our analysis doesn’t end there. Under GRAMA, if a record is properly classified as private, we are to consider and weigh “the various interests and public policies pertinent to the classification and disclosure or nondisclosure” and order the record 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). In doing so, however, we must be mindful that “the balancing analysis under GRAMA must be tethered to the specific interests of the parties and the particularized application of the relevant public policies at issue.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶51.

    Here, the policy behind making a public employee’s employment records private is to counterbalance GRAMA’s allowance that some employment information be made public. See Utah Code § 63G-2-301(2)(b) (listing an exclusive list of employment-related information that is a public record under GRAMA). That is, by the nature of their employment, public employees necessarily lose some expectation of privacy in their employment records and GRAMA’s Subsection 302(2)(a) aims to balance what privacy is lost by prescribing what may remain protected. However, GRAMA’s protections cannot be viewed in a vacuum. Schroeder explained that weighing general policy interests without focusing on their specific application to the requested records “is problematic because many of the exceptions to GRAMA’s disclosure requirements involve policies that virtually always outweigh the public’s right to know.” Schroeder at ¶55. Therefore, we must look at the particularized interests and policies pertinent to disclosure, not take a general analysis. Id. ¶57.

    Mr. Woolstenhulme was not a standard public employee; he was the commissioner of the Utah Office of Higher Education. This, of course, is no small role and holds significant public interest in how higher education is governed in Utah. His resignation made local news and has been followed by media outlets and the public alike. As we reviewed his resignation letter in camera we found nothing in the letter that would reasonably reveal the identities of the complainants who initiated the chain of events that led to his resignation. From that, we see there are no other privacy interests at stake besides Mr. Woolstenhulme’s. And because he is no longer in his role, the significant public interest in that role, and the media coverage of his resignation, we find that the interests favoring disclosure outweigh the interests favoring restriction and the letter must be released.

II.    The Complaints and Findings

The Respondent denied the request for complaints and findings primarily on the grounds that responsive records are private under Subsection 302(2)(a) and protected under Subsection 305(10). While complaints and findings from investigations are likely associated with a public employee’s personnel file, Subsection 305(10) directly addresses investigatory records. Therefore, we believe -305(10) is the proper provision to analyze.

Subsection 305(10) states in pertinent part that the following records are protected if properly classified by a governmental entity:
(10) records created or maintained for civil, criminal, or administrative purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes; 
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings;
. . .

Utah Code § 63G-2-305(10). Consequently, our inquiries are whether there was a civil, criminal, or administrative process, and whether releasing the records would reasonably interfere with that process.

    The evidence produced to the Committee shows that there were two separate administrative investigations that ensued after complaints were filed—one internal investigation and one conducted by the Title IX Office for the university. The evidence also showed that Mr. Woolstenhulme resigned before either investigation could conclude and, for the internal investigation, a resignation triggers dismissal of the investigation. Consequently, although the internal investigation was never formally completed with a final report and findings, it has been officially closed.

    GRAMA indicates that records for a closed investigation no longer fall under Subsection 305(10). The language in that subsection states that records are protected if their disclosure would “reasonably interfere” with the investigation or proceedings. But here, the internal investigation had ceased and, therefore, could no longer be interfered with. As a result, the records, as they relate to the internal investigation, are not protected by Subsection 305(10). 

As for the Title IX investigation, the Respondent testified that it wasn’t aware of the status of that investigation. Although this is a separate investigation, we are not in a position to speculate as to the effect releasing the records would have on the Title IX investigation. In any case that comes before us, the respondent has the burden to prove that restricting access to the records is both lawful and appropriate. See Schroeder, 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”). As the Respondent has made no showing that releasing the records would reasonably interfere with the Title IX investigation or its proceedings, we find that Subsection 305(10) does not shield the records from disclosure. 

With that said, the Respondent did raise the issue at the hearing that the records constituted drafts that were preliminary to a final report. Under 63G-2-305(22), drafts are protected records. But even conceding that the records were drafts, we find that disclosure is still warranted under a weighing analysis. 

    As discussed above, the public interest in records relating to Mr. Woolstenhulme are significant due to the role he served in before his resignation. To release complaints serves another public interest in allowing the public to understand the repercussive effects of impropriety among high level state officials. Again, given that the investigation has closed, the GRAMA’s protective policy reason behind Subsection 305(10) is weakened below the threshold level required to maintain the records’ restriction. Compare Schroeder at ¶55 (“For example, the interest in protecting attorney work product is more compelling during ongoing litigation than it is years after a dispute has been resolved.”). Accordingly, we find that that the complaints and findings are improperly withheld.

    With that said, we make an important note that upon our in camera review of the records at issue, we found that they contained some information that could draw reasonable conclusions of who the complainants were. To us, it’s significant that the complainants filed their complaints anonymously and wished to remain so. Therefore, full disclosure of the records would constitute an unwarranted violation of personal privacy. 

As a result, we conclude that the Respondent must disclose only the draft version of the final report but with redactions. The Respondent may redact the information that could reasonably be used to identify the complainant; specifically, that information that relates to where and when the alleged misconduct occurred, and indications of the relationship familiarity the complainants had Mr. Woolsenthulme. 

III.    The Communications

The Respondent withheld the requested communications pursuant to Subsection 63G-2-302(a), arguing they are records that concern a former employee. Upon reviewing the records in camera we find that the records can and would reveal the identities of the complainants. As demonstrated directly above, this Committee is sensitive to protecting victims’ identities contained in government records. In Tanner v. Utah State University, Decision and Order no. 24-17, Utah State Records Committee (entered Feb. 26, 2024), we ruled that complaints filed with the University against Mr. Woolstenhulme were protected under Subsections 302(2)(d) and 305(10)(d) because disclosing the complaints would reveal information about “victims, alleged victims, and sources who would not generally be known outside of government.” Id. at 3. Because we find that victims’ information could be discovered here, we find that the communications are properly classified and withheld.

ORDER

    THEREFORE, this appeal is GRANTED in part and DENIED in part. In accordance with this Decision, the Respondent shall deliver to Petitioner those records that we outlined above must be disclosed. Additionally, the Respondent may withhold those records we outlined as able to be restricted.

    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 1 day of April 2024

BY THE STATE RECORDS COMMITTEE

Kenneth Williams
Chair, State Records Committee