State Records Committee Appeal Decision 24-27
BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH
JARED KUMMER, Petitioner, v.
SEVIER SCHOOL DISTRICT, Respondent,
DECISION AND ORDER
Case No. 24-27
By this appeal, Jared Kummer (“Petitioner”), requests records allegedly held by Sevier School District (“Respondent”).
FACTS
On November 21, 2023, the Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested: “a copy of the redacted surveillance footage from [Eric Baker’s] period 1 class on 11/17/22. I request a full copy of the surveillance and I am willing to pay for the redaction of students. I request that all educators or aids remain fully unredacted.”
The records manager for Respondent responded to the request, by denying the request for the video, claiming that the video was not a public record under GRAMA but governed by the Federal Educational Rights and Privacy Act (“FERPA”).
Petitioner appealed the decision to Respondent’s chief administrative officer (“CAO”). The CAO upheld Respondent’s decision saying “the surveillance video you have requested is not subject to the Government Records Access and Management Act (GRAMA). See Utah Code Ann. §63G-2-107(2)(c). The video is an education record governed by the Family Educational Rights and Privacy Act (FERPA). FERPA does not allow us to provide these items without consent. See U.S.C. §1232g.”
Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On April 18, 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 video may be subject to GRAMA’s disclosure requirements and if it should be disclosed.
STATEMENT OF REASONS FOR DECISION
Currently on appeal before the Third District Court is Kummer v. Sevier County School District, Case No. 230600084 (3rd Dist. Ct.). That case is the consolidated appeal of both Kummer v. Sevier County School Dist. Decision and Order no. 2023-36, Utah State Records Committee (entered Aug. 28, 2023) and Kummer v. Sevier County School District, Decision and Order no. 2023-29, Utah State Records Committee (entered Nov. 28, 2023). In those cases, we decided that a surveillance camera at South Sevier Middle School that captured a P.E. class “endurance day” involving the Kummer’s daughter was an education record under FERPA, but still subject to GRAMA. Each order was individually appealed and then consolidated since the facts were identical. The appeal in district court will review the Committee’s decision and will then either affirm or reverse our decision in those cases. As a result, we believe it prudent to await the court’s decision in that appeal before we review the case before us. Accordingly, we continue this hearing to a later date.
ORDER
THEREFORE, for the foregoing reasons, Petitioner’s appeal is continued to the first regularly scheduled meeting that will occur after the third district court issues a decision on the merits in case no. 230600084.
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 29 day of April 2024.
BY THE STATE RECORDS COMMITTEE
Marie Cornwall
Chair, pro tem, State Records Committee